Gross Misconduct Employment Law Solicitors
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Gross misconduct refers to the behaviour of an employee, where their behaviour is severe enough that it breaches their contract and destroys the relationship with their employer. This can be either gross negligence or a deliberate act by the employee.
The employer is entitled to dismiss the employee who committed gross misconduct with immediate effect and without notice.
Most common examples of gross misconduct include:
You may find more information about what is considered to be an act of gross misconduct in your employment contract or your employee handbook. This can vary depending on your role within your company.
If your employer has clearly outlined what constitutes gross misconduct in advance, they have much firmer grounds for defence.
The expected disciplinary process your employer needs to follow is outlined in The ACAS code of practice. If your employer does not follow the ACAS code of practice and you lose your job, you could make a claim for unfair dismissal and receive compensation.
Prior to the disciplinary procedure being initiated, your employer should first investigate whether the problem can be resolved in an informal way. If the problem can’t be resolved, the ACAS code outlines the following procedure:
You could be facing a suspension on your full pay if you are facing a gross misconduct allegation, pending investigation. The suspension, however, should only be for as long as necessary for the gross misconduct investigation to be completed.
Discuss your case with our Gross Misconduct No Win No Fee Employment Solicitors to find out more.
An investigatory meeting is an attempt by the employer to gather all facts and clarify your conduct. It is not a part of the disciplinary process as its purpose is substantially different.
During the investigatory meeting, you are given a chance to explain your conduct and clarify any matters of concern. Based on your response, your employer will decide if disciplinary action is necessary, or whether further evidence is required. If more evidence is needed, they may choose to call for a second investigatory meeting.
According to the ACAS guidelines, your investigatory meeting should be held without any unreasonable delay. At the same time, your employer should allow reasonable time for you to prepare your case.
There is no strict definition as to what constitutes reasonable as each individual case is different. However, 1-2 days notice normally is not deemed “reasonable”; 5 days notice, on the other hand, is deemed adequate.
Your employer may choose to appoint an individual to act as an investigator. This is usually another member of staff and their role is to consider all evidence and produce a report.
In more complex cases of gross misconduct, where another member of staff is unsuitable or there is a lack of resources, the employer can appoint an external investigator. Wherever possible, the investigator should not be involved in the original conduct being investigated.
The individual appointed to investigate the misconduct issue should collect all the evidence relevant to the case. This includes witness statements, any written documents and any other evidence that will help draw a comclusion.
The investigation itself can take weeks or longer, depending on the issue being investigated.
When considering whether your dismissal was fair, an employment tribunal will take various factors into account, including:
The most fundamental aspect, even though all of the above points are important, is whether your employer had reasonable grounds for believing, and genuinely believed, that you are guilty of the misconduct at the time and that adequate investigation was carried out at the time of those beliefs. This is otherwise known as the “Burchell test”.
In order to constitute as reasonable grounds for the belief, your employer must have:
This depends on any variation of the circumstances of the various employees.
If there are no differences in the circumstances, an employment tribunal would need to consider whether it was reasonable or not for one employee to be dismissed and not the other. It is generally difficult for the employer to give sufficient reason as to their inconsistency.
When your employer alleges that you committed a gross misconduct, it is only natural to want to:
If there is an overwhelming amount of evidence againts you and as a result, your employer instigated the disciplinary proceedings, it is likely that you will get dismissed. Even without such evidence, if your employer has chosen to proceed with disciplinary procedures, dismissal is still the likely intended outcome.
Whether you should resign prior to being dismissed is a question that is often asked. The matter of fact is that resignation will often be construed as guilt by your employer.
You are also forfeiting your opportunity to defend your position or make an appeal against your dismissal. Not only this but you are potentially putting yourself at risk if in the future if your employer decides to disclose to any future employers that you resigned after facing a gross misconduct allegation and any pending disciplinary proceedings.
If you resign with the intention of working your notice period, it is possible that your employer will still proceed with the necessary disciplinary procedures during your notice period and dismiss you with immediate effect. In this instance, the dismissal will supersede your resignation and you will not be paid for your notice period.
Despite the above, a resignation could still be a better option, if your employer has raised an unsubstantiated allegation of gross misconduct. You will have to show that you are in an impossible situation to be able to continue your employment and that it has severed the confidence and trust between you and your employer, effectively resulting in a constructive dismissal claim.
If, however, you decide to remain in your employment for the duration of the disciplinary procedures and you are still dismissed, you could potentially proceed with an unfair dismissal claim instead.
Is it easy for an employer to prove Gross Misconduct?
The employer doesn’t need to provide absolute proof of gross misconduct to start proceedings. Your employer can take disciplinary action if:
Should I resign if I am accused of gross misconduct?
If you have been accused of gross misconduct at work and there is sufficient evidence against you, then it’s natural to want to resign rather than continue with the procedure.
In some circumstances, resignation can be the better option. However, you will have to weigh this up against the fact that your resignation may be a strong indication of guilt.
Your employer can also still continue with the gross misconduct proceedings during your notice period.
If you are looking for a No Win Fee Employment Law Solicitor to represent you, we need to assess the merits of your potential claim which we are normally happy to do free of charge.
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