Gross misconduct

I’ve been told I’ve committed gross misconduct. What is it?

Gross misconduct is behaviour which your employer believes is so bad that it entitles them to dismiss you at a disciplinary hearing with immediate effect, and without any notice. It is sometimes called ‘summary dismissal’

What counts as gross misconduct?

The most common examples of gross misconduct are:

• Dishonesty
• Theft
• Malicious damage
• Breach of confidentiality
• Internet or email abuse
• Fighting or assault
• Harassment
• Breach of an alcohol or drugs policy
• Actions which endanger another employee’s safety
• Gross negligence
• A serious act of insubordination

Your employer will usually have set out examples of gross misconduct in your employment contract or handbook. This puts them in a stronger position to defend a claim if they have clearly identified in advance what they consider serious and that it has been brought to your attention in advance.

In many situations like dishonesty or theft, gross misconduct will be obvious, regardless of what your employer’s policy or contract states.

My employer says I could be dismissed. What is the process?

The Acas Code of Practice  sets out a benchmark procedure your employer should follow if disciplinary action is being taken because of misconduct.  If your employer does not follow the correct process and you lose your job, you could have a claim for unfair dismissal.

Your employer will usually:

• Investigate the allegations
• Inform you of the issues in writing
• Give you an opportunity to respond
• Hold a disciplinary hearing or meeting with you
• Inform you of the decision in writing
• Provide you with the right to appeal

If you are facing an allegation of gross misconduct, you will likely be suspended pending the outcome of the investigation.

If you are faced with a disciplinary, we can help you put the best case forward, or to help negotiate an exit. If you have already been disciplined, you will want someone who is an expert in employment law to negotiate you a good settlement.

If you feel you have been unfairly dismissed, you must act quickly. You have a very limited amount of time to appeal, negotiate a settlement or start the Tribunal process.

Should I resign before I get dismissed?

When you first face an allegation of gross misconduct, It is easy to make the wrong decision. It is natural to want to:

• Defend the allegations vigorously
• Apologise in the hope that your employer will not take matters further
• Resign before you are dismissed

If there is overwhelming evidence against you and your employer has started the disciplinary process, the reality is you are likely to be dismissed. Even without such evidence, the mere fact that your employer is proceeding down a gross misconduct route all points to them getting ready to dismiss you.

At first glance, it looks like a good idea to leave before you are pushed. Whilst this will be an appropriate course of action in some situations, there are other considerations to think about: how will this look to your employer? It could be seen as a sign of guilt, even though you would be maintaining you are innocent.

You would also be giving up the opportunity to defend yourself, or appeal a disciplinary sanction. This will affect your chances of winning an Employment Tribunal claim.

You will also have no control over how this will look to future employers if your old employer mentions in a reference that you resigned after facing allegations of gross misconduct.

Can I negotiate a deal with my employer?

Negotiating an exit from work is never easy – especially when you are on your own. That’s where we can help.

You will want to leave on the best terms, but emotions may be charged and a dispute can leave you uncertain of your financial future and your confidence low.

We’ve spent years working with employees helping them to negotiate terms for their departure. We provide clear, frank and practical advice to make sure the terms of your exit Settlement Agreement reflect the best deal possible. Our expertise in employment law, contracts, Employment Tribunals and benefits packages all ensure you get the best advice.

If terms can be agreed, you will likely be asked to sign a Settlement Agreement  as a condition of you receiving your money and guaranteed reference. We can complete the Agreement for you.

What if I don’t have 2 years’ service? Are there any claims I can make?

You don’t always need 2 years’ service to bring a claim or negotiate an exit. Call us for free on 08000 614 631, in confidence and without obligation.

If you have been dismissed for a discriminatory reason, for union activities or because you have blown the whistle on your employer for wrongdoing, you can bring a claim for automatic unfair dismissal even if you have worked somewhere for a short time.  We’d like to talk to you to see what we can do to help, so please either call us anytime for free on 08000 614 631 or use the online form.

Even if you can’t claim unfair dismissal, you may have a wrongful dismissal claim for your notice pay.

You can bring a wrongful dismissal claim as a breach of contract in the County Court or in an Employment Tribunal. However, in a County Court you run the risk of paying some of your employer’s costs if you lose.

What do I do now?

This is where we come in. Employment law is all we do.

It can often feel like your employer holds all the power.  They will likely have experienced HR professionals or a solicitor working in the background.  That’s why you need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know every trick in the book.

We will advise you of your options and how best to proceed – whether you want to return to work or would like us to negotiate an exit on your behalf.

You only have a limited amount of time to take action to preserve your employment rights – usually just three months (less one day) from when your employment ends, to bring a claim. The appeals process does not extend how long you have.

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