Avoiding Mistakes in Gross Misconduct Dismissals

Extract: An employer discovers a serious incident. Their immediate thought is: “it’s gross misconduct”. With this first impression in mind, it is tempting to rush into confirming a dismissal. But it is always sensible to press the pause button before moving forward. There are important procedural boxes to tick to avoid successful tribunal claims. There are common pitfalls which are rectifiable. Henry Cross at Osborne & Wise offers practical suggestions for HR when managing these processes.

Dismissals for gross misconduct have been all over the headlines recently. The CBI recently sacked its director-general, Tony Danker, amidst serious misconduct allegations. Following his dismissal, Mr Danker has amongst other things criticised the CBI’s process. With this background, we wanted to highlight some common mistakes companies make in this area and suggest some solutions.

Mistake 1: Insufficient Process

Before moving forward with any misconduct dismissal it is crucial to reflect on the procedure to be adopted. All too often dismissals for fair reasons are compromised because the process adopted is flawed. As a bare minimum you must have: i) conducted an investigation; and ii) held a disciplinary hearing. In the investigation, the investigator should be looking at all relevant evidence and making objective findings. In the disciplinary hearing, the disciplinary chair should consider the investigation findings.

They should listen to the employee's side of the story and then make a decision on the disciplinary outcome. It is sensible to follow an organisation's own disciplinary procedure. It is surprising how often employers forget this in practice. Employers should also check whether its disciplinary procedure is contractual in nature. If it is, any divergence from its contents could lead to a breach of contract claim. Throughout the process, it is vital to maintain a paper-trail. This includes letters sent and full records of meetings.

Also bear in mind that all relevant documentation is disclosable in Tribunal proceedings. This includes WhatsApp messages, texts and exchanges on social media. Those involved in the process should always think: "Would I be happy for a Judge to read this message?" If they are unsure of the answer, they should seek legal advice before sending. In some cases, it may be necessary to suspend the individual in question. This allows the organisation space so it can conduct the necessary investigatory steps. In turn, this allows the organisation to come to a sound decision at a final disciplinary hearing. Acas recently updated its guidance on suspensions. It confirms that suspension should not be a knee-jerk decision. Employers should consider alternatives. Having done that, the reason for suspension must be strong. For example, if the individual being at work might threaten the investigation's integrity. This might be if the employer has grounds to believe the employee may try to influence witnesses.

There may be delays out of your control which arise, such as caused by witness unavailability. As long as there is a justifiable reason behind the delay, a Tribunal would not be too concerned by it. It is essential to avoid unnecessary delays. This is particularly the case where there is a suspension in place. In our experience, appointing an ill-equipped person to handle the process causes delays. For example, if they lack experience of running investigations. We also see people appointed with a busy day job, who do not have the time required to conduct a decent process. There is always the dicult decision to be made as to whether to outsource this function to a third party provider such as a HR specialist, experienced lawyer or judge. This can potentially compound the problem of delays because the company loses control over how the process is run and the time frame of the investigation. But it can also give the employer a compelling position if the matter proceeds to trial because it demonstrates that the company wanted to achieve a high level of objectivity and independence in terms of the process itself.

Mistake 2: Predetermining the outcome

It might seem obvious to everyone what has taken place. The immediate thought is that the organisation needs to dismiss the perpetrator. The easy thing is to go ahead and confirm that decision. However, a pre-requisite to any fair dismissal is that those in charge of the process keep an open mind.

The organisation should appoint an investigator wholly independent from the issues. Smaller organisations may find this more dicult but it is important to try. If it is not possible, the relevant person should make a note to explain why. For example: "We only have x managers and y of them are busy." Tribunals will usually be sympathetic if there is a sucient audit trail in place to demonstrate that all reasonable steps were taken to select the right person to manage the process.

The appointed investigator must not only search for evidence supporting the employer's suspicions. The investigator should also make a point of searching for evidence supporting the employee’s position. The investigator must allow the individual to produce any of their own evidence. This often includes suggesting witnesses who might support their version of events. It is necessary to establish the facts on the balance of probabilities/adopting the ‘band of reasonable responses’ test. Where possible the disciplinary hearing chairperson should also be dierent from the investigator. This is not always achievable, but again if the investigation ocer and the disciplinary chair are the same person, an audit trail should be created to explain why this was necessary in the circumstances. The chair should give the individual ample opportunity to tell their side of the story during the meeting, Tribunals are not sympathetic where the note of the hearing involves constant interruptions from the chair. If new evidence comes to light in the hearing, the chair should not be afraid of stopping the meeting if this is appropriate. It might be sensible to request further investigation. Alternatively concluding the hearing and then revisiting further investigation of any new points raised afterwards might be an appropriate course to adopt. Where health concerns are also raised during the hearing, such as symptoms of acute stress and anxiety it may be appropriate to again postpone the hearing pending receipt of an occupational health report. There must of course be a weighing up exercise of whether the consequent delay to the process is necessary, but at the very least this ought to be considered as an option.

Mistake 3: Overusing gross misconduct

Organisations often have their own list in contracts and policies of what the organisation considers to be gross misconduct. It is important, though, to bear in mind that this is a legal test with a high threshold. Just because the allegation being investigated might fit into a generalised category in the employment contract, doesn’t mean that it passes the legal test of what is and isn’t gross misconduct. The conduct must be so bad, a reasonable person would think there is no way the employment could continue.

The action must be a fundamental breach of the employment contract. This is why an employee dismissed for gross misconduct is not entitled to any notice. The action entitles the employer to walk away from the contract. Examples could include fraud, physical violence or other criminal act. Harassment related to a protected characteristic or other discriminatory act (Equality Act 2010). Serious lack of care to duties or other people (gross negligence). Serious insubordination.

Suppose the conduct is worthy of the label gross misconduct. Should the automatic reaction be summary dismissal (immediate termination without notice)? If the individual has mitigating circumstances, could an alternative penalty be appropriate? For example, a Final Written Warning? Employers should reserve summary dismissal for the most serious of oences. Those from which it is unlikely the employment relationship will ever recover.