Gross Misconduct Employment Law Solicitors

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.

How much notice should your employer give you prior to a gross misconduct 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.

How should your employer conduct your gross misconduct investigation?

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.

What evidence should the investigator collect and long does the process normally take?

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.

How will an employment tribunal decide if gross misconduct was a fair reason for my dismissal?

When considering whether your dismissal was fair, an employment tribunal will take various factors into account, including:

• Was the matter properly investigated and was the disciplinary meeting chaired by an impartial person?
• Was the disciplinary meeting held where you could state your case?
• Were you given sufficient notice of the meeting and were you given notice of your right to be accompanied by a work colleague or a trade union official?
• Were you provided with supporting documents and/or witness statements in advance of the meeting?
• Did your employer have a genuine belief in your guilt and was this belief reasonable?
• Did you have an adequate opportunity to state your case?
• Were you given the right to appeal the decision?
• Did your employer follow its own policy?
• Has consistency been applied by your employer for similar previous offences with other staff?

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:

• Genuinely believed that the misconduct had occurred,
• Conducted an appropriate level of investigation and have sufficient material upon which to form that belief.

If other employees have committed the same misconduct, does the employer have to dismiss them all?

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.

Should I resign if I’m facing a gross misconduct allegation?

When your employer alleges that you committed a gross misconduct, it is only natural to want to:

• Defend the allegations,
• Adhere to the process and apologise your employer for the conduct,
• Resign prior to dismissal to avoid the risk of having a dismissal on your record.

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.