Definition
Behaviour so serious that it fundamentally breaches the employment contract, entitling the employer to dismiss the employee summarily (without notice). Common examples include theft, fraud, violence, serious safety breaches, and gross negligence.
UK Context
There is no statutory definition of gross misconduct in UK law. Employment tribunals apply the test from British Home Stores v Burchell (1978): did the employer have a genuine belief in the misconduct, was it based on reasonable grounds, and was a reasonable investigation carried out? Even in clear-cut cases, dismissal must follow a fair process under the ACAS Code. The employer's disciplinary policy should list examples of gross misconduct but note the list is not exhaustive.
Best Practices
- List examples of gross misconduct in the disciplinary policy but state that the list is not exhaustive
- Always investigate before dismissing, even when the evidence seems overwhelming
- Consider length of service, previous record, and mitigating circumstances before deciding on dismissal
- Ensure the employee has the right to be accompanied at the hearing and the right to appeal
Frequently Asked Questions
What is the difference between misconduct and gross misconduct?
Misconduct (or ordinary misconduct) covers less serious breaches such as lateness, minor policy breaches, or low-level insubordination, and is typically addressed through warnings. Gross misconduct is behaviour so serious that it justifies summary dismissal without notice. The distinction depends on the severity and the circumstances.
Can an employer dismiss for gross misconduct without a hearing?
No. Even in cases of obvious gross misconduct, the employer must follow a fair process including investigation, notification, a formal hearing, and the right to appeal. Failing to do so will likely render the dismissal procedurally unfair.
Does an employee dismissed for gross misconduct lose all rights?
No. The employee retains the right to any accrued but untaken holiday pay and any outstanding salary up to the point of dismissal. They lose their right to notice pay (because summary dismissal means no notice period). They can still claim unfair dismissal if the process was unfair.