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Autumn 2003 Newsletter

Gross misconduct?

You have to be very careful before dismissing someone. Usually you have to give warnings and follow the proper procedures. You can only dismiss "summarily" - without a warning - for gross misconduct. The question is then whether the offence is bad enough to make that a reasonable course of action.

In a recent case, an employee admitted making personal phone calls, which were not permitted by the staff rulebook. The company policy was that such calls would be regarded as dishonest use of company resources, and would normally lead to dismissal. The investigation was brief, the disciplinary hearing immediate, and the employee was sacked.

The Employment Appeal Tribunal did not think that this was reasonable. Although private calls were forbidden, it was not made clear to the employee that this was a policy that would be enforced rigidly, or whether a blind eye was usually turned. The total cost of all the calls was less than £40. Although there were 111 calls in total, that was fewer than 3 a week, and the employee had been going through personal difficulties at home. Although dismissal might still have been a reasonable result, the EAT considered that the investigation should at least have taken these factors into account.

The lesson is the usual one: if you want to have rules of behaviour for your employees, you need to make sure that everyone knows what they are. And if you want to discipline someone for breaking the rules, you need to be able to show that what you did was fair.