Gross Misconduct or not?

What is Gross Misconduct? 

In the case of Northbay Pelagic Limited v Anderson, the EAT have held that it was not within the band of reasonable responses for an employer to dismiss an employee for gross misconduct, for installing a camera in his office whilst he was suspended from work. 

The employee, who was also a Director, was suspended from his normal working duties, and had installed a camera system in his office, to which only he had access to, as he believed that someone was entering his office and accessing his computer. 

The EAT held that the employment tribunal was right in their approach and agreed that the employers’ decision to dismiss the employee was not a reasonable response.

This was because they failed to consider and weigh up the right to privacy and the employee’s right to protect his confidential information where there was a negligible risk that those who were entering the room would be captured on camera. 

That then begs the question as to what can amount to Gross Misconduct? 

Gross Misconduct occurs when an employee does something which is so serious that justifies you dismissing them without notice or pay in lieu of their notice.

Normally an act of gross misconduct makes the working relationship difficult or impossible to continue. It is something which undermines the relationship of trust and confidence so much so that you are no longer able to keep them in employment.

It is up to you as an employer to define in your business, what would amount to gross misconduct and this can vary from business to business.

Some common examples are set out below: 

  1. dishonesty or theft; 
  2. a serious breach of the health and safety rules; 
  3. deliberate or wilful damage to company property; and 
  4. offensive or violent behaviour. 

In order to justify a dismissal for gross misconduct, you need to demonstrate that your decision was reasonable in the circumstances. 

Context is everything and it is crucial that you investigate the seriousness of the offence in the particular case.

Each set of circumstances therefore needs careful consideration and you need to weigh up the potential risks and consequences associated with your decision. It is for those reasons, that it is crucial that you seek legal advice before taking action.

If you need support on dealing with these types of issues within your business, please call Guardian on 0115 870 0150 or email us at support@guardianlaw.co.uk.  

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