Gross misconduct: do employers have to dismiss?

The problem

On occasions, the employer may be subject to conflicting emotions where they are in a situation involving gross misconduct by an employee, including:

• sympathy for an employee who claims in mitigation that they have acted out of character, have reacted badly to a one off incident, has been provoked or is experiencing problems in their personal life which caused them to act as they did; and
• anxiety that to make a finding of anything other than gross misconduct, with the associated summary dismissal, will be seen as a dangerous precedent and suggest that they are somehow 'soft' on discipline.

The solution

The answer lies in understanding the need to separate the outcome of the allegation i.e. whether or not the employee is found guilty of the misconduct, and the sanction that is applied to that misconduct.

For fairness, the employer will need to demonstrate consistency in the decision making process i.e. is the alleged behaviour sufficiently serious to warrant a finding of gross misconduct or not? It is therefore essential for the employer to make an appropriate determination in respect of the act in question. For example, a physical assault will almost always be classed as an act of gross misconduct, even where there has been provocation.

Once the determination of gross misconduct has been made, the next stage is to consider the appropriate sanction in all the circumstances. It is at this point that the arguments of mitigation should be considered.

If the employee is genuinely remorseful and the employer is satisfied that the incident was out of character and that the otherwise trusted employee should be given a second chance, a sanction less than summary dismissal can be imposed.

The level of that sanction will be determined by the disciplinary policy but, if the disciplinary policy is drafted in line with the ACAS Code it is likely to mean a final written warning.

The outcome letter sent to the employee following the disciplinary meeting should clearly identify the points accepted in mitigation and fully explain the reasons for the lesser sanction being imposed.

If a similar scenario occurs at a later date and the same mitigation arguments cannot be substantiated, the employer will be entitled to dismiss the employee.

In terms of creating a precedent, if the employer has fully set out the mitigating factors which lead to their decision not to dismiss, it is unlikely that these will be exactly repeated on other occasions. Only in situations where the same or substantially similar circumstances exist will the employer be bound to impose the same lesser sanction.

Some other points on misconduct dismissals:

• An employer does not have to wait for the outcome of a criminal case if, after a proper internal investigation, the employer is satisfied that dismissal is appropriate in all the circumstances.
• Even in cases of the most obvious incidents of gross misconduct, the employer is well advised to carry out an investigation (even if this is quick and simple) to avoid a later finding that the dismissal was procedurally unfair. Such an outcome could result in an uplift to any compensation awarded by a tribunal for having failed to comply with the ACAS Code.
• Employees engaged on fixed term contracts will be entitled to be taken through the same dismissal procedure as that which applies to permanent staff.
• Staff employed on or after 6 April 2012 must, in most cases, be engaged for two years before they are protected from the right not to be unfairly dismissed (although there are some exceptions to this).
• Employers should always give a reason for dismissal. The failure to give a reason is not only actionable in the tribunal but can lead to an assumption or inference that the dismissal was discriminatory or for other unlawful reasons.