As a ‘niche’ employment law firm, Menzies Law has seen enough gross misconduct cases to know that matters are not always clear-cut. With a team of lawyers who represent employers and employee clients (but never from the same place, of course!) we have also seen gross misconduct from both sides.
Our experience has shown that there are learnings from these two different perspectives that can actually be valuable. We share those perspectives here from Tamsin James, our employment lawyer who focuses on employee work (part 1), and then in part 2 from Luke Menzies, who advises our employer clients.
Tamsin James: Gross Misconduct from an employee’s perspective
An accusation – or a dismissal – for gross misconduct can be a serious blow for any employee, not just emotionally and financially but also in terms of the potential impact on their future. By way of example, in regulated sectors, a dismissal for gross misconduct may trigger an escalation to an external regulator whose decision may affect an individual’s ability to remain in their chosen profession.
Over the years, I have advised on and challenged many dismissals for gross misconduct – often successfully. This is what I have learned.
1. Is it gross misconduct? This is the most fundamental question to be addressed and, to be honest, most employers (or rather, the manager making the actual decision) do not give it enough thought. There is a useful explanation of ‘gross misconduct’ as ‘deliberate dishonesty or gross negligence’. I find this more useful to focus minds than the legally correct but vague ‘fundamental breach going to the root of the contract’ definition.
2. Examples in the Staff Handbook are just that, examples, not proof. Too often, managers take it as read that an ‘act’ listed as an example of gross misconduct in the Staff Handbook is therefore gross misconduct. I call this the ‘cut and paste’ approach to dismissing for gross misconduct. It means that they have usually failed to address the more fundamental question of ‘is it really gross misconduct?’ (As an example, pushing another employee over might be an act of violence and therefore gross misconduct, but pushing an employee over because they are about to be knocked on the head by an unnoticed forklift truck and you are trying to save them from harm would not be.) The act must always be viewed in its full context.
3. Is there any evidence? At the risk of stating the obvious, you cannot dismiss someone without evidence. And, in serious cases (and gross misconduct cases usually are serious), the investigation should also seek out ‘exculpatory’ evidence – in other words, evidence to show someone could be innocent – not just evidence of guilt. Having said that, the ‘burden of proof’ is not ‘beyond reasonable doubt’ (as it would be in a criminal trial) but ‘on the balance of probabilities’, so this is more favourable to an employer. For an employee who knows themselves to be innocent, this can be difficult to stomach.
4. Was the employee aware that they were doing wrong? If it is an innocent mistake or something ‘everyone did’, this is unlikely to be gross misconduct (again, go back square 1 – is it gross misconduct?).
5. Systemic/organisational failure – are they a fall-guy? People fail and systems fail – but who is at fault? Sadly, individuals can fail as a consequence of the systems around them rather than any deliberate act or omission by them (again, go back to square 1 – is it gross misconduct?).
6. Has the employee been suspended? If you do not suspend, this can be challenged later – because if you do not consider them to be a risk in the workplace, why do you need to then dismiss them without notice? But if you do suspend, it can be also challenged as being a ‘knee-jerk’ reaction. In my experience, employers usually don’t assess and review suspensions properly, leading to an implication or accusation that it was all a ‘fit-up’;
7. Are the allegations clearly articulated – has the employee had a fair hearing? Incredibly, the allegations are often framed differently in various letters and at various stages. It is a fairly fundamental principle of natural justice that an individual must know the allegations made against him and be able to respond to them. Do pay attention to the specific allegations made.
8. Is there mitigation? I have had appeals overturned for all sorts of reasons, from a dyslexic person struggling to follow guidance provided to him in written form, to an employee of 30 years who lashed out and swore at his manager after his dog had just died (as a dog-lover, I totally got this – we got the dismissal overturned).
9. Appeal – I am always encouraged by how many appeals I draft that are actually successful. In other words, this means that someone independent (and more senior) has come in and had the courage to say ‘I am going to disagree: this is not right’. The difficulty is that time-scales are often tight, so employees do need to seek advice as soon as they know the outcome. It gets a little more complicated if there is a successful appeal as this means that there is no ‘dismissal’ (technically, this is called a ‘vanishing dismissal’) but an employee often does not want to return. In those circumstances, they can still resign and claim constructive (unfair) dismissal but, in reality, this is a good time to do a deal.
10. A wrongful dismissal may mean more than just damages for notice pay – it can mean a declaration that they were not deliberately dishonest or negligent. A declaration can therefore often mean more to an employee than financial compensation. Employers often ignore this fairly fundamental psychological aspect in negotiations. So, if you have got it wrong, admit it (I say this to employees also)!
Watch this space for Luke’s advice to employers, but in the meantime if you have any questions about managing gross misconduct cases or setting out expectations of your employees in your contracts or policies do get in touch.
or call 0117 325 0926