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The label of ‘gross misconduct’ applies to behaviour of an employee which is considered so serious as to make it impossible for the employer to continue to employ the individual. A tribunal will need to be convinced that the act goes to the very heart of the employment relationship, and has destroyed it irrevocably. It is generally considered a ‘rare circumstance’ although in some industries it may be more prevalent.
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Management of an alleged case of gross misconduct generally follows the same guidelines but advice should always be taken because of the importance of the factors involved. A gross misconduct finding usually ends with dismissal without notice pay. However, recent case law, has provided us with clarification that a finding of gross misconduct will not always justify dismissal. Therefore, various factors must be taken into consideration to ensure a fair dismissal.
Below are some important points to consider:
- 1) Remember if the matter is so serious to strike through the heart of the contract then you should remove the opportunity for the same behaviour to occur again, if the employee has a case to answer for the allegations in consideration;
- 2) In some cases, if there is a significant delay in suspending (without reasonable justification), or if the employer fails to suspend the employee altogether; this can be viewed as ‘undermining’ the concept of gross misconduct;
- 3) Investigation is as important with allegations of gross misconduct as with any other investigations, a tribunal will still expect an investigation and a fair procedure;
- 4) The employee’s mitigation (reasons they give for their behaviour) is a very important factor. It is not an ‘automatic jump’ from gross misconduct to dismissal and any reasons given for the behaviour must be considered;
- 5) Ensure that the gross misconduct penalty is being consistently applied (subject to mitigation);
- 6) It must be clear what breaches are deemed to be gross misconduct and these must be enforced for all allegations.
To find out more about gross misconduct, call Employers Direct now on 0800 144 4050.