Dealing with issues of gross misconduct can raise a number of legal risks for employers. Employees are protected by law from unfair dismissal, which means any decision to terminate a contract of employment due to conduct must be the result of a fair and lawful disciplinary procedure.
In this guide, we look at examples of gross misconduct and provide a non-exhaustive sackable offences list to help employers understand how to deal with serious disciplinary issues lawfully to avoid the potential for a tribunal claim.
What is summary dismissal?
Summary dismissal is when an individual’s employment is terminated without any notice period or pay in lieu of notice. This is in contrast to ordinary dismissal where an employee will either be permitted to work their notice period or they will be remunerated for that period in their final pay packet.
Following a dismissal, an employee would usually be entitled to a minimum of one week’s notice where they have been continuously employed for at least a month but less than 2 years. If they have at least 2 years’ service, they will be entitled to 2 weeks’ notice, with an additional week for each further complete year, up to a maximum of 12 weeks. However, in many cases, the contract of employment may make provision for a longer period of notice.
In cases where summary dismissal can be justified, the employee will not be entitled to work out their statutory or contractual notice period or to be paid in lieu of this period.
When is summary dismissal lawful?
The reasons cited by employers for summary dismissal typically focus on the employee having committed gross misconduct. This refers to an act that goes to the core of the employment relationship, breaking down the trust and confidence between the parties, preventing the working relationship from continuing.
Where an employee is guilty of gross misconduct, the employer is entitled to treat this is as a fundamental breach of the implied duty of mutual trust and confidence. In this way, the employer can justify terminating the employment contract without meeting any minimum statutory or contractual notice requirements.
However, when summarily dismissing an employee, a fair disciplinary procedure must still be followed for the dismissal to be lawful. This means that an employer cannot usually dismiss an employee ‘on the spot’, but rather must first investigate all the circumstances surrounding any allegation of gross misconduct prior to reaching any decision to dismiss, including any mitigating factors.
Examples of sackable offences
The following are common scenarios amounting to gross misconduct that can be used to justify summary dismissal, although every dismissal must be approached on a case-by-case basis taking into account all the specific facts following investigation:
- Physical violence or threats of violence at work
- Aggressive or intimidating behaviour at work
- Dangerous horseplay in the workplace
- Indecent or abusive behaviour in the workplace
- Discrimination or harassment of another employee
- Serious insubordination in the workplace
- Serious breaches of health and safety requirements
- Intoxication in the workplace through alcohol or drugs
- Possession of drugs or taking drugs on the employer’s premises
- Buying or selling drugs on the employer’s premises
- Theft, fraud or dishonesty at work
- Misuse of company property
- Damage to company property
- Setting up a competing business
This list of sackable offences is by no means exhaustive, where an employer may have a written policy or rules in place, with specific prohibitions against certain types of misconduct based around their sector or the nature of their business. For example, IT-related incidents, such as divulging a password, will often count as gross misconduct in the financial industry. What constitutes gross misconduct can also depend upon the context in which the conduct takes place.
In most cases summary dismissal will be justified by a single incident of gross misconduct. However, there are instances where the cumulative effect of a series of acts showing a pattern of serious misconduct may also warrant dismissal without notice or pay in lieu. This is even where the employer is unable to point to a single act that amounts to gross misconduct.
How should instant dismissal offences be dealt with?
To avoid a tribunal claim for unfair dismissal, an employer must not only have a genuine and valid reason for the dismissal, they must also show that they have acted reasonably in all the circumstances. This means that an employee must not be dismissed without first conducting a proper investigation and following a fair disciplinary process.
First and foremost, you must have in place a written disciplinary and dismissal procedure. You must also ensure that you follow that procedure, as you would do for any other disciplinary matter, regardless of the seriousness of the allegations or any admission of misconduct.
For any dismissal to be fair and lawful, the following steps must be followed prior to dismissing an employee for a sackable offence:
- Consider if you need to suspend the employee pending the outcome of your investigation and any final decision. You should only suspend an employee where it is absolutely necessary and there are no alternatives, notifying the employee in writing of your decision to suspend and explaining that this is not a disciplinary sanction. You must suspend on full pay, unless their employment contract provides otherwise.
