Gross Misconduct

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I’ve caught an employee’s gross misconduct red-handed. Is there any risk in just dismissing them immediately without any process?

We often deal with situations where an employer has caught an employee in the act of carrying out serious misconduct, and understandably, the initial reaction is usually one of “Let’s just sack the employee now.”

If the individual in question has less than two years of service, then there is little risk in doing so. But the picture is very different regarding any employee with more than two years of consecutive service. This is because these employees can bring a claim of unfair dismissal.

Now, you might be thinking: why would an employee ever bring a claim when they were obviously guilty of whatever the misconduct is? Well, the fairness of a dismissal is judged on two fronts: substantive fairness (was it fair to dismiss for the reason(s) given) and procedural fairness (was a fair process followed prior to dismissing).

In a situation like this, substantive fairness isn’t an issue as clearly there is a reasonable basis to believe that the employee is guilty of what was alleged. If this is serious misconduct, then dismissal is, generally speaking, a reasonable outcome.

But if someone with over two years of service has just been dismissed without any process at all, in all but the most exceptional of circumstances, even if they are caught with their hands in the till, this will almost always be deemed a procedurally unfair dismissal.

Now, the claim is likely to be worth very little, if anything at all, given if a dismissal is found unfair on procedural grounds, only a tribunal will go on to ask whether a dismissal would have happened in any event and whether an employee’s own conduct contributed to their dismissal. Where someone is caught in the act, the answer to both is usually yes, in which case a tribunal will reduce compensation – potentially to zero if the conduct is particularly bad. At best, the employee would get wages covering the period that the tribunal thinks it would have taken to run a full and fair process (normally a matter of weeks’ pay).

The bigger cost to the employer is the legal fees, hassle, and stress of dealing with a claim that, in reality, is entirely avoidable. For the sake of running a proper disciplinary process – normally the sake of holding two meetings – this risk can be removed, and the chances of a claim coming in the first place are significantly lowered, too.

There is also the fact that when an employee knows they have been rumbled, there is a good chance that they will resign when they are invited to an investigation meeting rather than face awkward questions. If that happens, then there isn’t even a dismissal so legal risks are minimal, and the employer has obtained the outcome it wanted without opening up lots of unnecessary risk.

So, the takeaway from this is to think carefully about the process before rushing to dismissal for those longstanding employees who are caught in the act. It will likely save you a lot of time and money in the long run.

If you have any questions or need any support please get in touch with our Employment Law Team on 01274 864999.

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