In part 1 of our blog, Tamsin James looked at Gross Misconduct from the perspective of the employee. Here in part 2, Luke Menzies responds from the employer’s viewpoint and provides useful guidance on how to avoid a costly unfair dismissal claim.
Luke Menzies: Gross misconduct from an employer’s perspective
Rather like a Supreme Court judge, I can say that I’ve had the luxury of reading Tamsin’s fine article before writing my own, and I agree with her! I too have been involved in advising on ‘too many to count’ gross misconducts during my career, and here are some of the things that I’ve learnt along the way.
1. If, as an employer, you want to make employees realise how important it is to follow a rule – make sure it is written down. It is certainly correct that ‘gross misconduct’ lists in staff handbooks are examples only. However, if you have some very clear rules (e.g. as a manufacturing employee you must wash down equipment and yourself after work), then make sure it is clearly stated somewhere.
2. Just because you have acted one way in the past, it doesn’t mean you have to exactly follow that path again. Whilst consistency is a benchmark in employment law cases, there is always room to accommodate the fact that we are human beings. Using Tamsin’s example, someone could be guilty of gross misconduct for shouting obscenities at their supervisor. However, a long-serving employee who happens to be going through a very difficult bereavement could still be guilty of gross misconduct but given a final written warning due to the unusual mitigating circumstances. This does not create a ‘precedent’ that shouting obscenities will from now on only lead to a written warning: the written warning was an exception to the general rule.
3. Keep an open mind during investigations. Too often, I see investigations whose only purpose seems to be prove the misconduct, rather than a genuine fact-finding exploration. Closed or ‘cross examination’ style questions to the witnesses are the big give-away here.
4. Very few employers relish sacking an employee for gross misconduct. It is extremely unpleasant all round. That being said, I have known employers who just want to get rid of someone, trying to come up with a case that will stick. Expenses claims and computer searches are ripe territory to find examples of gross misconduct, apparently.
5. Following on from no. 4, don’t jump on any misconduct just because you are trying to dismiss someone. I field lots of calls from employers believing they have ‘got’ someone – only for me to advise that I don’t see a case of gross misconduct being made out. If you really want someone to leave your organisation – how about having a grown up chat or a protected conversation instead?
6. Make sure your employee is aware of the evidence against him or her. You do not necessarily have to hand over everything you have gathered, particularly if it is very sensitive or confidentiality is an issue. However, if you make your findings on information you have seen but your employee hasn’t, there is a clear path to a finding of unfair dismissal.
7. The ACAS Code of Practice on Disciplinary and Grievance Procedures is a useful document – but it is not an instruction manual. It is absolutely right to be mindful of the ACAS Code as failure to adhere to it can see an uplift in compensation. It does provide for flexibility, though. If it is fair and reasonable to follow a particular route, make sure you let the employee know why you are doing it.
8. Be prepared to be flexible during hearings. I have seen cases lost where an employer has refused a short adjournment to an employee. We know that there are some cases where it is felt that the employee is using every delaying tactic going, but being as flexible as you can be will help if you end up defending an Employment Tribunal claim. Maintain the moral high ground and ‘play the parent’ all the way through, even if you feel the employee is childishly playing every trick in the book.
9. It is possible to short-circuit your processes if the employee has less than two years’ service. But again, be mindful of this. Yes, they cannot bring a claim for unfair dismissal due to lack of service. But do you want to have a two-tier organisation where only those with sufficient service get a ‘fair hearing’? Might your approach confuse line managers? Also, without due process you might wish the other ‘day one’ claims that might be lurking – discrimination, whistleblowing, health and safety detriment. A good compromise is to use a shortened or cut-down process for those with less than 2 years’ service, so that you are still following a basic process but less burdensome than the full version.
10. Do not use ‘breakdown in trust and confidence’ as the reason for dismissal. Employment Tribunals have wised up to employers who use this catch-all phrase to justify a misconduct dismissal (gross misconduct or otherwise) and nowadays Tribunals really hate it. Yes, you may no longer trust or have confidence in your employee because they messed up a sales pitch, but again (and back to point 5) how about a grown-up chat or protected conversation instead? If it was misconduct, then the dismissal should be a misconduct dismissal. Likewise, if it was for poor performance, it is a capability dismissal. (Leave the ‘trust and confidence’ argument for employees who are bringing a constructive dismissal claim…)
Gross misconduct isn’t something businesses or HR plan for but they do need to be ready for it and, wherever possible, limit the prospects of it happening in the first place. The purpose of employee contracts, staff handbooks and policies are to lay down the expectations and ground rules in terms of employee behaviour. If you need advice on managing gross misconduct in your workplace or would benefit from a review and ‘tightening up’ of your employment contracts, we’d be happy to help you.
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