Gross Misconduct

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What is gross misconduct?

Gross misconduct refers to employee actions that employers consider unethical, unprofessional, and short of company standards. What that means in practice varies from one employer to another, depending on a company's list of gross offenses.

However, all employers view gross misconduct as acts that warrant immediate termination of employee contracts. Also known as summary dismissal, this punishment is often handed to employees without notice for behaving in a way that can cause other employees or the company harm, even if it's a first offense.

Sometimes, employers may also withhold an employee's salary if their misconduct causes a company extensive financial damage.

What is considered gross misconduct?

Gross misconduct is any act an employee takes against a company's gross offense policies. Such actions are so severe or dangerous to the company or a fellow worker that they completely destroy an employee-employer relationship, leading to immediate dismissal.

On the other hand, employee misconduct refers to behavior that may not necessarily put the company or other colleagues at harm. However, it still warrants disciplinary action from an employee's immediate supervisor or HR manager. An excellent example of such behavior is consistently being late for work.

Examples of gross misconduct

Again, the list of offenses an employer may consider gross misconduct varies from company to company. The following are examples of acts widely or generally regarded as serious misconduct in many organizations:

  • Theft or fraud
  • Physical violence or bullying
  • Damage to property
  • Serious insubordination
  • Serious safety and health regulations breaches
  • Establishing a competing business
  • Discrimination or harassment
  • Wrong use of an organization's property or name
  • Bribing or accepting bribes
  • Leaking company information or causing a serious breach
  • Breach of confidence

This is not an exhaustive list of gross offenses. Different employers consider different actions as gross misconduct.

Gross negligence vs. wilful misconduct

Gross negligence refers to gross misconduct taken without care or regard for the safety and lives of others. Usually, the lack of care exhibited in gross negligent acts is so extreme that it appears as if there was a conscious decision to violate the safety and rights of others.

On the other hand, wilful misconduct refers to gross misconduct intentionally done for a wrongful purpose. Often, wilful misconduct acts disregard an apparent or known risk without knowing it is against certain rules or policies.

Termination for Gross Misconduct: Steps for HR

Termination for gross misconduct: Steps for HR

HR should follow a series of steps before terminating an employee who has engaged in gross misconduct. Taking these steps ensures employers have the legal ground to fire a worker. They include:

1. Investigate the gross misconduct

Unless you witnessed an employee's gross misconduct as an employer, you mustn't only rely on allegations. Instead, conduct a thorough investigation of the allegations to get all the facts straight. That can be by collecting statements of witnesses to the allegation and doing a background check of the employee's disciplinary past.

HR tip

Always assess the magnitude of the gross misconduct to determine whether to suspend the employee immediately as you investigate. This is especially true if the gross offender poses an immediate threat or risk to the business or others.

2. Meet with the accused

Even if you've found overwhelming evidence to support the misconduct allegations, don't rush to fire the employee just yet. Instead, allow the accused employee to explain or defend themselves through a formal hearing.

Once you've heard the whole story, adjourn the meeting to have some time to think about your final decision. At this point, it's essential to consider all aspects, including if the employee is a long-serving member of your team and their disciplinary record.

3. Set up formal disciplinary action

You must inform your employee of the official outcome through a formal disciplinary meeting. The invitation must be in writing through a formal letter, which should also detail the gross offenses committed by the employee. The letter should also mention that the employee can bring a college or trade union representative to the disciplinary hearing.

On the day of the hearing, read the offenses to the employee as written in their letter and hand them the final decision in writing too. If you choose to issue a gross misconduct termination, ensure the following:

  • You list reasons for the termination
  • It was a decision any reasonable employer would make in the same position
  • The decision to terminate was appropriate according to the company's gross offense list
  • You assign a timescale to appeal the decision
  • You keep records of evidence for an appeal in the tribunal 

Doing these ensures you have a water-tight case if the employee fired for gross misconduct decides to appeal to a tribunal.

HR tip

Handling employee misconduct is slightly different from gross offenses. With employee misconduct, you should conduct a thorough investigation of the misconduct and assign disciplinary action depending on the magnitude of the misconduct. 

You should also consistently review your employee misconduct policies and train new employees to know them from day one. Also, don't be afraid to get an outside, impartial investigator to look at the case with a new perspective.

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