Definition
The distinction between ordinary misconduct, which is addressed through progressive warnings, and gross misconduct, which can justify summary dismissal. Understanding the difference is essential for applying the correct disciplinary response.
UK Context
UK employment tribunals apply the 'range of reasonable responses' test to determine whether dismissal for gross misconduct was fair. Case law has established that the same act can be misconduct in one context and gross misconduct in another. The ACAS Code of Practice recommends that employers list examples of gross misconduct in their disciplinary policy.
Best Practices
- List examples of both misconduct and gross misconduct in the disciplinary policy with a caveat that lists are not exhaustive
- Consider the context, the employee's role, and the potential consequences of the behaviour when classifying
- Review the initial classification with HR or legal before the investigation begins
- Train managers on the distinction and ensure they do not automatically escalate to gross misconduct for every serious incident
Frequently Asked Questions
Can the same behaviour be misconduct for one employee and gross misconduct for another?
Yes. The classification depends on context. For example, a safety breach might be ordinary misconduct for an office worker but gross misconduct for an employee whose role involves managing hazardous materials. The employee's role, the potential consequences, and the surrounding circumstances all matter.
What happens if an employer treats misconduct as gross misconduct?
If an employer dismisses for what a tribunal considers ordinary misconduct rather than gross misconduct, the dismissal is likely to be found unfair because a reasonable employer would have followed the progressive warning process instead of dismissing. The employee may be awarded compensation.
Must gross misconduct be listed in the disciplinary policy?
While not a strict legal requirement, it is strongly recommended by ACAS and widely expected by employment tribunals. The policy should list examples of gross misconduct while stating that the list is illustrative rather than exhaustive.