Defending an Allegation of Gross Misconduct
An allegation of gross misconduct at work can be extremely daunting, carrying the risk of disciplinary action, including possible dismissal, and potentially impacting your professional reputation.
If you are facing an allegation of gross misconduct, it will be important to understand your rights through the disciplinary process and to prepare for any resulting investigation or disciplinary hearing.
What is ‘gross misconduct’?
Gross misconduct is behaviour that it effectively destroys the relationship between the employer and the employee. It must also be either deliberate or grossly negligent.
Gross misconduct can vary depending on the type of organisation, the nature of the role and the incident or conduct concerned.
The majority of employers will set out their definition of gross misconduct in their disciplinary policy or company handbook. Examples of what commonly is deemed to be gross misconduct include:
- theft or fraud
- malicious damage
- a breach of confidentiality
- email or internet abuse
- assault on another person or taking part in a fight
- breach of a drugs or alcohol policy
- a serious act of insubordination
- any action which may endanger the safety of other employees
- gross negligence
- complaints from staff or customers
What are your employer’s responsibilities when making allegations for gross misconduct?
The ACAS code of practice sets out the expected process your employer should follow in the case of an alleged gross misconduct. This involves:
- fully investigating the alleged misconduct
- informing you, the employee, of the alleged misconduct
- providing you with the opportunity to respond
- conducting a disciplinary hearing or meeting with you and providing you with sufficient notice to prepare
- informing you of the decision in writing
- providing you with the right to appeal
Your employer may decide to hold an investigatory meeting. This is not a disciplinary meeting. Instead, it provides an opportunity for you to explain your conduct and talk over your concerns. Your employer will use this meeting to decide whether disciplinary action is the way forward. Alternatively, they may ask for further evidence to be presented in a second investigatory meeting.
The ACAS guidelines state that the investigatory meeting should “be held without unreasonable delay whilst at the same time allowing an employee reasonable time to prepare their case”. Unfortunately, there is no definition of what “reasonable time” equates to but generally around five days would be seen as adequate.
An investigator may be appointed by your employer to consider the presented evidence and create a report. This is usually another member of staff, although on occasion an external investigator may be brought in. Whether a member of staff or not, the investigator should have no involvement or connection with the alleged misconduct.
An investigation can take weeks or months depending on the individual issues involved.
What to do if facing an allegation
Should you be accused of gross misconduct, you are within your rights to a fair investigation that provides you with an opportunity to defend yourself and appeal.
Ask for a copy of your employer’s disciplinary procedure to ensure you know exactly what steps they will take and what procedures they should follow. This is also a chance to ensure that your employer is abiding by the ACAS Code of Practice on Discipline and Grievance.
Ask your employer for a full explanation of what the allegations are, including:
- the nature of the alleged misconduct
- the dates and times of the alleged misconduct
- details of any witnesses to the alleged misconduct and a copy of the witness statements
- Is evidence of the alleged misconduct drawn from a document, video footage or any other source? Ask for a copy.
- Will previous instructions or warnings be used as evidence? Request a copy.
- Are you at risk of dismissal?
Gather information in your defence.Keep a record of all contact and communications with your employer or relevant colleagues from the moment the allegations are made. If you do not have access to your work computer and/or email account, you do have the right to request information that would have been otherwise available to you such as emailed conversations and documents.
As part of a fair and reasonable process, you should expect to be asked to attend a disciplinary meeting. You may wish to take a disciplinary statement with you as a prompt or to read out.
It is your legal right to be accompanied by a colleague or a trade union adviser. If you would like a solicitor to attend with you, you will need to request permission in advance from your employer. Under current case law, unless the nature of the hearing is so serious that your career as a whole is potentially at risk, legal representation does not have to be permitted.
Take notes during the hearing for your own record.
You can also request that an audio recording is made of the disciplinary meeting, although this is not a legal right. If your request is refused, ask that your employer sets out in writing why they have refused.
At the end of the disciplinary meeting, you should have a decision or at the least, a date when a decision will be made. If you disagree with the final decision, you have the right to appeal. If you decide not to appeal, the decision will be placed on your personnel record.
Can you legally be dismissed if you are found guilty of gross misconduct?
If you are investigated for an alleged gross misconduct, if you are given a chance to respond to a allegations and to defend yourself against the allegations, and if the gross misconduct is proven, you can be legally dismissed from your employment, without notice, or pay in lieu of notice, for a first offence.
Employers must in all instances follow a fair procedure. For the dismissal to be considered fair:
- The employer has to genuinely believe that the employee had committed the misconduct
- The employer must show that they had reasonable grounds for believing this
- When reaching that conclusion, the employer must demonstrate they have carried out a reasonable investigation
Instant dismissal without following fair process may give rise to a claim of unfair dismissal.
If you are dismissed as a result of the disciplinary hearing and wish to appeal, timing will be critical. Any claim to an employment tribunal must be made three months less a day from the date of the dismissal. Before a claim can be made to the employment tribunal, however, you must contact ACAS for early conciliation. Early conciliation may make it possible to settle the dispute without going to court.
Should you be dismissed and make a claim for unfair dismissal, the Employment Tribunal, will look to see whether the employer’s response to the misconduct fell within the “band of reasonable responses”. If, in the Tribunal’s view, no reasonable employer in the circumstances would have dismissed the employee, the dismissal will be considered unfair. Employees with at least two years of service with you can submit a claim to an Employment Tribunal for unfair dismissal.
Remember that to merit summary dismissal, the act must go to the core of the employment relationship and break down the trust and confidence, preventing the relationship from continuing.
Take legal advice if you are facing an allegation of Gross Misconduct
A specialist employment law solicitor will have a full knowledge of the correct procedures and be able to assess wether your employer has acted in accordance with the law when investigating and pursuing allegations of gross conduct. They can assist and support you throughout the gross misconduct disciplinary process and any resulting appeal or claims against your employer.