Dealing with gross misconduct in the workplace is one of the most challenging scenarios for any employer.
It’s a serious matter that can lead to immediate termination of an employee or employees employment, but it’s critical to approach it cautiously to ensure compliance with employment laws and avoid unnecessary unfair dismissal claims or disputes.
If you suspect an employee of gross misconduct, this step-by-step guide will help you to navigate the process effectively.
What is gross misconduct?
Gross misconduct refers to severe behaviour that undermines the trust and confidence between an employer and employee. Examples include:
- Theft, fraud or dishonesty
- Physical violence or threats
- Harassment, bullying or discrimination
- Breach of confidentiality or data protection laws
- Gross negligence causing damage or harm to your business a client, or another employee
- Alcohol or drug use, which impairs performance or safety
How to manage gross misconduct…
It’s important for you to follow ACAS guidelines to protect yourself from unfair dismissal claims.
ACAS guidelines state that you should consider the following steps when dealing with cases of Gross Misconduct :
1. Suspension: Acas recommends suspending employees only if absolutely necessary, while making it clear that their suspension is not a disciplinary action. You would only suspend an employee or employees if them remaining in the business would mean that the acts of Gross Misconduct would continue or by remaining in the business it could impact the disciplinary investigation.
2. Investigation: You should notify the impacted employees that you will be conducting an investigation. You’re expected to conduct a fair and impartial investigation before deciding whether or not to take disciplinary action. This needs to be conducted by someone who can ask good investigative questions to get to the bottom of whats happened and who will keep the investigation confidential. The investigation can be outsourced to someone like Meraki HR if you don’t have anyone internally skilled or experienced enough to manage this process.
3. Notification: The employee should receive a written notice of the fact that the investigation has been concluded and that you are inviting them to a Disciplinary Hearing on the following grounds and provide them with sufficient details and evidence from the investigation, and give them sufficient time to prepare for a hearing – you must give them a minimum of 48 hours notice.
4. Disciplinary hearing: Acas emphasises the importance of allowing employees to respond to allegations in a formal meeting. The right to be accompanied by a colleague or trade union representative is also a legal entitlement, whether they are a trade union member or not.
5. Decision-making: Decisions should be based on evidence and the seriousness of the misconduct. Acas stresses the importance of treating employees consistently and fairly.
6. Communication of the outcome: Employees must be informed of the outcome of the Disciplinary Hearing in writing, including the reasons for dismissal or any other disciplinary action issued.
7. Right to appeal: Acas requires that employees be allowed the right to appeal a disciplinary decision, ensuring another layer of fairness.
8. Documentation: To demonstrate compliance with the guidelines, accurate and thorough records of the investigation and disciplinary process should be kept.
By following these principles, you can ensure that your handling of gross misconduct cases is fair and defensible in case of an employment tribunal.
Final words of advice from us: Don’t do it alone…
Dealing with gross misconduct incorrectly can lead to costly legal disputes and damage your business’s reputation.
An expert HR consultant can guide you through the process, ensuring:
- The correct steps are followed.
- You’re compliant with employment law.
- Your decisions are fair, evidence-based and defensible in an employment tribunal.
If you’ve got a case of Misconduct or Gross Misconduct to deal with, get in touch with us for a confidential chat today.
