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Misconduct and Gross Misconduct Dismissals

There are affectively two types of conduct dismissal.

  1. Dismissal for misconduct after receiving previous warnings for misconduct.
  2. Gross misconduct dismissal that only requires one event which if it amounts to gross misconduct is capable of giving a ground for dismissal on this basis.

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An example of misconduct

Theresa Green works for Fred Thimble Makers Limited. Theresa has worked at the Company for three years as a Secretary/Receptionist. In the last year, she received a verbal warning following the disciplinary process for lateness. She received a written warning for being rude to a client after a disciplinary process. She received a final written warning again for lateness and a couple of weeks after receiving the final written warning she is late again. Provided the proper processes are used in these type of situations, the Company can dismiss for misconduct. She is already on a final written warning. The final written warning is normally in force for one year. She has committed an act of misconduct. It does not have to be connected with the reason for the final written warning. Therefore, the employer could start a disciplinary process and legitimately dismiss Theresa for being late.

The dismissal would have to be with notice which would mean that she would be entitled with three years service to three weeks notice plus holiday pay when she was dismissed and of course she would be entitled to the right of appeal.

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An example of gross misconduct

Rick O’Shea is a Security Guard at Fred Thimble Makers Limited. He was on duty at night on his own as a Night Watchman. He decides whilst he is on duty that he is going to have a drink of alcohol. The Company’s rules are that no one can drink on duty and he is found stinking of alcohol at 7.00 a.m. by his Supervisor when he comes to open the premises. Is this capable of amounting to gross misconduct? Yes it is because there is a clear note that drinking on duty is not acceptable. He is unfit through alcohol and he is also sleeping on duty so he is not doing his job and he is neglecting his job. Again, provided the correct process is followed, he could be dismissed for gross misconduct this time with no notice although he would still be entitled to holiday pay.

This is the difference between misconduct and gross misconduct. In order for something to amount to gross misconduct it has to be so serious as to go to the root of the contract. Various examples of gross misconduct include:

  • Fighting
  • Being drunk on duty
  • Stealing
  • Harassing people
  • Subjecting people to racial abuse
  • Failing to obey reasonable management instructions

There are many more examples of things that can amount to gross misconduct and this list of examples is by no means exhaustive.

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Lets now deal with our gross misconduct dismissal for a misconduct dismissal which can be unfair.

Remember I refer to Theresa. The same example, she is on a final written warning however instead of going through a disciplinary process, her Manager sacks her for misconduct. By failing to go through the disciplinary process, that has rendered the dismissal unfair.

Another example would be that in Theresa’s case:

  • They go through a disciplinary process
  • Give her the right of representation by a work colleague
  • Give her written reasons for the Disciplinary Hearing and sufficient information to answer the allegation at the hearing.
  • At the hearing, she says “I was late this occasion because I witnessed a road traffic accident and I was assisting a bystander who was slightly injured. I also gave my details to the Police Officer who attended”.
  • If the person dealing with the disciplinary did not investigate that and decided he believed she was lying, then that would be unreasonable.
  • The person conducting the Disciplinary Hearing could obtain the details from the local Police or ask her to find out the Police Officer’s details so he could check it himself.
  • Failing to conduct a reasonable investigation can make a dismissal unfair. This is one of the tests that the Tribunal will apply in determining whether a dismissal is unfair or not, under a case called Burchall -v- British Home Stores.

I now go back to Rick, our second example.

Rick at his Disciplinary Hearing admits consuming alcohol but he said his daughter had just given birth to his first grandchild. He told the Night Foreman and the Night Manager and they had had one drink to celebrate. He had worked for three consecutive weeks on nights for seven days a week, 12 hours per day.

This is a difficult one. There are clearly mitigating factors particularly to the falling asleep on duty but in the letter of the rules, all three of them should have been dismissed. It is not for a Tribunal to substitute its on view on whether dismissal is appropriate or not. The decision to dismiss may have been harsh but it could still have been within a reasonable range response for an employer to do.

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In Rick’s example, if it had been the case that he had simply been found asleep, then the situation would change because without the alcohol and with the fact he had been required to work excessive hours over a long period, then in these circumstances, I believe a Tribunal would not consider that to be a reasonable dismissal and in fact, the employer would be in breach of the Working Time Regulations and the dismissal would be unfair.

Having considered some examples, let’s just reaffirm what the position is as far as the Tribunal in determining whether a conduct dismissal is fair or not.

There are three tests.

Test number one - was the investigation reasonable conducted?

Test number two - the finding of the investigation caused the decision maker to have a reasonable belief that the act was committed which was complained of

Test number three - was the response of the employer reasonable in all the circumstances?

If an employer does not allow an appeal, that in itself will cause an unfair dismissal.

Under the new Regulations which came into force on the 1st October 2004:

  • The employer is obliged to put the allegations in writing
  • Give the employee the right to be accompanied by a work colleague or a Trade Union Representative
  • The employer must give a right of appeal to any disciplinary action.
  • Failure to do these basics will cause findings of unfair dismissal and an entitlement of up to four weeks pay just for those failures and not taking into account any mitigating or contributory factors.

This concludes the brief introduction into unfair dismissal but please be aware that it is a brief introduction and does not attempt to answer all potential questions on unfair dismissal but it is there for a general guide as specific most frequently asked questions and deal with other queries you may have.

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Unfair Dismissal Checklist

If you complete this checklist, this checklist will help purely as a guide to determine whether you should progress your claim and seek advice.

Since 2004, when we founded this site we have helped thousands of people with employment issues. If you do nothing about your employment problems then things can only end in your employers favour - probably not what you want. With the experience of thousands of cases we can help you fight your case and get a good result. To help you, we need to know what is happening to you so that we can help - It will take you a couple of minutes to complete the Claim Evaluator form that will enable us to help you

To see if you have a claim click here to use our Claim Evaluator

You need to get advice quickly if you are to help get a good result, your employer may have lawyers working already and so you need advice to fight your corner, tell us what happened and we will get the most appropriate Employment Law expert to call you immediately at no charge and tell you what can be done, click here

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The site author/owner has endeavoured to give clear information to benefit the reader. The information is no substitute for obtaining specific advice about any claim you may have from a person qualified to give it. The examples, and circumstances described etc bear no relation to any actual case and any resemblance to real circumstances is purely accidental and unintentional. The site author/owner accepts no liability for any mistake, error or inconsistency in the text and the reader should ALWAYS OBTAIN specific advice about his/her own situation. In order to assist the reader, you can give your details so that a qualified advisor can call you free of charge and assist you further via CLAIM EVALUATOR