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GROSS MISCONDUCT - ALWAYS SPELL IT OUT
July 2010
GROSS MISCONDUCT/ / ALWAYS SPELL IT OUT
The penalty for proven gross misconduct is summary dismissal, which means employment can be terminated without notice or pay. But what’s the risk if an employee says they did not know their actions would be treated that seriously?
In a quandary
Suppose an employee behaves in a way that you believe amounts to gross misconduct and, following a detailed investigation, you decide to dismiss them. They then complain that you had not warned them they could be fired for their actions and threaten you with a claim for unfair dismissal. Are they likely to succeed, or should the consequences of their actions be obvious?
Risky business. According to a recent tribunal decision, they may very well have a court case. So what should you do?
A pattern is forming
An employee – let’s call him Nick – had worked evening shifts for 15 years, but never on Christmas or New Years Eve. His employer, however, decided that too many people were taking these particular days off and it was having an adverse effect on its standards of customer service.
You will come in today
So that it was decided that all staff, without exception, must work on these days and gave them the choice of two shifts, one finishing at 4pm, the other at 8.45pm. Everyone was asked which they would prefer. At this point Nick was a bit naughty and said that he would not be working either of them. Nothing more was said and he assumed this was OK. Nick did not come in on December 24.
Bad boy. On his next shift Nick was spoken to about his absence. However, he was give the benefit of the doubt (as he had not been told he must work) and was advised that he was expected at work on December 31. He refused outright.
Verbal warnings
Nick was warned that if he failed to show up again, he would be subject to disciplinary action. He took no notice and failed to work. He was dismissed for gross misconduct on the grounds that he had (1) wilfully disobeyed a management instruction and (2) taken unauthorised leave despite being told he must work.
Claim. He mounted a claim for unfair dismissal, i.e. he had not been told that this would be regarded as gross misconduct and could lead to his dismissal.
Claim upheld
The tribunal upheld his claim. This was because his employer’s disciplinary policy gave examples of gross misconduct, but this scenario was not one of them. Its fatal error therefore, was that it failed to spell out to Nick, ie. put in writing, that he could be dismissed for gross misconduct if he failed to turn up for work.
Tip 1. A robust disciplinary procedures will always provide employees with clear examples of what you deem to be gross misconduct, e.g. theft, fighting and bullying. It should also clearly state that your list is “only a guide and by no means exhaustive.”
Tip 2. If you suspect an employee might commit an act of gross misconduct, always write to them pointing out that if they go ahead they will face disciplinary action which could lead to dismissal..
Source: Tips & Advice Personnel June 10 2010
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