What is the difference between misconduct and gross misconduct

Many employers struggle to understand the difference between misconduct and gross misconduct. However, it is important that this is dealt with properly by employers. After all, an employer is entitled to dismiss without giving notice to an employee is they are deemed to be guilty of gross misconduct. This will not apply to a case of simple misconduct where dismissal will still apply but notice is required to be given to the employee.

What amounts to misconduct
The law does not define misconduct. However, over time, certain issues have been identified as amounting to misconduct. We have outlined a few examples below:

• theft or dishonesty
• violence or fighting
• unauthorised absence
• disobedience
• misuse of internet/social media
• being under the influence of alcohol/drugs
• harassment of staff/customers
• behaviour which undermines good faith in the employee

What amounts to gross misconduct

Again there is no definition of what amounts to gross misconduct or indeed what the difference is between misconduct and gross misconduct. Generally speaking, the more serious the act of misconduct, the more likely it is that an employer will be entitled to rely upon a finding of gross misconduct. Virtually all of the examples given above can amount to misconduct or gross misconduct and will have to be viewed on a case by case basis. We have however given some examples below as to how the facts of a particular case may influence what decision an employer may reach.

Theft

A minor theft such as taking a colleague's chocolate bar may be seen as misconduct rather than gross misconduct. However, if the employee works with money or in a position involving a high degree of trust then any act of dishonesty may affect how the employer perceives the employee and may lead them to find that the act does amount to gross misconduct.

Violence

An act of violence in the workplace will always rightly be viewed as being serious. However, what if the act of violence takes place outside of the workplace. For example an employee may be cautioned by the police for a minor assault whilst out drinking. If this is the case then other issues will come into consideration such as any adverse publicity and the role in question. For example, a window cleaner may escape dismissal in such a case whereas a carer or social worker who works with vulnerable people may be dealt with very differently.

Misuse of social media

Again this is a question of degree and, to some extent common sense. An employee using facebook or twitter on work's time would not normally face summary dismissal. However, if the same employee was using social media to harass a colleague or make inappropriate remarks about his employer then he may face dismissal.

What does this mean to your business?
Any business must know what amounts to misconduct and what amounts to gross misconduct when dealing with disciplinary issues. Get it wrong and you will face a claim for unfair dismissal with awards averaging between £5-10k. Far better to seek an hour's legal advice so you are aware of your options and how to deal with matters properly and effectively. 

Summary

If dealing with misconduct issues, investigate thoroughly and establish the facts then consider the following points:

• How have others been dealt with for similar matters
• What is the effect upon the business
• What is the effect upon other employees
• Has trust and confidence in the employee been affected
• If the matter took place away from the workplace is this a relevant issue in how the matter is viewed

This blog contains the views of the author and is not intended to be specific legal advice on any particular set of facts. If in doubt then always seek legal advice.

At Chiltern Solicitors we are experts in providing workplace solutions to your staffing issues. Call us on 01582 439795 or email us at info@chilternsolicitors.co.uk. Please take a look at our website at www.chilternsolicitors.co.uk