Our Employment lawyers answer employees questions around “what is gross misconduct?”
You are always entitled to notice unless you have committed a repudiatory breach of contract, or gross misconduct. This situation is unlikely to be accepted by an Employment Tribunal as being gross misconduct. Case law has determined that gross misconduct involves either deliberate wrongdoing or gross negligence. If you can’t reach the required standard a dismissal may be fair – but it’s not gross misconduct.
A lot depends on what you have been saying and who to. If your employer has a social media policy that explicitly states that such behaviour will be regarded as gross misconduct then a Tribunal is much more likely to accept this in your case. Whilst actions such as theft or fighting will generally be regarded as gross misconduct, your employer can set out other conduct (within reason) in their disciplinary procedure that can be considered and treated as seriously.
It would be an exceptional case when instant dismissal would be reasonable. Even cases that look obvious should be investigated to some extent. For instance someone fighting might have been the innocent victim of an assault or someone taking money from the till may have been changing some notes.
An employee under suspicion of theft can expect to be suspended during an investigation. Unless there is a contractual term to the contrary, you should be paid for the period of suspension. Stealing would be accepted as gross misconduct but there should be a proper investigation that produces evidence that points to you.
Your employer should follow the disciplinary procedure and invite you to a disciplinary hearing. You may be told you face a dismissal for gross misconduct. Such behaviour would normally be regarded as gross misconduct where there is no requirement to give notice of dismissal.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021