Gross misconduct is an act or behaviour sufficiently serious to lead to dismissal without notice or payment in lieu of notice, often abbreviated to PILON. Arguably the most severe sanction; any employers dealing with a gross misconduct issue should ensure that they are acting fairly, lawfully and consistently in taking disciplinary action against an employee.
Gross misconduct differs from misconduct. As the description suggests, a gross misconduct incident is more severe than a misconduct incident. Misconduct incidents may include things like failing to report to work without reporting the absence beforehand or bad time keeping. Similar misconduct incidents may ultimately culminate in a dismissal but, on their own are not sufficient to justify an instant dismissal.
What is gross misconduct?
This varies from employer to employer; the type of work done, the environment within which the work is done and other factors can all determine what constitutes gross misconduct. Ordinarily, it will include theft, physical violence, bullying and harassment, negligence, and insubordination. It is always a good idea to detail examples of gross misconduct within an employer’s internal disciplinary policy. This should always be available to the employees and they should be clear of what conduct and behaviour is expected of them and the consequences of failing to meet those expectations:
Examples of gross misconduct
Physical violence and offensive behaviour
- fighting and physical assault
- bullying, harassment, sexual or otherwise
- behaving in an overly aggressive or intimidating manner
- horseplay that may lead to injury or damage of items in the workplace
Fraud, theft and dishonesty
- stealing petty cash
- taking office supplies for personal use outside of work
- fraudulently claiming expenses
- falsifying work documents
Gross negligence and breaking health and safety rules
- not wearing the required safety and protection clothing
- removing safeguards from equipment
- causing damage to the workplace or items in the workplace
Gross misconduct related to alcohol and drugs
- being under the influence of drugs or alcohol in the workplace
- taking drugs at work
- buying or selling drugs at work
Damage to the reputation of the business
- Any acts of gross misconduct that may cause the business to lose money, damage reputation and lead to legal action.
How to deal with a potential case of gross misconduct
Gross misconduct can give a lawful basis for summary dismissal however, an employer should also follow a fair process. It is not generally advisable to dismiss an employee on the spot. Failure to follow a fair and lawful process in dismissing an individual can give rise to an Employment Tribunal claim for unfair dismissal.
An employer should always seek to follow a disciplinary process, further information on such a process can be found here HL
During an investigation for a case of potential gross misconduct, the investigation should gather evidence to determine whether the act of gross misconduct occurred and also assist the decision maker as to whether the employee’s conduct should be classified as gross misconduct and dismiss them.
In cases of serious misconduct, amounting to potential gross misconduct, it is possible that there may be police involvement for example where there has been an assault or theft. The employer should continue with their investigation and the disciplinary process and if possible, the employer should record the findings of the police as part of the disciplinary process.