Gross misconduct is behaviour so serious, or with such serious effects, that an employer can dismiss the employee without notice or pay in lieu of notice. Acas gives fraud, physical violence, gross negligence and serious insubordination as examples, but it's clear that the employer must still investigate and follow a fair disciplinary procedure first.
'Gross misconduct' is the phrase that makes people think the normal rules don't apply. They do. The difference is in the outcome, not the process: a fair investigation and hearing are still expected, and certain pay is still owed. Here's what Acas and GOV.UK say for UK employers and employees.
Misconduct vs gross misconduct
| Misconduct | Gross misconduct | |
|---|---|---|
| Definition | Inappropriate behaviour that breaks the organisation's rules | Acts that are very serious or have very serious effects |
| Acas examples | Bullying, harassment, refusing to do work, being absent without permission | Fraud, physical violence, gross negligence, serious insubordination |
| Usual outcome | Informal talk, first written warning, then final written warning | Possible dismissal without notice |
| Is a fair procedure needed? | Yes | Yes |
Acas adds that what counts as gross misconduct can depend on the organisation, and your own policy or rules may list examples. That's why a written disciplinary policy with a clear gross misconduct list is worth having: it tells staff where the line is before anyone crosses it.
The procedure still applies
GOV.UK says you can be dismissed for gross misconduct without the employer going through the normal disciplinary procedures, giving violence towards a colleague, customer or property as an example. But it also says your employer should always investigate the circumstances first. Acas goes further: if an employer finds gross misconduct, they must still carry out an investigation and a fair disciplinary procedure, and only then decide on dismissal without notice or pay in lieu.
The reason is practical. Acas says that although its Code of Practice isn't the law, a tribunal will consider whether the employer followed it in a fair way, and the employer must follow its own procedure in the same way for each case. Skipping steps because the facts look obvious is how a sound dismissal becomes an unfair one.
A fair process, step by step
- Investigate the allegation, including speaking to witnesses and gathering evidence.
- If there's a case to answer, invite the employee to a disciplinary hearing in writing.
- Tell them they can bring a companion, either a colleague or a certified trade union representative.
- Let them see the evidence and bring their own, such as emails.
- Hold the hearing, and rearrange it if they're absent or off sick.
- Decide the outcome, with a manager who has the authority to dismiss.
- Confirm the decision in writing as soon as possible.
- Offer the right of appeal.
What's still paid after a gross misconduct dismissal
Acas says an employee dismissed for gross misconduct leaves immediately, has no notice period and doesn't get notice pay. But the employer must still pay for any work done and not yet paid, any accrued holiday built up but not taken, and any expenses owed. Other work benefits may also need paying unless the contract says otherwise. It's easy to forget in the middle of a summary dismissal, so build it into your checklist.
Alternatives to dismissal
Gross misconduct makes dismissal possible, not compulsory. Acas notes that in serious cases an employer can go straight to a final written warning, and it can consider other action, such as demotion, if the contract allows it and it's discussed with the employee (who can be accompanied at that meeting). Consistency matters: Acas says the outcome should reflect what your organisation has done in similar cases before.
Writing gross misconduct into your policy
Because Acas says what counts as gross misconduct can depend on the organisation, your written rules do a lot of work here. A good policy lists the kinds of behaviour you treat as gross misconduct, says that the list isn't exhaustive, explains that an investigation and hearing will still happen, and sets out who can make a dismissal decision. It should follow the Acas Code of Practice, which Acas describes as the minimum an employer should follow.
One thing to watch: Acas says it will be updating the Code to promote early resolution of workplace concerns, and it has consulted on a draft. When the new version is published, check your disciplinary policy against it, because a tribunal will look at whether you followed the Code in force at the time.
Misconduct outside work
An employee can face disciplinary action for conduct outside work. Acas's example is behaviour in front of external clients at the work Christmas party that reflects badly on the company. It depends on how serious the behaviour is and whether it could affect the business, and the employer still needs a thorough investigation that shows that effect.
If you don't have in-house HR, UK HR support services can run or check a disciplinary process, and a clear employment contract should point to your disciplinary rules.
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My verdict
Gross misconduct is a reason to move quickly, not a reason to skip the process. Investigate, hold a hearing with the right to a companion, decide in writing and offer an appeal. And pay what's still owed, including holiday. Do that, and a dismissal for something like fraud or violence will usually stand up.
Frequently asked questions
What counts as gross misconduct?
Acts that are very serious or have very serious effects. Acas gives fraud, physical violence, gross negligence and serious insubordination as examples.
Can someone be sacked on the spot for gross misconduct?
The employer can dismiss without notice, but Acas says it must still carry out an investigation and a fair disciplinary procedure first.
Do you get paid if dismissed for gross misconduct?
You don't get notice pay, but you must still be paid for work done, accrued holiday and any expenses owed.
Is gross misconduct always a dismissal?
No. An employer can choose a final written warning or other action such as demotion if the contract allows it.
Can I bring someone to a gross misconduct hearing?
Yes. By law you can bring a companion, either a colleague or a certified trade union representative.
Does the Acas Code apply to gross misconduct cases?
Yes. Acas describes the Code as the minimum an employer should follow, and a tribunal will consider whether it was followed, including in gross misconduct cases.
Can I appeal a gross misconduct dismissal?
Yes. Acas says the employer should offer the right of appeal after a disciplinary outcome.
