0203 178 5361

Gross Misconduct Unfair Dismissal

Our lawyers are highly experienced with advising on gross misconduct unfair dismissal claims. If you have a query, please call us on 0203 178 5361. Or, if you'd prefer, click here to contact us by another method.

Kervin & Barnes regularly advise senior employees, executives and directors on unfair dismissal claims relating to gross misconduct and regulatory breaches. We are also able to assist with Financial Services Authority (FSA) implications and Approved Persons Status.

There are a number of potentially fair reasons for dismissal, including the employee's conduct. Where an employee has done something that is so serious, the employment relationship can no longer continue, this is commonly referred to as "gross misconduct". Sometimes, gross misconduct can cover an occasion when the employee has acted extremely negligently, and has failed to do something. It is more usual, however, to find that it is a particular act, or series of acts, that triggers dismissal.

Often, an employer will suspend an employee while an investigation into the conduct is carried out. This suspension should be reasonable in length, and the employee should continue to receive their pay throughout.

It is normal, when an employer dismisses an employee for gross misconduct, to dismiss summarily, or without notice. This is because the employee's behaviour has been so bad that the contract ends straight away, and there is no right to be given notice or be paid in lieu. The employee still has the right to receive pay for accrued but untaken statutory holiday, even when they have been dismissed for gross misconduct.

If the employer acts unreasonably in treating the act as gross misconduct, and the dismissal is outside the range of responses open to a reasonable employer, the dismissal will be unfair. Similarly, if the employer has failed to carry out a reasonable investigation or their belief in the employee's guilt is unreasonable, a Tribunal will make a finding of unfair dismissal. It may also be unfair to dismiss for gross misconduct if:

• the employer has treated other employees who have done the same thing more leniently in the past, or
• treats two people who have acted together in a different way, or
• the employer has taken into account an expired warning, or
• the employee has been led to believe that their action will not be considered gross misconduct, perhaps because there has been a change in policy which the employer has not publicised, or
• the employer has previously ignored the employee when they did the same thing, or let them off with a lesser penalty than dismissal. 

Unfair dismissal can also be discrimination if the employer has allowed unlawful considerations such as race, gender or religion to factor into the sanction. 

Even if the employer is convinced of the gross misconduct (perhaps because there were witnesses, for example, where two employees were fighting), it will almost always be unfair if the employee isn't given a chance to put their version of events at a disciplinary hearing following an investigation. A failure to follow the ACAS Code of Practice will often lead a Tribunal to find that there has been an unfair dismissal, even where it agrees there has been gross misconduct on the employee's part ­ and they may uplift any compensation although they may also reduce compensation if they find there was contributory fault or if the outcome would have been the same if the employer had got the procedure right.

An employee should always be given the opportunity to appeal against their dismissal for gross misconduct to a more senior manager, and to be accompanied at any hearings by their chosen union or fellow-worker. Sometimes it is appropriate to have a lawyer present or someone like a family member or medical adviser, if the employee has a disability or if they may struggle to understand English during the disciplinary hearings. In a small company, where there is nobody more senior or nobody impartial, the employer may need to arrange for a suitable independent person from outside the company to hear the appeal. 

If you are an employee who has been suspended on suspicion of gross misconduct, or dismissed, or if you are an employer who needs advice about carrying out investigations or dismissal/appeal hearings, why not contact our specialist team of employment solicitors at London's Kervin & Barnes? Our telephone number is 0203 178 5361 or alternatively, click here to contact us by another method. We have offices in both Mayfair and the City and would be happy to meet with you at either location to advise you on your employment matter.

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