Gross misconduct

If you are facing allegations of gross misconduct we have the skills to help you. We are experienced in defending against false allegations raised by an employer for an ulterior motive and many of our clients are directors or senior executives accused of gross misconduct..

We provide quick, practical and clear and are happy to discuss your problem and provide ideas for a solution along with an estimate. So, please do call us.

What is gross misconduct?

There is no set legal definition of gross misconduct. Thus employers enjoy the discretion to define what they consider as gross misconduct. However, it is clear that gross misconduct must include deliberate wrongdoing or gross negligence. The employee must have acted in a way which fundamentally damages the employment relationship.

Employers often find gross misconduct dismissals expedient. However, that does not make it a fair dismissal and you may have a defence. Based on experience we list some of the background reasons which are unfair:

Gross misconduct examples

Theft or fraud: which includes expenses;
Serious incapability to perform role: which includes suspected addictions;
Falsification or unauthorised removal of company records or property;
Act(s) of insubordination;
Gross negligence in the performance of duties; and
Failure to comply with internal policies or those defined by professional institutes and the FCA.

Some of the above, if proven, are fair reasons for instant dismissal in most people’s eyes. However, the position is not always clear cut. The employer may lack clear proof that supports their gross misconduct allegation.

Sometimes employers will dismiss on the basis that the employee has done something which has destroyed the relationship of “trust and confidence” between employer and employee. The concept of trust and confidence is a potential grey area and we find defences.

Gross misconduct allegations against directors

Directors have duties over and above that of employees. When a director is being dismissed it is necessary to take into account factors such as fiduciary duties. Directors have responsibilities and fiduciary duties which extend beyond the duties an employee owes to his employer. Any charge of gross misconduct has to be looked at in conjunction with an analysis of how it is reasonable to have expected the director to have behaved.

Dismissal impact on position as director

Firing a director may remove him from employment but may not remove him automatically from the office of director and/or he or she will still retain any shares in the company at that point.

Defending allegation of gross misconduct

You are entitled to a fair and reasonable investigation with an opportunity to put your case forward and an opportunity to appeal.

We often deal with cases where the employer has not followed a proper procedure or has applied pressure to create evidence that is not genuine. We are sensitive to the need for most employees to leave with a good reference and do factor that into our approach.

Evidence of gross misconduct

Evidence is crucial. Employers will usually have prepared some evidence to use against you. Our role is to examine what evidence you may have at your disposal to rebut the gross misconduct allegation. We can manage the collection of evidence and pinpoint what will be important to you.

If you have been cut off from the IT system we know that garnishing evidence is difficult. However, employees do have rights to request information. Also, the litigation process does include an opportunity for obtaining disclosure of evidence. If the employer seeks to withhold information the court can order that it be disclosed.

If you are an employee and need expert, clear, practical advice on your rights if you have been accused of gross misconduct or dismissed for gross misconduct, please do get in contact.