Responding to an incident of gross misconduct
When an employee does something which might be gross misconduct, you have to act fast and follow the correct procedures. Here are some tips on how a business should respond to an allegation of gross misconduct.
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These are the most common mistakes that we see when employers are responding to an act of gross misconduct.:
- The employee is sacked ‘on the spot’ with no payment for their notice period.
- The employee is not paid remaining holiday entitlement as the employer does not think that they deserve it.
- The employee is told that they have committed gross misconduct and ‘will probably be sacked’ before any investigation or disciplinary has taken place.
- The employee has money deducted from their final wages to pay for the damage/theft.
- The employer does not give the employee a fair opportunity to prepare a defence in the disciplinary process.
Here’s what should happen:
1. Suspension on full pay
If you see or hear of somebody committing an act of gross misconduct, whether that be a physical altercation, theft or verbally abusing another member of staff, you are never entitled to sack them without notice or holiday pay ‘on the spot’.
If you need to remove them from the business, suspend them on full-pay and send a letter or email the same day, containing the terms of their suspension and explaining what has happened. Terms of suspension may include things like requesting that they do not contact any customers or staff.
If you need to remove them from the business, suspend them on full-pay and send a letter or email the same day, containing the terms of their suspension and explaining what has happened. Terms of suspension may include things like requesting that they do not contact any customers or staff.
2. Investigation
You need to conduct an investigation, even when you SAW them commit an act that constitutes gross misconduct! The investigation may be as simple as conducting investigation interviews with people who witnessed the incident, or an investigation meeting with the person asking them if they did what you thought you saw and why. Make sure you take notes of any meetings that happen and ask your interviewee to sign the notes to say that they agree that what has been written is a true record.
You need to prepare a bundle of evidence that is coherent and shows careful consideration.
There is no set length of time that an investigation should take, it may take a few hours, or it may take weeks.
If you want to outsource the investigation to ensure it is thorough and objective, contact us at [email protected] and we can give you a cost estimate.
3. Disciplinary hearing
When you have all your evidence together, you need to invite the employeeto a disciplinary hearing. You need to send all the evidence you are relying upon along with the invitation letter, such as a copy of CCTV and any witness statements.
Your invite letter is very important. In the invite letter:
- Inform them of their right to be accompanied and make sure you give them 48 hours notice of the hearing.
- Make sure you clearly state what the allegations are and why. For example ‘the allegation against you is gross misconduct in that £450 cash was stolen from the till on 12/03/2019 at 13:00.’ You need to give them a fair chance of putting together their defence and you can only do this if they fully understand the allegation and how it was formed.
- Let them know the potential sanction that may be imposed (remember, no decision is pre-determined before the hearing). For example ‘the potential sanction that we will impose if we believe that you are guilty of theft is summary dismissal.’
Make sure you have a note-taker at the hearing. Send the employee the notes after.Our advisors can be your notetaker if you need this.
4. A disciplinary outcome which dismisses them summarily
Following your hearing, you can either inform them of the decision in person or by letter. Preferably both.
If you terminate their employment, you need to pay all their accrued holiday up until the termination date.
Explain your decision in the letter and how you arrived at it, you need to summarise the evidence and show how you formed a reasonable belief that they committed the act(s).
This letter is your opportunity to let them know when to return to the workplace to collect any belongings or return any company property.
You cannot deduct money to compensate losses from their final payment without a contractual clause that enables you to do this. Even if you have a clause in the contract, the loss you deduct for needs to be tangible, and cannot put them at a financial hardship or below the National Minimum Wage.
5. Employees with less than two years service
In certain circumstances, it may be possible to dismiss an employee without due process (with payment in lieu of their notice period) if they have less than two years’ service as they will not be able to make a claim for unfair dismissal. There are lots of other risks attached to this kind of dismissal so we would urge you to seek advice before doing this.
6. Follow the Acas code of practice
When conducting an investigation or disciplinary, always follow the Acas code of practice, if you face an employment tribunal you will be measured against the standard set out in the Code no matter the size of your business. You can find it here.
Upcoming Events & HR Training for Employers
As experienced HR Advisors and Employment Law solicitors we see first-hand how HR issues can affect both the employee and the employer.
Our training is very well received by attendees and is delivered by lawyers and HR advisors, with combined knowledge and expertise, in a practical way which works for your business.
Bhayani Law clients and charities get discounts on our training and some of our training is available at discounted rates with public funding between 40-100%.
Our events allow you to meet other businesses and build your connections, so do book if you want to come along.
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