Our employment lawyers answer employers questions around “what is 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 have followed a fair process of warning your employee that their job is at risk and they have not performed adequately a dismissal may well be fair – but it’s not gross misconduct.
Maybe. A lot depends on what they have been saying and who their contacts are. If you have a social media policy that explicitly states that such behaviour can 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 an 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. 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. It is wiser to make sure you know all the facts before dismissing someone.
Stealing would be accepted as gross misconduct but you should carry out a proper investigation and base any decision on the evidence produced. You are entitled to suspend the employee to safeguard the business, but unless there is a contractual term to the contrary, you will have to pay them for the period of suspension.
It would be advisable to invite him to a disciplinary hearing and inform him he faces a dismissal for gross misconduct. Such behaviour would normally be regarded as gross misconduct where there is no requirement to give notice of dismissal.