I Wonder How Do I Deal With Gross Misconduct in the Workplace?

Serious misconduct can arise without warning and put managers under immediate pressure. The risks are real: productivity, team trust, and reputation can all suffer. Acting promptly and fairly is essential.

This article explains what gross misconduct means in the workplace, the legal framework you should follow, and the practical steps to manage risk.

What is gross misconduct?

Gross misconduct is behaviour so serious that it undermines trust and confidence, which may justify summary dismissal, meaning dismissal without notice or pay in lieu of notice. Typical examples include theft, violence, serious harassment, serious insubordination, gross negligence, or deliberate health and safety breaches.

The Employment Rights Act 1996 provides the core framework. Conduct is a potentially fair reason for dismissal. A dismissal will only be fair if, in all the circumstances, you act reasonably. That means following a fair process and reaching a decision within the range of reasonable responses open to a reasonable employer.

Calling conduct “gross” does not remove the need for a proper investigation, an impartial hearing, consideration of mitigation and consistency with your own rules. In any event, employers should follow a fair process to ensure that the dismissal is fair.

Key Employer Obligations

Any dismissal for gross misconduct must be substantively and procedurally fair. Substantive fairness is about whether, after a reasonable investigation, you had reasonable grounds to believe the employee committed the alleged misconduct and whether dismissal was a proportionate sanction.

Procedural fairness concerns the steps you take: prompt investigation, written allegations and evidence, a disciplinary hearing with the right to be accompanied, a reasoned decision and an appeal, in line with the ACAS Code. Complying with these steps will help ensure the dismissal is fair.

Currently, employees with over two years’ service are protected from unfair dismissal. As noted above, this means an employer must have a valid, lawful reason to dismiss an employee and must follow a fair, legal process before doing so.

Even if the conduct appears to be gross misconduct, you must still investigate adequately and consider factors such as the employee's disciplinary record, training, any health reasons for their behaviour, provocation, and consistency with previous outcomes. These factors may determine whether the behaviour is actually gross misconduct.

From 1 January 2027, employees will gain protection from unfair dismissal after six months’ service. As a result, employers must manage performance, conduct, and probationary processes effectively from the outset, with clear documentation and evidence to support any decisions made during the early stages of employment.

What should employers do?

If an employee has displayed serious behaviour, here is what you should do:

1. Appoint an impartial investigator to gather evidence promptly. Take statements, review documents and any CCTV or systems data, and produce an investigation report that sets out facts without recommending a sanction.
    
2. Invite the employee to a disciplinary hearing in writing. Set out the specific allegations, the possible outcomes (including dismissal), enclose the evidence bundle and confirm the right to be accompanied by a colleague or trade union representative.
    
3. Hold a fair hearing before a different, unbiased decision‑maker. Allow the employee to respond, ask questions and present evidence. Adjourn to assess proportionality and consistency before deciding on any sanction.
    
4. Confirm the decision in writing with clear reasons. Refer to the evidence considered, the sanction and effective date, whether the dismissal is summary or with notice/pay in lieu, any payments due, and the right and process to appeal to someone not previously involved.

What are the risks of getting this wrong?

Falsely investigating a potential act of gross misconduct has serious legal consequences:

Unfair dismissal: If the investigation, hearing, reasoning, or sanction is not properly documented or carried out fairly, or if you fail to follow the ACAS Code, an employee may have a claim for unfair dismissal. Remedies can include reinstatement or compensation.

Wrongful dismissal: Similarly, imposing a sanction where the act was not properly investigated may amount to a repudiatory breach of contract, and the employee may claim wrongful dismissal.

Discrimination: If the dismissal was due to a protected characteristic, such as a disability, and the employer did not make reasonable adjustments, the employee may claim discrimination.

Reputational damage: Failing to investigate fairly sets the tone for future investigations, damaging the company's reputation and reducing morale.

Summary

Managing gross misconduct effectively is about more than identifying serious wrongdoing; it is about ensuring that any action taken is fair, reasonable and legally defensible. Even when allegations appear clear, employers should conduct a thorough investigation, follow a fair disciplinary process, and consider all relevant circumstances before deciding.

By complying with the ACAS Code, following internal policies and keeping clear records throughout, employers can minimise the risk of unfair dismissal, wrongful dismissal and discrimination claims.

Further Advice

If you have questions about gross misconduct or any other employment-related matter, our Peace of Mind Team can provide expert guidance. Our Document Audit Team can also help draft relevant workplace policies.

Contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 023 8071 7717.