HR Grapevine - How can HR deal with gross misconduct?

An extract from another interesting article from the team at "HR Grapevine". Click on the link to find our more or register for their regular updates:

Google’s CEO Sundar Pichai recently admitted that 48 employees, including management, have been fired for sexual harassment in the last two years, in an email circulated to staff – Fox News reports.

A Google spokesperson has since said that the behemoth are “dead serious about making sure we provide a safe and inclusive workplace”. And, while Google aren't the first company to be ousted over claims of sexual harassment following the #MeToo movement, it proves that the issue in the workplace remains prominent.

What is gross misconduct?

According to, gross misconduct is defined as the “behaviour, on the part of an employee, which is so bad that it destroys the employer/employee relationship, and merits instant dismissal without notice or pay in lieu of notice”. Dismissal without a notice is commonly referred to as ‘summary dismissal’. Due to its legally complex nature, there are often discrepancies about how to deal handle gross misconduct cases. HR Grapevine have spoken to a number of employment lawyers to find out how to suitably broach gross misconduct cases.

How can HR identify gross misconduct?

Experts have elucidated that gross misconduct is not a clean-cut matter. Kerren Daly, Partner and Employment Law Expert at Browne Jacobson, breaks down the echelons of gross misconduct for HR Grapevine. The following scenarios would be considered severe cases of gross misconduct: being absent without authorisation; assault; theft; fraud; coming into work under the influence of alcohol or drugs; serious incidents of harassment; as well as breaches of confidentiality or health and safety rules. The more severe offences are likely to result in an immediate termination of the employees’ contract.

However, Daly explains that some employers may list offences that are unique to their sector to ensure that employees are explicitly clear on company policy when joining the company. At an oil refinery, for example, because of its flammable nature, she says it would be a gross misconduct breach if an employee were to smoke near premises because of its high fire risk. If gross misconduct breaches result in instant dismissal, the case needs to be handled appropriately and 'by the book' to avoid future turmoil and unnecessary appeals.

How should HR tackle a case of gross misconduct?

Tom Watkins, Partner at Shulmans LLP, says that because gross misconduct warrants immediate dismissal, the case needs to be handled fairly and employers must follow a number of protocol steps:

  • Identify the potential fair reason to dismiss

  • Demonstrate that they acted reasonably in relying upon that reason

For the second arm of the process, he notes five key steps that HR should perform to complete the next part of the investigation process:

  • Undertake a reasonable investigation (the scope of which will depend upon the nature of the allegations)

  • Invite the employee (in writing) to a disciplinary hearing to address the allegations – the accused has the right to be accompanied by a work colleague or trade union representative for this part of the process

  • Provide copies of the information to the employee in advance of the hearing including witness statements, documentary evidence and meeting minutes

  • Set out an outcome with specified reasons – in writing

  • Afford a right of appeal.

Watkins continues that different HR members should conduct the investigation, hearing and appeal and encourages those who need refreshers to seek further guidance in the Acas Code of Practice on disciplinary and grievance procedures.

Are there ways to detect the early stages of employee gross misconduct and are there preventative techniques that HR can implement to thwart it?

According to David Bradley, Chairman and Head of Employment Law at Ramsdens Solicitors, gross misconduct isn’t something that HR necessarily anticipate or plan for, however, the purpose of employee contracts is to lay down the ground rules in terms of employee behaviour. Despite this, Bradley confirms that an intuitive employer may observe early indications that a gross misconduct offence may arise in future.

“I guess an intuitive employer might pick up on the mood or behaviour of somebody who is a bit loudmouthed and free with their opinions and expressing opinions that tend to cause offence. Good HR [practitioners] may well take that individual aside and inform them that they are getting a bit close to the line and that they are starting to upset people.” However, he explains that HR don’t tend to prepare for someone to steal for the company. He says that the introduction of appraisal systems and personal development programmes may help isolate problems way before they are able to develop.“Good HR may well take that individual aside and inform them that they are getting a bit close to the line and that they are starting to upset people.”

Pete Holmes, an Employment Law Consultant at Wirehouse, says that, ultimately, HR should handle gross misconduct “by the book”. He adds: “It is tempting when someone is suspended on full pay that [the case] should all be done and dusted within 24 to 48 hours, but actually, serious thought and consideration needs to take place.”

And, if you need some assistance, Founder and CEO of HR Acuity, Deb Muller says that some organisations provide Employee Assistance Programmes (EAP) to employees who bring forth allegations. She says: “Circumstances may cause the employee to struggle or feel uncomfortable in the work environment during the investigation. If that’s the case, there may be interim actions that can be implemented to alleviate that stress.”    

So, the main piece of advice for HR practitioners is not to rush the process, to do everything by 'the book' and implement clear policies from day one. Not only will this prevent unnecessary upheaval, it is likely to save employers the financial weight of fighting appeals.