Advising employers and employees on gross misconduct

If you are facing allegations of gross misconduct we have the experience to help you understand your position and advise on the best steps to take. We are experienced in challenging allegations raised by employers where there are concerns about the evidence, procedure or the reasons behind the allegations, and many of our clients are directors or senior executives accused of gross misconduct.

We provide quick, practical and clear advice and are happy to discuss your situation, provide ideas for a solution and give you an estimate of the likely legal costs.

What is gross misconduct?

There is no set legal definition of gross misconduct. Thus, employers enjoy some discretion to define what they consider as gross misconduct. However, gross misconduct generally involves serious wrongdoing or gross negligence which is sufficiently serious to justify immediate dismissal. The employee must have acted in a way which is capable of fundamentally damaging the employment relationship.

Employers often find gross misconduct dismissals expedient. However, that does not make it a fair dismissal and you may have grounds to challenge the decision. Based on experience, we list some of the background reasons why a gross misconduct dismissal may be unfair:

Gross misconduct examples

• Theft or fraud, including fraudulent or dishonest expenses claims;
• Serious inability to perform the 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 bodies and the FCA.

Some of the above, if proven, may provide a potentially fair reason for dismissal. However, the position is not always clear cut.  The employer may lack sufficient evidence to support the 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 advise employees on how such allegations can be challenged.

Gross misconduct allegations against directors

Directors have duties over and above those of employees.  When a director is being dismissed, it is necessary to take into account factors such as their fiduciary duties and responsibilities to the company. 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 the duties applicable to the director and what could reasonably have been expected of them in the circumstances.

Dismissal impact on position as director

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

Defending allegation of gross misconduct

You are entitled to a fair and reasonable process, including a proper investigation, an opportunity to put your case forward and, where applicable, an opportunity to appeal.

We often deal with cases where the employer has not followed a proper procedure or has failed to properly investigate the allegations or evidence relief upon. We are sensitive to the need for most employees to leave with a good reference and take this into account when advising on the appropriate approach.

Evidence of gross misconduct

Evidence is crucial. Employers will usually have prepared some evidence to use against you. Our role is to examine the evidence relied upon by the employer and any evidence you may have available to challenge the 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 gathering evidence can be difficult. However, employees do have rights to request information in certain circumstances.  Also, the litigation process does include an opportunity for obtaining disclosure of evidence. If the employer seeks to withhold information that is properly disclosable, the court may order that it be disclosed.

If you are an employee facing allegations of gross misconduct and need clear, practical advice on your rights and the best steps to take, please do get in contact.