Gross Misconduct - Does it always entitle the employer to dismiss?
Monday 2nd September 2013
Possibly not. A recent case has just been before the Employment Appeals Tribunal that says that the decision to dismiss even where the employee had been found guilty of gross misconduct is not always a reasonable sanction.
The EAT in this case said that whilst the employer was entitled to find the employee guilty of gross misconduct it does not automatically follow that dismissal will still be a fair sanction and it remitted this back to the tribunal to decide.
A word of warning is that all dismissals for gross misconduct should be scrutinised to determine if that dismissal does fall within the band of reasonable responses. In order for this to be the case it has to be reasonable in all the circumstances and consideration must be given to length of service, previous disciplinary record, background to the offence and mitigating circumstances and whether the employee admitted it and showed remorse.
It is a worthwhile exercise to set out the employers reasoning for any disciplinary sanction and why they dismissed other ones less than dismissal to show a tribunal that other options were considered before dismissal.
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