Being the HR person is not always easy – you often have to face uncomfortable situations, but it’s your role to make them as smooth as possible.
As an HR professional myself, I know people like founders or operations managers often want to address difficult people situations head-on, but they worry about the legal implications.
Gross misconduct is the perfect example, as it can lead to a lot of stress when you don’t have the HR knowledge to deal with it – how do I make sure I have the right procedure in place? How do I avoid unfair dismissals?
All in all, gross misconduct is a difficult situation to deal with by yourself.
In this guide, I’ll help you by introducing the concept of gross misconduct, the procedures you need to have in place to deal with it and how to protect your business and make sure you do right by your team.
What is gross misconduct?
Gross misconduct refers to serious violations of workplace rules and standards that are significant enough to warrant severe disciplinary action, including immediate dismissal without notice or pay in lieu of notice.
It involves behaviour that breaches the fundamental terms of the employment contract and destroys the mutual trust and confidence between the employer and the employee.
To help you fully understand what gross misconduct really is, I’ve put together examples and definitions for each type of situation you may be dealing with.
Fraud or deliberate falsification of records
When an employee falsifies any documents related to the company – whether that is job applications, sick notes or expense claims.
Physical or verbal assault
When an employee threatens or hurts someone in the company whether that’s through verbal or physical violence.
When an employee steals company assets – that can be money, computers, products, etc.
Bullying and harassment of a discriminatory nature
If an employee is accused of bullying someone in or outside their team, especially if any of the bullying is related to race, sexual orientation, or gender.
Deliberate and serious damage to property
When a team member decides to destroy or damage company assets. Again, in this case, it can be as simple as a computer, or as big as the office where the company is operating from.
Bribes and secret payments
In some positions, many employees deal with third parties who may want to swing the employee’s decision to their advantage (think, for example, if someone is looking to acquire a property to expand their business and the call is made by an employee), leading to potential bribes and secret payments.
Serious breach of trust and confidence
This includes serious breaches of confidentiality when an employee reveals confidential information about the company to a third party or data from the company.
Alcohol and drug abuse
Although this is entirely a personal matter and something people may struggle with, there is often a strict policy when it comes to alcohol and drug abuse, mainly linked to health and safety at work.
Non-Disclosure Agreement (NDA) breach
Many companies get their team members to sign NDAs to avoid any confidential information being revealed to their competitors or to people outside of the company – this means that employees who breach this NDA may be subject to legal pursuits.
This includes different situations that can arise when, for example, an employee refuses to obey an order. Serious insubordination can even be about having an attitude problem and being rude to colleagues and customers.
Conviction on a criminal charge
If relevant to the employee’s job or to the company, criminal charges can be an issue that may lead to dismissal – think, for example, legal counsel in a business.
These are just the main reasons why a team member may be accused of gross misconduct, however, please note that depending on the kind of business you’re running, it’s crucial for you to have clear procedures in place that outline what type of behaviour is prohibited at your company and how you intend to deal with the matter.
5 steps to Dealing with gross misconduct at Work
1.Have a clear disciplinary procedure policy in place
As I mentioned before, it’s crucial for you to have a clear disciplinary procedure policy in place when dealing with gross misconduct at work – this policy will apply to all of your team members, no exception (although there might be exceptions when they are still in their probationary period or when working as a contractor).
The policy can be modified at any time depending on when the company sees fit, and it will ensure you:
- Treat all of your team members in a fair way, removing as much bias as possible in the process and with a standardised procedure
- Set out the right expectations when it comes to your team’s obligations
- Give managers clear guidelines so they can flag and deal with misconduct the right way
All of these guidelines are outlined in ACAS Code of Practices on Disciplinary and Grievance Procedures for more details.
2.Conduct thorough investigations
To gather and understand all the facts, you’ll need to conduct investigations in line with your current procedures.
Here’s what the investigations should be about:
- Meeting with the team member involved in the alleged gross misconduct to understand what happened and put together the facts
- Meet with witnesses involved in the matter
- Note-taking of what is being said and by whom during meetings so you have a written record
- Potential suspension of the team member depending on the nature of the gross misconduct and how serious it is whilst the investigation is being carried
Once you’ve heard every party involved and gathered all the facts, you need to draw the right conclusions.
