Employment – Summary Dismissal

Losing your job in any way is a difficult matter, especially so when you have to leave straight away, without notice.

Summary dismissal is when an employee is dismissed instantly, without notice or payment in lieu of notice. It normally takes places because an employer considers an employee has committed a ‘gross misconduct’ offence.

What is ‘gross misconduct’?

Gross misconduct is a term used to describe behaviour by an employee that is so serious, it undermines the relationship of mutual trust and confidence between an employer and employee and merits instant dismissal. In such cases, the employee can be summarily dismissed without working a notice period or receiving pay in lieu of notice.  

What type of behaviour amounts to gross misconduct?

Whilst there is no comprehensive list, examples of what is gross misconduct should be set out in staff handbooks or in the employment contract, as well as making employees aware of the consequences in the disciplinary policy. It should also be clearly stated that any examples are not an exhaustive list.

How seriously incidents are perceived can differ across companies, but common examples include theft, dishonesty, fraud, violence, bullying or intimidation, serious insubordination, vandalism of company property, being under the influence of alcohol or illegal drugs, gross negligence, indecent or offensive behaviour, and, serious breaches of health and safety rules.

Some instances cover conduct at and outside of work, such as illegal or criminal acts, damaging the company’s reputation (including via social media) and misusing the employer’s confidential information or setting up a rival business.

How do you dismiss an employee for gross misconduct?

Whilst an act or omission can entitle an employer to dismiss an employee instantly, it is prudent for employer’s to check an employee’s contract and investigate any incident, allowing the employee a chance to give their account before deciding to dismiss them. This ensures a fair procedure, reducing the risk of an employment claim for unfair/wrongful dismissal or discrimination, allowing an employee a chance to explain if all is not what it seems.

If an employer considers there to be an immediate risk, an employee can be suspended on full pay to allow for an investigation. Once the investigation has been conducted, gathering the facts, any evidence, witness accounts and the employee’s account, a disciplinary hearing can be arranged.

Before any hearing, the employee should be informed of the allegations and be entitled to bring a companion (work colleague or trade union representative) to the meeting. After the  hearing, any decision to dismiss the employee should be formally confirmed by letter, detailing any prior warnings, the reasons and legal basis for a gross misconduct dismissal, the termination date, the ineligibility for notice or pay in lieu, arrangements for outstanding holiday pay and final salary pay and, the need to return company property. The employee should also be given the right to appeal against a dismissal.

It is always important to obtain legal advice before dismissing an employee for gross misconduct, as it must be a reasonable and proportionate response, properly conducted in the circumstances. 

If you want help understanding your rights as an employer or employee, please contact LF Legal on 0203 146 3549 / [email protected]

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