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Topic: Disciplinary, capability and dismissal

letter warning actions will be viewed as potential gross misconduct
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Letter warning actions will be viewed as potential gross misconduct


Letter warning actions will be viewed as potential gross misconduct

The penalty for proven gross misconduct is normally summary dismissal. This means that employment can be terminated without notice or pay. Certain actions, such as workplace violence or theft, will always fall into this category; others may not be that clear cut. So to ensure that an employee is in no doubt as to how you will view such conduct, always spell it out. Our letter will help you here.

err on the side of caution

Sometimes, an employee will act in a way that clearly amounts to gross misconduct. Examples of this could be workplace violence or theft, refusing to follow a reasonable management instruction, or wilfully breaching health and safety laws. If, following a disciplinary investigation, this is proven, you can summarily dismiss, i.e. their contract is terminated without any notice or pay. It goes without saying that a robust disciplinary procedure should always provide clear examples of what you deem to be gross misconduct. To protect your position further, it should also state that your list of gross misconduct offences is "only a guide and is by no means exhaustive".

Of course, there may be times when you suspect that an employee could commit an act of gross misconduct, although they haven't done so yet. For example, you may tell them that they have to work on a particular day and this is met with a refusal. At that point, you should notify them that any failure to work as directed will be viewed as potential gross misconduct which could, ultimately, result in their dismissal. If you fail to do this and subsequently dismiss, i.e. because they didn't turn up on the day in question, it's likely that the tribunal would make a finding of unfair dismissal. This is because your employee wouldn't have known: (1) how such actions would be viewed by you; and (2) what the consequences could be, i.e. disciplinary action and possible dismissal.


Spell it out 

So to avoid any misunderstandings, if you suspect that an unacceptable act will occur, always set out your position in writing. Our Letter Warning Actions Will be Viewed as Potential Gross Misconduct can help you here. It explains what you suspect may happen, e.g. a failure to work as directed, and how it will be viewed if it occurs. As always, where dismissal is a possibility, you must warn the employee about this risk. This is also detailed in our letter.

Hopefully, this will head off any problems. If it doesn't, follow your disciplinary procedures in the usual way. You can also highlight the fact that you drew this matter to the employee's attention in advance and at the earliest opportunity; this will strengthen your position when it comes to any dismissal decision.

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