Workplace dismissal can be reasonable even if it is not gross misconduct 

Gross misconduct is often seen as the main reason an employee can be dismissed for their behaviour, but it is not the only one. A dismissal for misconduct can still be fair even where the conduct falls short of gross misconduct.

This article explains the difference between misconduct and gross misconduct, what the Employment Appeal Tribunal said about it in a well-known case, and what it means if you are facing a disciplinary process.

What is gross misconduct?

Gross misconduct is behaviour so serious that it destroys the trust and confidence between employer and employee. Typical examples include theft, fraud, violence, serious bullying or harassment and serious breaches of health and safety rules. Most disciplinary policies give a list of examples, although these lists are not exhaustive.

The difference between misconduct and gross misconduct

Gross misconduct is treated as a fundamental breach of the employment contract. That can justify dismissal for a first offence, and it allows the employer to dismiss without notice or pay in lieu of notice. This is known as summary dismissal.

Ordinary misconduct is less serious. A single instance of lateness, for example, might be dealt with informally. If the lateness continues after a first written warning and then a final written warning, dismissal may become a reasonable response. In that case, the employee would normally be entitled to their notice period or pay in lieu.

Our article on conduct and capability dismissals explains how misconduct differs from poor performance.

Hope v British Medical Association

Mr Hope worked for the British Medical Association. Over a period of time he raised a series of grievances, but he would not attend a formal grievance hearing to pursue them, and he would not withdraw them either. The BMA treated this as an abuse of its grievance process and dismissed him for gross misconduct. The employment tribunal rejected his claim for unfair dismissal.

On appeal, Mr Hope argued that the tribunal should have decided whether his conduct really amounted to gross misconduct in the contractual sense. The Employment Appeal Tribunal dismissed the appeal. It held that this was not necessary in an unfair dismissal claim. The question was whether the employer acted reasonably in treating the conduct as a sufficient reason to dismiss.

Unfair dismissal and wrongful dismissal are different claims

The case is a useful reminder that unfair dismissal and wrongful dismissal ask different questions.

• Unfair dismissal is a statutory claim under the Employment Rights Act 1996. Conduct is a potentially fair reason for dismissal. The tribunal then asks whether the employer genuinely believed the employee was guilty, had reasonable grounds for that belief after a reasonable investigation, followed a fair procedure and chose a sanction within the range of reasonable responses. The focus is on what the employer reasonably believed.
• Wrongful dismissal is a claim for breach of contract, usually because the employee was dismissed without the notice they were entitled to. Dismissing without notice is only lawful if the employee committed a fundamental breach of contract, such as gross misconduct. Here the tribunal or court decides for itself what actually happened.

Whether conduct counts as gross misconduct can be relevant to fairness, but it is not decisive. A dismissal can be fair where there was no gross misconduct, and labelling something as gross misconduct in a policy does not guarantee that a dismissal for it will be fair. Our guide to fair reasons for dismissal covers the other potentially fair reasons.

Can an employee be dismissed without notice?

Summary dismissal without notice is only justified where the employee has committed gross misconduct or another fundamental breach of contract. Even then, the employer must still follow a fair process. That means investigating, telling the employee about the allegations, holding a disciplinary hearing at which the employee can be accompanied and offering a right of appeal, in line with the Acas Code of Practice on disciplinary and grievance procedures.

A good disciplinary policy should explain what the employer regards as gross misconduct, how allegations are dealt with and what sanctions may follow.

Who can bring a claim, and when?

At present, most employees need two years’ continuous service to claim unfair dismissal. From 1 January 2027 this falls to six months, and the statutory cap on unfair dismissal compensation is removed. Wrongful dismissal claims do not need a qualifying period.

Since October 2026, the time limit for most employment tribunal claims is six months rather than three months less one day. You must normally contact Acas for early conciliation before making a claim, which pauses the clock. Our article on employment tribunal time limits explains this in more detail.

Facing a gross misconduct allegation?

If you are facing disciplinary action, take advice as early as possible. You may have more options than you think. Sometimes a negotiated exit under a settlement agreement is quicker and less stressful for both sides.

If you go through the process and believe the outcome was unfair, you may be able to bring a claim. Our employment solicitors can support you through disciplinary hearings and appeals and advise on whether you have a claim for unfair dismissal.

To discuss your situation, book a free 30-minute consultation or call 0141 471 9166.