What is gross misconduct?
Gross misconduct refers to behaviour that is so serious that it fundamentally breaks the trust between an employer and employee. In many cases, it constitutes a breach of contract, and could even amount to illegal activity. This type of conduct usually warrants summary dismissal, meaning that the employee can be let go without notice or pay.
The gross misconduct definition typically includes actions that are illegal, dangerous or deliberately damaging to the organisation. These might be one-off incidents or part of a pattern of unacceptable behaviour. What matters is the severity and impact of the act. Employers are advised to define this in their contracts and policies to reduce ambiguity and support fair treatment.
What’s the difference between gross misconduct and insubordination?
Understanding the meaning is key to applying the right disciplinary procedures in your organisation. One area that can cause confusion is the difference between this and insubordination at work. While both can be disciplinary issues, there are fundamental differences in their definitions, and how they should be approached.
Insubordination refers to when an employee deliberately disobeys a reasonable order or shows disrespect to a manager. While insubordination may be considered misconduct, these actions don’t always amount to gross misconduct, meaning the actions don’t harm others, damage the business, or break the law. Employers must consider the impact and intent of the employee’s actions when assessing whether the behaviour crosses the line, especially when deciding if dismissal is justified.
Gross misconduct examples
While there’s no single, exhaustive list of what constitutes as misconduct, some behaviours are widely recognised as being serious enough to justify dismissal. These include acts that jeopardise safety, breach trust, or violate laws and company policies. Let’s look at some of the most common gross misconduct examples.
Violent or offensive behaviour
Physical violence, aggressive threats or discriminatory abuse fall firmly under the umbrella of this. Whether it’s aimed at colleagues, customers or suppliers, this kind of behaviour can create a toxic working environment and may be a symptom of a bad company culture. Swift action is essential to protect other employees and maintain your duty of care.
Theft and fraud
Stealing from the workplace, falsifying records, or committing fraud against the business or its clients are all serious offences. They often represent a complete breakdown in trust and can lead to legal consequences. Employers should act quickly but carefully to investigate and document such incidents.
Drugs and alcohol
Being under the influence of alcohol or illegal drugs at work, especially in safety-critical roles, can pose a major risk. It may also breach your company’s drugs and alcohol policy. Repeated offences or refusal to engage with support options may constitute and justify dismissal.
Damaging company property
Deliberately damaging equipment, vehicles or other business assets may be classed as misconduct. Even accidental damage caused by recklessness or negligence should be taken seriously, especially if it results in high costs or operational disruption.
Gross negligence
Gross negligence occurs when an employee fails to take reasonable care in their role, leading to significant risk or actual harm. For example, this could be a care worker leaving a vulnerable person unattended, an engineer ignoring safety protocols, or a driver operating a vehicle while unfit to do so. Such failures certainly count as gross misconduct, meaning they’re grounds for disciplinary action.
Breaching health and safety law
Employees are legally required to follow health and safety rules. Flagrant disregard of these rules, especially in regulated industries like construction or manufacturing, can result in accidents or even fatalities. These behaviours often also result in legal consequences for the business or the employee in question.
The law around gross misconduct
Understanding the legal context helps employers to make fair, compliant decisions when disciplinary issues arise. It also supports a consistent approach and protects the business from costly unfair dismissal claims. Here’s what you need to know in relation to UK employment law.
Relevant regulations
Several key laws and codes of practice shape how these issues should be handled in the UK. The Employment Rights Act 1996 sets out the minimum standards for fair dismissal, including the requirement for a lawful reason and fair process. The Acas Code of Practice on disciplinary and grievance procedures offers guidance on handling dismissals fairly and transparently.
The Equality Act 2010 protects employees from discrimination during disciplinary processes, while the Data Protection Act 2018, along with GDPR, governs how investigation data is stored and used. Together, these regulations create a framework that employers must follow to ensure that all instances are handled fairly and lawfully.
Employer rights and obligations
Employers have the right to take disciplinary action if an employee’s behaviour amounts to this. However, they’re also responsible for defining what constitutes this behaviour within their HR policies. Clear definitions help to ensure that expectations are communicated and applied fairly.
By setting out behavioural standards and consequences, employers can create a safer and more accountable workplace. HR teams should regularly review and update these policies to keep them aligned with current laws and business needs.
Employee rights and obligations
Employees facing allegations are entitled to a fair and impartial disciplinary process. This includes being informed of the allegations, having the opportunity to respond, and appealing the decision if necessary.
If an employee is dismissed unfairly, they may have grounds to bring a claim to an employment tribunal. It’s therefore crucial that employers follow due process and carefully document every stage of the proceedings.
How to deal with gross misconduct
Knowing how to handle this issue properly protects your business and ensures a fair outcome for all parties. The following steps apply across a range of gross misconduct examples.
Step 1: Notify the employee of the allegation
Once a potential breach is identified, the employee should be formally informed of the allegation. HR and line managers should also be notified, and a written record kept of all communications. Employers should avoid a knee-jerk reaction of dismissing the employee on the spot. In most cases, it’s better to suspend them on full pay while an investigation takes place.
Step 2: Investigate the allegation and document evidence
A thorough investigation is essential to determine whether the behaviour in question constitutes as this, and what the outcome should be. This could involve gathering physical evidence, speaking with witnesses, reviewing CCTV, or checking digital records. Whoever conducts the investigation should be impartial, trained, and experienced in sensitive HR matters. It’s also essential to carefully document each step of the investigation to ensure transparency, support any disciplinary decisions, and provide a clear audit trail in case of future legal challenges or an appeal.
Step 3: Invite the employee to a disciplinary hearing
If the investigation supports the claim, the next step is to arrange a disciplinary hearing. You must send the employee a formal invitation that outlines the allegations, summarises the evidence, and sets out possible outcomes of the hearing. This helps them to prepare, and ensures that the process remains transparent.
Step 4: Conduct a fair disciplinary hearing
The hearing should be led by someone who has not been involved in the investigation. A panel may be appropriate in some cases. The employee has the right to be accompanied by a colleague or trade union rep, and the hearing should allow time for them to present their side. Following a structured and unbiased disciplinary process is essential to ensure fair outcomes for everyone involved.
Step 5: Carry out disciplinary actions
Once the hearing concludes, a decision should be made based on the facts. This might result in no action, a warning, suspension, or dismissal. If dismissal is the chosen course of action, the employee must be informed in writing, with the reasons clearly outlined, and they should be offered the right to appeal the decision. This helps to avoid claims of unfair dismissal and shows that the employer has followed a fair and lawful process.
Keep on top of employee performance with PeopleHR
Handling the issue properly is essential for maintaining a safe, fair and productive workplace. From defining policies to following the correct procedures, employers need to know where they stand legally and ethically. Understanding the gross misconduct examples we’ve explored in this article can also help to prevent issues before they arise.
PeopleHR’s performance review software is designed to simplify the complex processes of managing employee performance, investigations and disciplinary records. With customisable templates and secure documentation, this solution helps you to stay compliant and consistent in your approach.
To learn more about how we can support your HR processes, view our four minute demo video or get in touch with the PeopleHR team today.
