The Court of Appeal handed down a fascinating judgment in July concerning a gross misconduct dismissal on the grounds of a serious breach of Health and Safety Regulations. A disciplinary policy usually provides a non –exhaustive list of examples of behaviour that meet the definition of gross misconduct. Gone are the days of the health-and-safety-gone-mad-zealots. Gross misconduct. Breach of health & safety rules. Gross misconduct relates to the actions or behaviour of the employee. Endangering oneself or other employees. Any gross misconduct disciplinary procedure needs to be thorough and follow a strict process. However, a clear definition of gross misconduct eludes many employers. In the misconduct and gross misconduct sub-folder, you can find related warning documents such as letters and notices, letters and guidance regarding the conduct of any misconduct-related hearing. Given that definition, while an employer may assume that an employee whose conduct causes a serious and imminent risk to health and safety is guilty of serious misconduct, unless there is a "wilful and deliberate" element to that conduct, the Fair Work Commission may not share that view in an unfair dismissal context. Examples of gross misconduct include theft, fraud, physical violence or a serious breach of health and safety regulations. When employees commit such severe breaches of health and safety rules, this often results in significant liability and reputational damage for employers. Some of these will be obvious for you. Gross misconduct examples 1. What is classed as gross misconduct at work? Gross or serious misconduct, however, has intent. Being drunk or under the influence of drugs at work could also lead to other categories of gross misconduct such as physical violence or negligence of health and safety. Even in non-safety critical roles, employees who are regularly under par at work due to excessive alcohol consumption are liable to be subject to misconduct, or even capability proceedings. What constitutes gross misconduct? When deciding how to respond to misconduct, an employer must ensure they conduct a fair investigation and disciplinary process. There have to been too many instances that prove the value of rigorous health and safety measures. Theft or damage Usually, it means theft, fraud, assault, or intoxication at work. Damage to Property This can include acts of willful or deliberate damage to office property or gross negligence, which may culminate in a substantial damage or loss to property. Increasing the risk of work-related accidents and potentially bringing the company into disrepute. Breaching health & safety rules may be deemed gross misconduct where it places the employee and others at risk of harm or injury by, for example, consistently refusing to follow company safety processes when operating machinery. With respect to gross misconduct refers to behavior that can get a person dismissed straight away from work because it is serious enough and possibly criminal. What constitutes gross misconduct? Gross misconduct is a legal term meaning a wrongful, unlawful or improper conduct that could lead to immediate dismissal from the workplace because it is serious enough to break statutory UK law such as sexual harassment, stealing or serious breach of health and safety regulations causing a risk of injury. Mr Newbound had worked for Thames Water for 34 years. But employers sometimes fall into the trap of thinking that everything with a health and safety element is a risk to health and safety and therefore dismissal-worthy. An employer’s response to misconduct must be fair and reasonable in all of the circumstances. In this situation, the employee can be summarily (instantly) dismissed. Some examples of gross misconduct include: Theft, fraud, and dishonesty. Offensive behaviour. Gross misconduct often is decided on a case-by-case basis, except in cases of criminal or illegal actions, such as embezzlement and violent behavior that overtly threatens the safety and well-being of both the employee and his colleagues. A colleague who does not wear a high-visibility vest in the warehouse or one that does not use the appropriate safety equipment when using machinery, for example, may be liable to allegations of gross misconduct. major breaches of health and safety rules . If misconduct of an employee is so serious that it undermines the mutual trust and confidence between the employee and their employer and merits instant dismissal, this is known as gross misconduct. What could amount to gross misconduct? Gross misconduct letter template. It’s clear to see how this scenario constitutes gross misconduct. He had an excellent disciplinary record. In an event such as that, the actions of the employee may call for a dismissal without notice even at first offence. Gross misconduct can be broken down into five categories: Theft or damage; Fraud; Offensive behaviour; Health and safety breaches; Substance misuse; In this guide we’ll go into further detail about what these categories cover, and how they can negatively affect your business. This could be enough to be classed as gross misconduct. The Fair Work Regulations define serious misconduct as behaviour that causes serious and imminent risk to the reputation or profits of the business or health and safety of another person, or is deliberate behaviour inconsistent with continuing the employment. Gross misconduct is inappropriate behaviour that's so serious you have the right to dismiss the employee for their first offence. Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur. They’re acts that destroy the trust and confidence between you and your employee. It was therefore outside of the ‘range of reasonable responses’ open to the employer, and it constituted an unfair dismissal. Very serious misconduct such as theft, physical violence or significant breaches of health and safety rules can be referred to as Gross Misconduct. For example, some lesser misconduct may lead to a warning, more serious misconduct may lead to a dismissal. Ensure you have a section in your employee handbook relating to Gross Negligence and omissions being potential acts of Gross Misconduct. As already stated, different actions can fall under the heading of gross misconduct, and the list is not exhaustive. Examples of acts of gross misconduct include theft; fraud; deliberate acts of discrimination or harassment; refusal to carry out reasonable instructions, violent or intimidating behaviour, wilful damage to property or breach of health and safety rules. In most cases, an act of gross misconduct is enough to justify grounds for immediate dismissal. The Employment Appeals Tribunal said that where serious injury or death can result, a one-off act of misconduct might count as gross misconduct and warrant dismissal. However, Mr Andrews received only a written warning, on the basis that he was less experienced and had shown more remorse. Behaviour that causes a security/health risk. Your disciplinary rules should give examples of what will be treated as gross misconduct. Gross misconduct is deemed to be conduct so serious so as to justify the summary dismissal of an employee. Gross misconduct, on the other hand, can cause palpable damage to the business. Employees who arrive to work under the influence of drugs and alcohol can pose a serious threat to the health & safety of colleagues and any third parties. Some gross misconduct examples are: Intoxication while at work; Violence at work; Serious health & safety breaches; Bullying; Harassment; Discrimination; Ultimately it is up to you to decide what constitutes misconduct, but you have to be consistent. The test for gross misconduct is “Would it be reasonable to consider this action to be a serious breach of acceptable workplace behaviour.” To avoid the employee claiming that they didn’t think some actions amounted to gross misconduct it is best to list these borderline areas as gross misconduct. It is a premeditated act to harm the company or another person. It will typically include theft, fraud, physical violence and serious breaches of health and safety. The types of behaviour considered to be gross misconduct will vary from organisation to organisation. However, an employee accountable for gross misconduct has, through behaviour so serious as to negate the appropriateness of warnings, destroyed the employment relationship and overturned the contract between the employer and himself. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross … Damage to the business Any of these acts of gross misconduct could cost the business money, damage its reputation as a good employer and honest business, and lead to legal action. Gross misconduct is an action or behaviour that breaks the implied contractual term of trust and confidence between an employee and employer. Gross misconduct is an act that’s so serious it justifies dismissal without notice, even for a first offence. Following an investigation and disciplinary procedure, Mr Newbound was summarily dismissed for gross misconduct. The sub-folder also contains a disciplinary policy and letter templates concerning gross misconduct suspension and dismissal notices. Such actions that betray the trust that is essential for a positive working relationship often constitute gross misconduct dismissal. Effectively an employer needs to prove that the actions or inactions of an employee were in serious violation of acceptable workplace conduct. Professional HR and Health and Safety support and advice for businesses across the UK. Failing to adhere to health and safety requirements could amount to gross misconduct. Other examples include things like serious breaches of health and safety, fighting in the workplace, or being under the influence of alcohol or drugs. Welcome to the Wirehouse portal. Most employers would identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as examples of gross misconduct. Setting the position and next steps out in a legal letter format will help you, your employee, a court or tribunal and anyone else involved understand the process you’re following. However, the most common examples can include: Vandalism of workplace property; Gross negligence; A severe breach of health and safety rules; Violence; Theft, fraud, and dishonesty An action made by an employee may result in a major security risk or a health and safety risk. As ever, context will be key; there will be different levels of tolerance depending on the employer and the role being undertaken by the employee. 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