Does Bad Behaviour Amount to Gross Misconduct?

When an employee behaves badly at work, it’s not always clear whether their actions justify dismissal.

Employers must carefully assess whether the misconduct is serious enough to be classed as gross misconduct, which can lead to dismissal without notice or prior warnings.

Why are Assessments Important?

In cases of ordinary misconduct, employers are expected to follow a staged disciplinary process, which should typically include providing warnings before any dismissal.

However, with behaviour amounts to gross misconduct, employers may be entitled to dismiss the employee summarily (i.e. without notice or pay in lieu of notice). Even here, a fair process must be followed. This includes conducting both a reasonable investigation and formal disciplinary hearing.

What Counts as Gross Misconduct?

The Acas Code of Practice (the Code) defines gross misconduct as behaviour that is “so serious” or has “such serious consequences” that it may justify dismissal for a first offence.

While examples are provided, there is no definitive legal list of gross misconduct offences. The key test is therefore whether the behaviour fundamentally breaches the employment contract (i.e. goes to the root of it), whether through a deliberate act, gross negligence, or even a serious omission.

The Importance of Context

What qualifies as gross misconduct varies depending on the nature of the business and the employee’s role. For example, a health and safety breach may be critical in a nursing environment but less so in an office setting.

Employers must also consider factors such as the employee’s length of service, disciplinary history, seniority, and any mitigating circumstances.

Consistency is also important. Employers must review how similar cases have been handled in the past to.

Our Advice

We advise employers to include a non-exhaustive list of gross misconduct examples in their disciplinary policy. However, it’s important to notice that simply labelling an offence as “gross misconduct” doesn’t make it so. Tribunals will still assess whether dismissal was a reasonable response to the behaviour in question.

When assessing bad behaviour, we recommend employers start by reviewing the policy and the nature of the misconduct. Consider – was the conduct serious enough to breach the employment contract? Were there any mitigating factors?

Finally, you must ensure that any disciplinary decision is proportionate and well-documented.

If you are an employer or employee affected by the above issue and want advice or support in connection with the same, or any employment law or HR issues more generally, please do not hesitate to contact us on 01206 239 761.