What is Misconduct and What Amounts to Gross Misconduct?
Employers are, of course, entitled to dismiss employees for misconduct. The question which often arises however, is what constitutes misconduct and what constitutes gross misconduct. It is important for the employer to distinguish between misconduct and gross misconduct because of finding of gross misconduct can have very serious consequences for the employee – i.e. he or she can be summarily dismissed. It is relevant, at this point, to briefly consider the application of the Burchell test. When considering dismissing an employee for misconduct, the employer must have a reasonably held belief in the employee’s guilt of the misconduct following a reasonable investigation. In other words, they can’t simply assert that they believed the employee was guilty, and go on to punish him, without first conducting a fair investigation, which, on the evidence, allowed them to genuinely conclude that the employee was guilty. If, following such an investigation, the employer is satisfied that the employee is guilty of the act, then the employee must face the consequences if the employer considers the act to be misconduct. What’s the employer considers to constitute misconduct is, bluntly speaking, up to them. For example, one employer may consider swearing at work to constitute an act of misconduct, whereas another employer may be perfectly happy to tolerate swearing. In short, there is no definition of ‘misconduct’; the same applies for gross misconduct – there is no universally excepted definition and whether something constitutes an act of gross misconduct will depend on the facts of each case – but there is some case law which assists – it must be an act which fundamentally undermines the employment contract (i.e. it must be repudiatory conduct by the employee going to the root of the employment contact). Moreover, the conduct must be a deliberate and willful contradiction of the contractual terms or amount to gross negligence. It is therefore sensible for employers to list, in a staff handbook, examples of acts which they consider as constituting misconduct. In fact, paragraph 23 of the Acas code specifically recommends employers to do this.
“23. Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination”.
Often such lists are expressed to be non-exhaustive so as to provide the employer with some room for manoeuvre. However, if an employer proceeds to dismiss an employee for an act which it considers to constitute gross misconduct which, on the face of it, doesn’t necessarily fit within the ordinary understanding of ‘gross misconduct’ (e.g. a one off incident of swearing or it may face a claim for unfair dismissal unless it’s such an act is specifically categorised as an act of gross misconduct within its handbook).