The following guide for employers examines the issue of gross misconduct, from what this means to the type of conduct that can justify summary dismissal.

The sackable offences list will also help to provide HR personnel and line managers with examples of gross misconduct, but this is not exhaustive and every dismissal must be approached on its own merits as part of a fair disciplinary procedure.

What is summary dismissal?

When someone’s employment is terminated by their employer without any notice period or pay in lieu of notice, this is known as summary dismissal. In contrast to a normal dismissal, an employee will either be allowed to work their notice period or will be compensated for it in their final pay packet.

Following a dismissal, an employee is normally entitled to at least one week’s notice if they have been with the company for at least a month but less than two years. If they have at least two years of service, they are entitled to two weeks’ notice, plus one extra week for each consecutive full year, up to a maximum of twelve weeks. Yet, in many circumstances, the employment contract may provide for a lengthier term of notice.

In circumstances when summary dismissal is appropriate, the employee will not be entitled to work out or be compensated in lieu of their statutory or contractual notice period.

When is summary dismissal allowed?

The reasons cited by employers for summary dismissal typically focus on the employee having committed gross misconduct. This refers to an act that goes to the core of the employment relationship, breaking down the trust and confidence between the parties, preventing the working relationship from continuing.

Where an employee is guilty of gross misconduct, the employer is entitled to treat this is as a fundamental breach of the implied duty of mutual trust and confidence. In this way, the employer can justify terminating the employment contract without meeting any minimum statutory or contractual notice requirements.

However, when summarily dismissing an employee, a fair disciplinary procedure must still be followed for the dismissal to be lawful. This means that an employer cannot usually dismiss an employee ‘on the spot’, but rather must first investigate all the circumstances surrounding any allegation of gross misconduct prior to reaching any decision to dismiss, including any mitigating factors.

Examples of sackable offences

The following are common scenarios amounting to gross misconduct that can be used to justify summary dismissal, although every dismissal must be approached on a case-by-case basis taking into account all the specific facts following investigation:

• Physical violence or threats of violence at work
• Aggressive or intimidating behaviour at work
• Dangerous horseplay in the workplace
• Indecent or abusive behaviour in the workplace
• Discrimination or harassment of another employee
• Serious insubordination in the workplace
• Serious breaches of health and safety requirements
• Intoxication in the workplace through alcohol or drugs
• Possession of drugs or taking drugs on the employer’s premises
• Buying or selling drugs on the employer’s premises
• Theft, fraud or dishonesty at work
• Misuse of company property
• Damage to company property
• Setting up a competing business

This list of sackable offences is by no means exhaustive, where an employer may have a written policy or rules in place, with specific prohibitions against certain types of misconduct based around their sector or the nature of their business. For example, IT-related incidents, such as divulging a password, will often count as gross misconduct in the financial industry. What constitutes gross misconduct can also depend upon the context in which the conduct takes place.

In most cases, summary dismissal will be justified by a single incident of gross misconduct. However, there are instances where the cumulative effect of a series of acts showing a pattern of serious misconduct may also warrant dismissal without notice or pay in lieu. This is even where the employer is unable to point to a single act that amounts to gross misconduct.

How should instant dismissal offences be dealt with?

To avoid a tribunal claim for unfair dismissal, an employer must not only have a genuine and valid reason for the dismissal, they must also show that they have acted reasonably in all the circumstances. This means that an employee must not be dismissed without first conducting a proper investigation and following a fair disciplinary process.

First and foremost, you must have in place a written disciplinary and dismissal procedure. You must also ensure that you follow that procedure, as you would do for any other disciplinary matter, regardless of the seriousness of the allegations or any admission of misconduct.

For any dismissal to be fair and lawful, the following steps must be followed prior to dismissing an employee for a sackable offence:

• Consider if you need to suspend the employee pending the outcome of your investigation and any final decision. You should only suspend an employee where it is absolutely necessary and there are no alternatives, notifying the employee in writing of your decision to suspend and explaining that this is not a disciplinary sanction. You must suspend on full pay, unless their employment contract provides otherwise.
• Conduct a full and fair investigation without delay to establish the facts of the matter. This should involve taking statements from both the employee and any witnesses, and reviewing any other evidence, such as documentation, photos, or video and audio files.
• Invite the employee to a disciplinary hearing where there is a case to answer. The employee must be given written notification of the hearing as soon as possible, with disclosure of any evidence in advance of the hearing to allow them to prepare their case. They must also be informed of their right to be accompanied on reasonable request at that hearing.
• Provide the employee with an opportunity at the hearing to put their case before reaching any final decision. Even where an employee is clearly guilty of conduct that would justify dismissal for a first offence, there may be circumstances that significantly mitigate the gravity of the matter. Depending on the facts, summary dismissal will not always be a reasonable response, where you may need to consider providing a written warning first.
• Notify the employee of your final decision in writing, setting out your reasons and explaining that any decision to dismiss will take immediate effect. You must also explain the employee’s right to appeal, including their right to be accompanied at any appeal hearing. An appeal should be conducted where the employee either feels that the outcome was wrong or unjust, the disciplinary procedure was unfair or they have new evidence to present.

By conducting a proper investigation and following a full disciplinary procedure you can help to ensure that any summary dismissal for a sackable offence is both fair and lawful. You should also retain a written record of the disciplinary process, including the reasons for dismissal, to demonstrate the reasonableness of your decision-making.

What should be included in a summary dismissal letter?

Drafting a summary dismissal letter is not as simple as informing the employee they are being sacked. Given the risk of litigation, it is important to clearly set out the reasons for summarily dismissing the employee. The dismissal letter is essentially your opportunity to demonstrate and document a fair reason for deciding to dismiss on a summary basis, as well as outlining the fair process you have followed in reaching that decision.

