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Summary dismissal and gross misconduct

Summary dismissal and gross misconduct can be difficult to comprehend. Read this guide to understand what gross misconduct is, what constitutes gross misconduct and how to summarily dismiss someone without risk to your business.
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Gross misconduct relates to the actions or behaviour of the employee. If misconduct of an employee is so serious that it undermines the mutual trust and confidence between the employee and their employer and merits instant dismissal, this is known as gross misconduct. In this situation, the employee can be summarily (ie instantly) dismissed. This means that the employee can be dismissed without notice or a payment in lieu of notice.

Although there are certain types of incidents or behaviours that will normally amount to gross misconduct, there is no comprehensive list. For this reason examples of what is considered gross misconduct should be outlined in Employment contracts or the staff handbook. It is also important to make employees aware of the repercussions of various misdemeanours in a Disciplinary policy.

Whether or not an act or omission by an employee constitutes gross misconduct will largely be down to what would be reasonably considered to be a serious violation of acceptable workplace conduct. If an employee can successfully argue that they had no reason to believe a certain action would be a sackable offence then it will often be difficult to justify summary dismissal on grounds of gross misconduct.

A few examples of common types of gross misconduct include:

  • theft and dishonesty

  • vandalism of employer property

  • fighting or physical violence

  • gross negligence

  • serious insubordination

  • accepting or offering bribes

  • alcoholic intoxication or being under the influence of illegal drugs (except alcoholism or drug addiction which may be more suitably dealt with as a capability issue)

  • indecent behaviour

  • sabotage

  • fraud (eg making a fraudulent expenses claim)

  • serious breaches of health and safety rules

  • offensive behaviour such as racist or sexist abuse

  • illegal activities and criminal acts, whether during or outside the course of employment

  • bullying or intimidation of colleagues or managers

There are also some more 'grey' areas where it helps to identify such behaviour in advance as being considered serious enough to constitute gross misconduct, such as:

  • downloading or viewing pornography

  • downloading software from the internet or using personal software (where there is a risk of viruses etc)

  • misusing confidential information or setting up a competing business

  • use of social media which tarnishes the reputation of the employer

Some behaviours are unlikely to be reasonably considered gross misconduct, even if they are mentioned as such in company documentation:

  • poor timekeeping

  • absenteeism

  • personal appearance

  • minor negligence or substandard work

These can be dealt with as disciplinary issues. Remember to state in any list of what is considered to be gross misconduct that the list is not exhaustive.

You can summarily dismiss someone instantly for gross misconduct which means you don’t have to give notice or payments in lieu of notice. However, you should investigate the incident and give the employee a chance to respond before deciding to dismiss them. This is to ensure the entire procedure is fair and prevents the risk that the dismissal is potentially unfair as the employee could claim unfair dismissal.

The first thing is to ascertain the facts of the incident and conduct an investigation, interviewing any relevant witnesses and the employee themselves. If necessary, you may decide to suspend the employee (on full pay) while you’re conducting the investigation. However, suspension should only be considered if there is apparent evidence of the alleged misconduct and there are perceived risks to your business.

Arrange a disciplinary hearing and allow the employee to bring a companion (such as a colleague or union official), making sure that the employee is aware of the allegations prior to the meeting. Once you have conducted the hearing and come to a decision to dismiss the employee, you should prepare a Formal letter confirming summary dismissal. This should cover the reason for dismissal, the legal basis for gross misconduct, any prior warnings, the termination date and ineligibility for notice or a payment in lieu of notice, arrangements for holiday pay and final salary payment and the need to return property. It should also mention the right to appeal against dismissal.

It's important to ensure that you only consider summary dismissal for gross misconduct where this is a reasonable and proportionate response in the circumstances. Furthermore, you should follow the correct procedure (see above) and allow the employee to respond to any allegations.

An employee who has completed two years' service may be able to bring a claim for unfair dismissal if they're summarily dismissed due to an action or omission which does not actually amount to gross misconduct. Even if an employee does not qualify for standard unfair dismissal rights (ie because they haven't completed two years’ service) they may still be able to claim unfair dismissal if they can prove that the dismissal was connected to illegal discrimination, health and safety, whistleblowing or trade union activities.

Another consideration to be aware of is any data protection issues. As the dismissal process will involve processing employee personal data, you should tell employees the types of data you might collect about them and what you do with it in an Employee privacy notice (a statement describing how you collect, use, retain and disclose personal information). For further information, read Data protection and employees.

Finally, whether or not an employee has recourse to unfair dismissal protections, they can still pursue a wrongful dismissal claim (where an employer, when dismissing an employee, breaches one or more of the terms on an employee's employment contract) if a summary dismissal was not justified, claiming for any payment which they would have received had they been allowed to work out their notice. Read Wrongful dismissal for more information.

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