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

Workplace dismissal is a complex topic, and there are many different reasons why an employer may choose to dismiss an employee. While gross misconduct is often considered the most serious grounds for dismissal, it is important to note that an employee can be dismissed for reasons that do not amount to gross misconduct. In fact, a dismissal may still be considered fair and reasonable in some circumstances, even if it does not meet the threshold of gross misconduct. This may include situations where an employee has committed minor misconduct or has failed to meet the standard of reasonable behavior expected in the workplace. In this response, we will explore the various factors that can influence the fairness of a dismissal and the circumstances in which a dismissal may be considered reasonable even if it is not based on gross misconduct.

According to a recent Employment Appeal Tribunal judgment, it is sometimes appropriate to fire an employee for misconduct even if there was no fundamental breach of the terms of the employment agreement (i.e., “gross” misconduct).

What is gross misconduct? 

Gross misconduct refers to actions and behaviors that the employer deems to be sufficiently careless, irresponsible, or immoral to fall short of normal workplace norms and damage the relationship between the employer and employee. It is the most severe end of the conduct scale.

What is the difference between misconduct and gross misconduct? 

The implied responsibility of mutual trust and confidence between the employer and employee is fundamentally undermined by gross wrongdoing, which makes termination for a first offense acceptable. Contrarily, small misconduct can grow sufficiently serious to warrant terminating an employee’s employment contract even though it may not immediately jeopardize the working relationship.

Mild misconduct could involve something as simple as a single tardiness that could be dealt with amicably and frequently without the need for any kind of formal disciplinary action. But, continued tardiness after a first and final written warning could ultimately result in a dismissal. On the opposite end of the scale, gross misconduct gives the employer the right to treat the employee’s actions as a fundamental breach of the employment agreement and to fire them without cause or pay in place of notice.

Unfair dismissal against Mr. Hope

The British Medical Association’s claim for unfair dismissal against Mr. Hope was denied in this instance by the labour tribunal. He had been let go because he had brought up a number of complaints that he was unwilling to drop or pursue. The BMA believed that the complaints were frivolous and constituted serious misconduct. Mr. Hope received a payout in lieu of notice upon termination.

In his appeal, Mr. Hope claimed that the panel had not determined whether his actions had in fact constituted gross misconduct. The EAT denied the appeal, primarily on the grounds that it was unnecessary to make this finding to decide the unfair dismissal allegation.

The Employment Rights Act’s definition of a fair dismissal, which the EAT clarified by citing a number of earlier instances, distinguishes between unfair dismissal and wrongful dismissal (ie a dismissal without giving the required contractual notice, which is only lawful if there has been gross misconduct by the employee).

The fairness of a dismissal depends on what the employer reasonably believes occurred, whereas a wrongful dismissal claim requires the court to consider what actually occurred. These issues are undoubtedly intertwined in misbehavior instances, but neither issue is preclusive of the other.

As the EAT detailed in a previous ruling:

When there is something that could be considered gross misbehavior under the provisions of the employer’s disciplinary system (especially if it is contractual), it may be more common for a dismissal to be deemed fair. It might be uncommon for a dismissal to be deemed unfair when there has been no egregious wrongdoing. The existence or lack of gross misbehavior, however, is not relevant in either situation.

Employment tribunal

So, employers have the right to fire someone for misconduct even if that behavior is not specifically listed in the disciplinary system, as it appears to have been in this case. Contrarily, describing something as gross misconduct in the procedure does not ensure that the dismissal for that misbehavior will be regarded as fair. The tribunal’s attention will always be on whether the employer’s decision to fire the employee was reasonable given the particulars of each case.

Can an employee be dismissed without notice or reason for dismissal?

An employee’s employment contract may be terminated instantly or summarily in this situation. This might only be acceptable if the disciplinary issue is serious enough to justify “sidestepping” the regular disciplinary procedure.

Regardless of the type of conduct, including when there is a claim of serious misconduct, the employer is required to dismiss an employee in accordance with a fair process in every instance.

The organization’s disciplinary policy ought to be transparent about what constitutes gross misbehavior, how allegations are handled, and what penalties could be imposed.

If the employee was fired wrongfully without warning and without cause and the employer’s grounds for instant dismissal did not amount to a fundamental breach of the employment contract, they may be eligible to file a tribunal claim.

Confused about what constitutes gross misconduct? Contact us 

Depending on the circumstances, you may have choices while facing disciplinary action for gross misbehavior. As soon as you become aware that you are the subject of disciplinary action, it is important to get legal counsel.

For instance, negotiating an exit with a company might be a speedier option for both parties to settle the conflict on more agreeable terms. If you choose to go through with the disciplinary process but feel that it was unfair, you may be eligible to file a tribunal claim.

If you require qualified legal assistance with a gross misconduct issue, the employment attorneys at Clarity Simplicity can help. Reach out to us for guidance.

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