When drafting a summary dismissal letter you should include the following:

• The decision to summarily dismiss, with the effective date of termination
• An explanation that the dismissal is without notice or pay in lieu of notice
• The reasons for deciding to dismiss summarily
• The nature of the gross misconduct upon which the decision to dismiss was made
• The way in which the serious misconduct was investigated
• The findings of fact made following the investigation
• The reasons for rejecting any alternative course of disciplinary action
• The right of the employee to appeal this decision, including the appeals procedure

You may also need to deal with any practicalities, such as the return of company property and, where relevant, reminding the employee that they are still bound by any post-termination confidentiality obligations and restrictive covenants under their employment contract.

Review the disciplinary policy

By law, there is no requirement for employers to have in place a specific summary dismissal policy, although all employers must have a written disciplinary and dismissal procedure setting out the basis upon which an employee can be fairly dismissed.

By clearly setting out within your disciplinary procedure, or other relevant policy document, the types of behaviour that might lead to disciplinary action, including what constitutes gross misconduct, you can help to prevent misconduct in the workplace. You can also use this to demonstrate the fairness of your approach to misconduct matters and summary dismissal.

As an absolute minimum, any workplace procedure on disciplinary matters must comply with the ACAS Code of Practice. This sets out the basic requirements of fairness applicable in most cases. It should also be easily accessible to all members of staff in either their contracts of employment, staff handbook or on any staff intranet site.

Managing the risk of disputes & tribunal claims

Employers should proceed with caution when deciding to dismiss an employee without notice or pay in lieu of notice. You may face a claim for unfair or wrongful dismissal if you fire an employee ‘on the spot’, or otherwise in an unfair or unlawful manner.

A claim for unfair dismissal can be made on a variety of grounds, including if the reason you presented for dismissal was not real, was unjust, or you acted unreasonably, such as by failing to follow a fair procedure. A wrongful dismissal claim is predicated on an employee’s right to seek restitution if their employer fails to provide the required statutory or contractual notice time. In either situation, you must be able to demonstrate a fundamental breach of contract that justifies dismissal.
Although there is no comparable qualifying time of service for filing a wrongful dismissal claim, an employee will only be allowed to claim unfair dismissal if they have been continuously employed for at least two years.

Need Assistance?

DavidsonMorris’ employment lawyers are experienced in advising employers on all aspects of workplace disciplinaries and dismissals. We can support you with advice to ensure a fair and lawful procedure is followed and to minimise the risk of tribunal claims, and can support with developing and drafting an effective and compliant disciplinary policy and have specialist experience in conducting fair disciplinary investigations. For guidance on misconduct and disciplinary issues, contact us.

Sackable Offences FAQs

What are sackable offences?

A sackable offence refers to conduct in the workplace that is serious enough to justify dismissal. Acts of gross misconduct, such as theft, fraud or violence, are sackable offences where an employee can be summarily dismissed, ie; without notice or pay in lieu of notice.

What are the 5 fair reasons for dismissal?

There are five potentially fair reasons when dismissing an employee: capability; conduct; redundancy; where continued employment would contravene the law; or for some other substantial reason. In cases of gross misconduct, this may merit the instant dismissal of an employee, although a fair procedure must still be followed first.

What are examples of gross misconduct?

There are various types of gross misconduct in the workplace, although common examples include violence, threats of violence, theft or fraud, misuse of company property, damage to company property, serious breaches of health and safety at work, intoxication or indecent behaviour, and serious insubordination.

Can I be sacked without a written warning?

In the UK, it is possible to be sacked without a written warning where an employee is guilty of gross misconduct. This is conduct so serious so as to justify summary dismissal. However, in most cases, prior to reaching a decision to dismiss, the employer must conduct an investigation and follow a fair disciplinary process, allowing the employee to put their case.

Can I dismiss an employee immediately for gross misconduct?

Summary dismissals for gross misconduct should be approached with care as you still need to follow the correct disciplinary procedure. This includes conducting an investigation and holding a fair hearing to ensure the dismissal is lawful.

Do I need to give notice for a sackable offence?

If the offence is deemed gross misconduct, you are not required to give notice or pay in lieu of notice. However, the employee is still entitled to any unpaid wages or holiday pay up to the date of dismissal.

What are the risks of unfair dismissal claims?

If you dismiss an employee without following proper procedures or without sufficient evidence of gross misconduct, the employee may bring an unfair dismissal claim against you. This could result in legal costs and compensation payouts.

Can an employee appeal against a dismissal for gross misconduct?

Employees have the right to appeal against a dismissal for gross misconduct. You should inform them of their right to appeal and provide details of the appeal process in your dismissal letter.

How should I handle an investigation into gross misconduct?

An investigation should be thorough and impartial. Gather evidence, interview witnesses, and allow the employee to present their side of the story. Ensure all steps are documented and keep the employee informed throughout the process.

What should be included in a dismissal letter?

A dismissal letter should clearly state the reasons for dismissal, the effective date of termination, and any outstanding entitlements like unpaid wages. It should also include details of the employee’s right to appeal and how to do so.

Can I suspend an employee during an investigation?

You can suspend an employee while investigating gross misconduct. Suspension should be on full pay and should be made clear to the employee that it is a neutral act and not a presumption of guilt.

What is the role of ACAS in handling sackable offences?

ACAS provides guidelines on fair dismissal procedures and can offer advice to both employers and employees. Following the ACAS Code of Practice can help you avoid potential disputes and unfair dismissal claims.

Glossary

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals