Dismissing an employee for gross misconduct

When dealing with employee misconduct, employers may have a good reason to dismiss an employee, but if they don’t follow the correct procedure their worst nightmare may come true – they may be forced to defend Employment Tribunal claims.

Now that employees do not have to pay a fee to access an Employment Tribunal, they may feel that they have nothing to lose and lots to gain. With this in mind, the British Sandwich Association Advisory Service looks into the gross misconduct and answers commonly asked questions.

What is gross misconduct?
Gross misconduct is an act which is so serious that it justifies dismissal without notice, or pay in lieu of notice, for a first offence.
What could amount to gross misconduct?

Examples of acts of gross misconduct include theft, fraud, refusal to carry out reasonable instructions, violent or intimidating behaviour, wilful damage to property or breach of health and safety rules.

In your Employee Handbook, you should set out examples of acts which will be considered gross misconduct and include any conduct specific to the food sector. The British Sandwich Association Advisory Service can help you with this.

Does this mean you can just dismiss an employee on the spot?
Even in cases of gross misconduct, you still need to follow a fair procedure. If you do dismiss the employee instantly, it is likely that you will face a claim of unfair dismissal.

What constitutes a fair procedure?
When dealing with gross misconduct, you need to follow your disciplinary procedure. This should be included in your Employee Handbook.

A fair disciplinary procedure involves investigating the matter, informing the employee of the issue, holding a disciplinary hearing, allowing them to be accompanied, letting them respond to the allegations and giving them the chance to appeal.

In cases of suspected gross misconduct, it may be necessary to suspend the employee from work on full pay while the investigation is taking place, for example, in order to carry out an unhindered investigation. If you do suspend the employee, it should be made clear to the employee that this is not a disciplinary sanction and the suspension should be as short as possible and be kept under review.

The decision to suspend should never be taken without proper consideration. If you do suspend when it is not reasonable to do so or for longer than necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal.

What is constructive dismissal?
If an employee is forced to resign because an employer has done something that seriously breaches their Contract of Employment, this will be considered constructive dismissal.

In these cases, the employee’s resignation is actually considered a dismissal and they are entitled to resign without providing notice.

In order to make a claim for constructive dismissal, an employee needs to show the following:

  • There must be a fundamental breach of contract by the employer
  • The resignation must be as a result of a breach that has already occurred (an actual breach) or a breach the employer intends to do at a later date (an anticipatory breach)
  • The employee should leave their job in response to the breach. If they stay too long after the breach, it may be considered they have accepted the conduct and ‘affirmed’ the contract.

When can an employee submit a claim for unfair dismissal?
Generally, employees with at least two years of continuous service can submit a claim to an Employment Tribunal for unfair dismissal.

It will be considered an unfair dismissal if the reason for dismissal does not come into the scope of one of the five potentially fair reasons for dismissal (e.g. misconduct) or the employer did not follow a fair disciplinary or dismissal process.

In cases of misconduct, you should follow the procedures set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. If it is found by an Employment Tribunal that an employer has unreasonably failed to follow the relevant procedure in the Code, a tribunal may consider that the dismissal is unfair.

In cases of automatic unfair dismissal, this two year qualifying period is not required. This is the case if you dismiss an employee and it is not because of the gross misconduct, but the main reason is that they are pregnant, exercising any of their statutory rights or have blown the whistle.

Seek legal advice by contacting the British Sandwich Association Advisory Service on 0845 226 8393 or This email address is being protected from spambots. You need JavaScript enabled to view it. and quote “British Sandwich Association” and your membership number.

The information contained in this publication sets out both the legal requirements that food businesses are expected to comply with as well as good practice. However, it is industry guidance and does not necessarily cover everything that food businesses need to consider