If an employee is found guilty of gross misconduct, the employer has the right to dismiss the employee immediately. However, if it is found that the employer did not follow a fair procedure to investigate and dismiss the employee, then the employee may have a claim of unfair dismissal.
What is gross misconduct?
There are varying degrees of misconduct, these are; misconduct, serious misconduct and gross misconduct. If an employee is found guilty of either misconduct or serious misconduct, then they will be given a warning ranging from verbal to first and final depending on the severity of the employee’s action. As mentioned above, gross misconduct can result in immediate dismissal and as such is the sterner of the three.
Examples of gross misconduct may include theft, physical violence, gross negligence, or serious insubordination.
Doffou v Sainsbury’s Supermarkets Ltd: 3201319/2023
Facts of the case:
In this recent Employment Tribunal case, a long-standing night assistant, Mr Doffou, was dismissed from his employment with Sainsbury’s supermarket due to gross misconduct after he was found to have acted dishonestly.
After finishing a shift, Mr Doffou purchased some items, and in doing so he used the self-service tills available. Upon completion of scanning, he selected that he has used zero plastic shopping bags. In fact, CCTV footage showed Mr Doffou taking several bags. Mr Doffou claimed that he was unaware of stealing such plastic bags.
After a disciplinary hearing, the employer held that Mr Doffou had not been absent minded, and that he had been dishonest, deliberately taking the bags and not purchasing them. Sainsburys deemed that they no longer had any trust in him, and he was therefore dismissed. Mr Doffou later appealed this decision, but the employer alleged that this decision was fair and therefore his dismissal was upheld.
Judgment:
Mr Doffou took the matter to the Employment Tribunal, claiming that he had been unfairly dismissed.
It was held that Sainsbury’s had conducted a reasonable and proportionate investigation into the alleged conduct and that Mr Doffou had been given an opportunity to respond. In the judgment, it was stated that the key point was to determine why Mr Doffou took the bags and that this in turn had been achieved by allowing the employee every opportunity to explain his actions.
Based on this, his dismissal for gross misconduct was upheld and his appeal for unfair dismissal was rejected.
How we can help
Here at Attwells we can assist both employees and employers in any situation relating to gross misconduct.
As an employee, we could advise you on your rights and as to whether you would have any claim for unfair dismissal.
As an employer, we could advise you on all necessary steps and precautions to ensure that you act reasonably, mitigating any risks of facing an unfair dismissal claim.
We are always more than happy to assist where possible. Please do not hesitate to contact us on 01206 239784.
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