There are several aspects to take into account to come to the right decision:
- The gravity of the offence and whether the procedures give guidance as to what’s a fair outcome
- Whether there are any mitigating circumstances to the gross misconduct – that will be something you get from the employee and the witnesses
- The level of action applied in similar cases in the past to remain fair and align your HR compliance processes
- The individual’s disciplinary record and general service – if this is a one-off, there might be room to play around
- Whether the proposed penalty is reasonable and proportionate in all circumstances
4.Organise a disciplinary hearing
Once you’ve looked at the facts and decided whether disciplinary action needs to go forward, it’s time to organise a disciplinary hearing for the team member involved in gross misconduct.
Here’s how to proceed:
- Send a letter stating the date, time and place where the hearing will take place
- Include details of the alleged gross misconduct and what it might lead to
- Give the employee all the documents including witness statements so they can prepare their response
- Nominate someone to conduct the hearing and ask an HR representative to take notes during the hearing
- Inform the employee that they can ask a union representative or a colleague to be present
In some cases, you may have to postpone the disciplinary hearing if you don’t have all the facts.
5.Letting team members appeal your decision
Legally, you have to let team members present their response during the disciplinary hearing, but they also have the right to appeal the decision you’ve made.
The appeal has to be requested within one week of the decision. Following this, a final meeting will be organised with a senior member of the business, and where the team member can bring a union representative or a colleague to stand by their side.
Outcomes of the appeal depend on several factors when it comes to gross misconduct, and you’ll have to inform the team member of your final decision by writing within one week. Once this is done, the decision is final and the employee cannot appeal a second time.
The importance of addressing gross misconduct
Gross misconduct should not be taken lightly – in fact, you should make it your priority when it comes to disciplinary procedures as it will create massive issues within your business if you don’t.
Here are a few extras on how to make sure gross misconduct does not go amiss:
- Having reporting and investigation procedures in place
- Making it a duty for your team members to report suspicion of gross misconduct
- Making sure the team are aware of all the behaviours and actions that constitute to gross misconduct
- Creating policies to protect confidentiality and whistleblowers
- Having clear reporting channels to communicate with
- Training people to lead investigations
In the event you do have to deal with gross misconduct having the relevant training will make it an easier journey, but the best way to protect your business from it is to make sure you address issues promptly and thoroughly
How to keep gross misconduct from happening
There are many steps you can take to ensure to try and avoid cases of gross misconduct happening at your company.
Let’s start by stating that, when it comes to small businesses and startups, you may come across different incidents that could constitute gross misconduct in comparison to a bigger company, the type of situations you deal with may differ from company size and industry.
Certain industries are also more at risk of encountering gross misconduct within their ranks, however, this does not mean you shouldn’t train your employees.
Here are the steps you can take so you don’t take the risks of having gross misconduct at your business:
- Taking proactive steps to prevent gross misconduct
- Training employees to standards of conduct
- Getting employees to understand the consequences of their actions
- Creating a space where people feel listened to, and where they can express concerns or flag any inappropriate behaviours to their managers
That’s it for today – for me, preventing gross misconduct at work impacts all layers of your business, whether that’s hiring or culture, so you should really commit to reinforcing a safe and ethical workplace for all.
If you’re not sure how to do this, you can also ask an HR advisor like me and my team – we can not only help you build the right HR policies and procedures but also stand by your side when difficult situations arise. Ready to find out more? Book a call today.
Gross misconduct FAQs
What is the difference between misconduct and gross misconduct?
Misconduct and gross misconduct mainly depend on the seriousness of the misconduct.
Examples of misconduct usually imply actions that have not yet affected the company in serious ways such as poor timekeeping, excessive use of personal email, or failure to comply with a specific instruction.
Gross misconduct can be the result of all these actions, but they often have to happen regularly or seriously damage the business’ reputation or integrity, such as physical abuse or fraud, for example.
Does gross misconduct automatically lead to an employee’s dismissal?
Not necessarily – it often depends on whether the gross misconduct has been proven to be one or how serious it is. There are a lot of factors at play, and if you’re not sure how to go ahead, you can always ask us for some help.