Gross Misconduct

When an employee loses the plot!

There are words which are used a lot when dealing with employees which rarely mean what you think they mean. Two of these are Gross Misconduct.

Gross Misconduct is behaviour which is so bad that the contract of employment cannot continue to exist. It is surprising how many employers think that Gross Misconduct (GM) is a fairly common event. In truth it should only happen on rare occasions. What many people don’t realise is that the sheer stupidity that some people can exhibit (like the chef who burst into a high level private business lunch to announce there were morons in the kitchen and they shouldn’t be surprised it the food was c**p) does not necessarily amount to GM in the eyes of the law. The defining factor is often down to the intentions of the employee.

Hence a member of bar staff who deliberately steals £10 per shift knowingly causes the organisation damage (however minimal) whereas the crazed chef was not intentionally trying to damage the restaurant, even though the net effect could have been far worse.

A second factor is how bad the damage is to the employer. If you allow the employee to continue working you are giving a fairly strong indication that the behaviour in question was not that bad. Now most of us in business have found ourselves in situations where we have wanted to take a particular course of action, but because of outside events we have had to bide our time. In the case of our chef, in order to be safe in employment law terms we would have to send him home immediately and potentially make the situation even worse as our be-suited customers were left at the mercy of our morons without the guiding skills of a crazy chef.

In this case an Employment Tribunal could find that the behaviour did not amount to GM as the chef was not immediately sent home. However all is not totally lost, the tribunal is entitled to reduce any award to take account of the behaviour of the employee.

The problem is you have to go through the hassle of fighting a court case, before you get to that stage.

In my experience most Employment Judges get it right most of the time. It’s just that you have to go through disruption of getting to that point.

If you believe that one of your employees has done something so bad they deserve to be dismissed, give us a call first, we won’t try to persuade you not to do what you want to do, we’ll just give you the help you need to rake sure you make the right decision for your business.

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