Misconduct and Gross Misconduct: A Guide for Employers

Managing employee behaviour is a crucial aspect of running any organisation. From time to time, employers may find themselves facing situations where a team member behaves in a way that falls below the standards expected. When this occurs, it is essential to understand the difference between misconduct and gross misconduct – not only to protect the business but also to ensure that disciplinary matters are handled fairly, consistently, and in line with legal obligations.

Mistakes in managing these situations can result in claims of unfair dismissal, damage to reputation, and a negative impact on workplace morale.

Mohammed Balal, Employment Law Specialist at Butcher & Barlow, explains the distinction between misconduct and gross misconduct, the legal framework surrounding disciplinary action, and the practical steps employers can take to handle these matters confidently and compliantly.

What is misconduct?

Misconduct refers to inappropriate or unacceptable behaviour that breaches workplace rules but does not amount to a fundamental breakdown in the employment relationship. It is usually less serious in nature and may include:

• Repeated lateness
• Minor breaches of company policies
• Misuse of company equipment or time
• Unauthorised absence

Misconduct should still be addressed promptly and appropriately. In most cases, it is managed through a staged disciplinary process – typically involving verbal or written warnings – with the objective of encouraging improvement and preventing recurrence..

What is gross misconduct?

Gross misconduct is more serious. It involves actions or behaviours that are so significant they justify immediate dismissal without notice or pay in lieu of notice (a process known as summary dismissal). Examples include:

• Theft or dishonesty
• Acts of violence or threats of violence
• Serious breaches of health and safety rules
• Harassment or discriminatory behaviour
• Attending work under the influence of alcohol or drugs

In such instances, the behaviour is considered to undermine the trust and confidence required in the employment relationship to such a degree that continued employment is no longer tenable.

It is important to note that gross misconduct may vary from one organisation to another depending on the industry, risk profile, and internal policies. Employers should ensure that clear definitions of unacceptable behaviour are set out in disciplinary procedures and employee handbooks.

Legal considerations

Before taking disciplinary action – especially where dismissal is being considered – employers must ensure that their process is fair, reasonable, and well-documented. A dismissal, even for gross misconduct, may be ruled unfair by an Employment Tribunal if correct procedures are not followed.

Key legal points to consider include:

• The ACAS Code of Practice: This outlines the minimum standards for handling disciplinary matters. While not legally binding, failure to follow the Code may result in increased compensation being awarded in tribunal claims.
• Right to be accompanied: Employees have the right to be accompanied at any formal disciplinary meeting by a colleague or trade union representative.
• Right to respond: Before any decision is made, the employee must be given the opportunity to respond to the allegations.
• Right of appeal: Following any disciplinary action, employees must be provided with a clear opportunity to appeal the decision.

Even where an employee has less than two years of service and may not qualify for ordinary unfair dismissal protection, employers must still exercise caution. Claims involving discrimination, whistleblowing, or breach of contract can be brought from day one of employment.

Handling misconduct and gross misconduct effectively

To manage misconduct or gross misconduct appropriately, employers should follow a fair, transparent, and consistent disciplinary process.

1. Set Clear Expectations
   Ensure that all employees understand the standards of behaviour expected of them. Your staff handbook and disciplinary policy should outline the consequences of breaching these expectations and include examples of both misconduct and gross misconduct. These policies should be readily available and explained as part of the induction process.
2. Conduct a Thorough Investigation
   When concerns arise, an objective investigation should be undertaken promptly. For minor issues, this may involve reviewing records or speaking to relevant individuals. In more serious cases, such as suspected gross misconduct, it may be appropriate to suspend the employee on full pay while the investigation is carried out. This should never be viewed as a punishment, but rather a neutral measure while facts are being gathered.
3. Arrange a Disciplinary Hearing
   If the investigation indicates that formal action may be required, invite the employee to a disciplinary hearing. Provide them with the details of the allegations, any evidence gathered, and outline the potential consequences. Employees must be allowed to bring a representative with them.
4. Make a Fair and Reasoned Decision
   Following the hearing, consider the evidence, the employee’s response, and any mitigating circumstances. For cases of misconduct, a warning may suffice. For gross misconduct, dismissal may be appropriate, but this must always be a proportionate response based on the facts.
5. Offer the Right of Appeal
   The right to appeal must always be made available. Ideally, an appeal should be reviewed by someone not previously involved in the decision-making process.

Best practices for Employers

• Have clear policies: Ensure your disciplinary procedures are up to date and accessible, with clear definitions of misconduct and gross misconduct.
• Be consistent: Inconsistent treatment of employees in similar situations may lead to claims of unfairness or discrimination.
• Keep accurate records: Document every stage of the process, including meetings, evidence, and decisions. This can be invaluable in the event of a claim.
• Provide manager training: Equip your managers with the knowledge and tools to deal with disciplinary issues appropriately and in accordance with your internal procedures.

When to get legal advice

Some disciplinary situations can be complex, especially those involving gross misconduct or long-serving employees. In such cases, seeking legal advice can help protect your business and ensure that your actions are legally sound.

How Butcher & Barlow can assist

At Butcher & Barlow, we understand that managing employee issues is not always straightforward. Our experienced Employment Law Team is here to provide practical, tailored advice to support you through every stage of the disciplinary process.

Whether you require assistance drafting clear policies, managing a sensitive disciplinary matter, or understanding your legal obligations, we are here to help.

Speak to our Employment Law Team today to find out how we can support your business in managing misconduct fairly, lawfully, and with confidence.

Mohammed can be contacted on 0161 764 4062 or at mbalal@butcher-barlow.co.uk

 

 

The information in this article was correct at the time of publication. The information is for general guidance only. Laws and regulations may change, and the applicability of legal principles can vary based on individual circumstances. Therefore, this content should not be construed as legal advice. We recommend that you consult with a qualified legal professional to obtain advice tailored to your specific situation. For personalised guidance, please contact us directly.