The question of whether a particular conduct by an employee amounts to gross misconduct is one which tends to trick many employers. The reality is that like almost everything else in life, the issue of whether or not a particular action amounts to gross misconduct which would justify summary dismissal is a matter of point of view. Some employers are stricter than others, which mean that they will expect a very high standard of compliance from their employees. But what standard should employers apply?
After all, what might be regarded by the employer as an act of gross misconduct might not be viewed by the employee in the same light. Here are two of many examples which you can find on how easy it is to misjudge the situation.
In the case of Dunn and anor v AAH Ltd  EWCA Civ 183, the finance director and the managing director of a company were dismissed for failing to follow company procedures to report significant risk issues to the parent company, including fraud, of which they became aware. In the view of the company these failures were so serious as they had the potential of resulting in the whole company facing some serious consequences as a result of the breaches by the directors. The company therefore dismissed both directors without notice because it felt that these directors were no longer to be trusted with the important tasks of identifying and reporting matters which could put the company at risk. Surely the employers were right in dismissing the directors without notice for gross misconduct. The directors appealed to the Court of Appeal, claiming that their conduct amounted to mere errors and not to omissions which would justify a summary dismissal. The Court of Appeal rejected their appeal and held that these failures were not mere errors of judgment but seriously undermined trust and confidence between employer and employee entitling the employer to treat the breaches as matters of gross misconduct and dismiss them without notice.
On the other hand, in an earlier case, Sandwell and West Birmingham Hospitals NHS Trust v Westwood  UKEAT 0032_09_1712, The Employment Appeal Tribunal, found against an employer, who summarily dismissed a nurse for leaving a patient on a trolley outside Accident and Emergency at night. In this case the Employment Appeal Tribunal decided that the action by the nurse did not amount to gross misconduct, although it was a serious professional failing. For such conduct or omission to amount to gross misconduct the act must be either:
- deliberate wrongdoing; or
- very considerable negligence.
On the facts, the employee's conduct in this case did not satisfy this test and therefore did not amount to gross misconduct which would justify summary dismissal.
So how can you tell whether an employee’s conduct or omission amounts to gross misconduct? The answer is that on many occasions you cannot tell for certain but if I was you, I would spend a little bit of money to find out and speak to a specialist employment lawyer before making a final decision about the dismissal so that you minimise the risk of getting it wrong. You don’t have to spend a lot of money in order to find out whether dismissing an employee would land you in hot water. Find a trusted employment lawyer who will advise you on the specific issue at hand and if you worried about the costs or the quality, Bains Cohen Solicitors will consult with you over the telephone for just £93 and will guarantee you the quality of the advice or you can have your money back no questions asked. Compare this with the costs of getting it wrong and if you are facing such situation, call them on their free phone as soon as possible.