- Conduct a full and fair investigation without delay to establish the facts of the matter. This should involve taking statements from both the employee and any witnesses, and reviewing any other evidence, such as documentation, photos, or video and audio files.
- Invite the employee to a disciplinary hearing where there is a case to answer. The employee must be given written notification of the hearing as soon as possible, with disclosure of any evidence in advance of the hearing to allow them to prepare their case. They must also be informed of their right to be accompanied on reasonable request at that hearing.
- Provide the employee with an opportunity at the hearing to put their case before reaching any final decision. Even where an employee is clearly guilty of conduct that would justify dismissal for a first offence, there may be circumstances that significantly mitigate the gravity of the matter. Depending on the facts, summary dismissal will not always be a reasonable response, where you may need to consider providing a written warning first.
- Notify the employee of your final decision in writing, setting out your reasons and explaining that any decision to dismiss will take immediate effect. You must also explain the employee’s right to appeal, including their right to be accompanied at any appeal hearing. An appeal should be conducted where the employee either feels that the outcome was wrong or unjust, the disciplinary procedure was unfair or they have new evidence to present.
By conducting a proper investigation and following a full disciplinary procedure you can help to ensure that any summary dismissal for a sackable offence is both fair and lawful. You should also retain a written record of the disciplinary process, including the reasons for dismissal, to demonstrate the reasonableness of your decision-making.
What should be included in a summary dismissal letter?
Drafting a summary dismissal letter is not as simple as informing the employee they are being sacked. Given the risk of litigation, it is important to clearly set out the reasons for summarily dismissing the employee. The dismissal letter is essentially your opportunity to demonstrate and document a fair reason for deciding to dismiss on a summary basis, as well as outlining the fair process you have followed in reaching that decision.
When drafting a summary dismissal letter you should include the following:
- The decision to summarily dismiss, with the effective date of termination
- An explanation that the dismissal is without notice or pay in lieu of notice
- The reasons for deciding to dismiss summarily
- The nature of the gross misconduct upon which the decision to dismiss was made
- The way in which the serious misconduct was investigated
- The findings of fact made following the investigation
- The reasons for rejecting any alternative course of disciplinary action
- The right of the employee to appeal this decision, including the appeals procedure
You may also need to deal with any practicalities, such as the return of company property and, where relevant, reminding the employee that they are still bound by any post-termination confidentiality obligations and restrictive covenants under their employment contract.
Review the disciplinary policy
By law, there is no requirement for employers to have in place a specific summary dismissal policy, although all employers must have a written disciplinary and dismissal procedure setting out the basis upon which an employee can be fairy dismissed.
By clearly setting out within your disciplinary procedure, or other policy document, the types of behaviour that might lead to disciplinary action, including what constitutes gross misconduct, you can help to prevent misconduct in the workplace. You can also use this to demonstrate the fairness of your approach to misconduct matters and summary dismissal.
As an absolute minimum, any workplace procedure on disciplinary matters must comply with the ACAS Code of Practice. This sets out the basic requirements of fairness applicable in most cases. It should also be easily accessible to all members of staff in either their contracts of employment, staff handbook or on any staff intranet site.
Risk of tribunal claims
If a decision is made to dismiss an employee without notice, or pay in lieu of notice, employers must always proceed with caution. By summarily dismissing an employee unfairly or unlawfully, you may find yourself exposed to a claim for either unfair or wrongful dismissal.
A claim for unfair dismissal can be based on various grounds, including where the reason you gave for the dismissal was not genuine, the reason was unfair or you acted unreasonably, for example, by failing to follow a fair procedure. A wrongful dismissal claim is based on the right of an employee to seek damages for any failure by their employer to pay the minimum statutory or contractual notice period. In either case, you must be able to prove a fundamental breach of contract justifying summary dismissal.
An employee will only be eligible to claim unfair dismissal if they have continuous employment of at least 2 years, although there is no corresponding qualifying period of service for bringing a claim for wrongful dismissal.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
