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Myth busting: Employers do not have to follow a strict procedure before sacking an employee for gross misconduct.

Employment laws generate a lot of comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti-competitive, unduly restrictive and in many cases overly generous.

We are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right

This month we look at the procedures needed when sacking an employee for gross misconduct

Myth: Employers do not have to follow a strict procedure before sacking an employee for gross misconduct.


The conduct of an employee dismissed for gross misconduct must be so serious that it allows their employer to fairly dismiss them without notice and without having issued any prior warnings. Typical examples are fighting at work, theft or fraud.

Employees generally need 2 years’ service to bring a claim for unfair dismissal and providing there is no discrimination involved, you are free to sack an employee for gross misconduct without going through a particular procedure if they do not qualify to bring a claim. However, it is good practice not to act immediately and instead to follow a fair procedure as set out in the ACAS Code of Practice by carrying out an investigation, explaining to the employee in advance what she/he is accused of and giving her/him the opportunity to state her/his case before reaching a decision. It is also good practice to offer the right of appeal.

Employees with 2 years’ service can claim unfair dismissal and you will need to follow a reasonable procedure before dismissing, even in circumstances where you believe you have enough evidence to establish guilt (such as if you catch your employee putting money from the till into their pocket) and would like to dismiss the employee ‘on the spot’. This is because the employee might have a reasonable explanation for their actions. In the above example the employee might be able to show that she used her own money to provide change to a customer and then reimbursed herself when there was more money in the till. In these circumstances a reasonable employer would be expected to carry out an investigation to find out whether the till did balance. If it did, the employee’s actions may still constitute misconduct but not gross misconduct and an appropriate warning and training would be a reasonable response.

Different employers will take different approaches to whether or not something constitutes misconduct or gross misconduct. For example, in a work place where health and safety is of paramount importance, breach of a health and safety policy is likely to be regarded in a far more serious light than in other organisations.

It is helpful to include examples of unacceptable conduct that might warrant dismissal without notice in your handbook and disciplinary policy and make sure that these are clearly communicated to your staff. These should reflect the nature of your business and should be reviewed regularly. However, this is not the end of the story and an Employment Tribunal can still find that dismissal for an action stated in the policy to constitute gross misconduct is, in fact, unfair. This is because the conduct itself has to be capable of amounting to gross misconduct - it is not enough for the policy to simply stipulate that it does.

It is worth mentioning that even if you do find that one of your employees has committed an act of gross misconduct, you are not required to dismiss her/him. This is an option available to you but you should still consider alternatives such as imposing a final written warning or demoting the employee (the employee will have to agree to a demotion unless you have a contractual right to do this, but may be willing to do so rather than to lose their job).

For example, if two employees are caught fighting and both are equally culpable, you may decide to give the long term member of staff with a previously unblemished record a final written warning but dismiss the other member of staff who is less reliable or has other warnings on his/her record. You will not be criticised for the disparity in approach provided you can point to the reason underlying your decision and this is one that another reasonable employer would reach.

Finally, it is worth remembering that even if you don’t follow a ‘perfect’ procedure when dismissing someone, you may not have to write too big a cheque! Employment Tribunals can reduce compensation paid to employees who are unfairly dismissed (down to zero if they want to) if they believe that the employee contributed to their dismissal through their conduct, or that following a ‘proper’ procedure would still have resulted in a dismissal.

Have you missed any of our other myth busters?

So far we have tackled the following myths:

1. In order to dismiss an employee, you must follow a particular procedure and if you do so, you can safely dismiss.
2. It’s not possible to retire employees anymore.
3. You can’t make a woman on maternity leave redundant.
4. Parents have the right to work part time.
5. An employer has to accept an employee’s resignation before it will take effect.
6. Employers must provide exiting staff with a reference.
7. Employers do not need to do pre-employment immigration checks on British or EU recruits.
8. You can vary an employment contract by giving notice.
9. An employee’s entitlement to notice is based on how often they are paid.
10. Employers have to accommodate all religious sensibilities and beliefs.
11. Employers can always pay the first £30,000 of any severance payment tax free.
12. Employers cannot lawfully dismiss if their employee is genuinely ill.
13. It is difficult to sack an under performing employee.

Employment Update - September 2015