 Hi there, I'm Mike, HR trainer at Coopersons UK. Today we'll be reviewing the basics of dismissing an employee on the grounds of gross misconduct. First question, what do you think counts as misconduct within the workplace? Unexceptible or inappropriate behaviour? It doesn't have to be just things that happen within the workplace. It can also include actions outside of the workplace. Most organisations will have a document setting out what behaviours are not acceptable and amount to misconduct. This may be part of a company handbook, disciplinary policy or code of conduct. Other actions may also count as misconduct. One difficulty can be deciding whether the behaviour is a performance or misconduct issue. It can be helpful thinking about whether this is an issue of can but won't or can't but willing. During the investigation stage you will want to find out how much training the individual has received and whether they understood what was required of them. Gross misconduct is the only form of misconduct which entitles you to dismiss the employee immediately. The law expects that only the very worst employee behaviour will amount to gross misconduct because of the implications for the employee of having to exit without any notice pay. Here are some examples. Again, the types of conduct which may result in immediate dismissal should be outlined in a company policy. The employment tribunals have been very clear in telling businesses that just giving a type of conduct the label of gross misconduct will not mean that it always is. Other types of conduct can amount to gross misconduct but your business will need to explain why this conduct is so serious. Even if the conduct would normally amount to gross misconduct, i.e. fighting, dismissal may not always be fair in those circumstances. In all other cases you will need to go through a process of giving written warnings to the employee setting out that their conduct is inappropriate and if there is a repeat of their previous conduct this may result in dismissal. If dismissed the employee is entitled to be paid notice pay. So my day started like this yesterday when I visited Great Bears. Hi Mike, one of the warehouse operatives may have stolen a bear. Can you tell me what I should do next? The basics of any conduct process is suspension, investigation, a disciplinary hearing and appeal hearing. Remember to follow your organisation's disciplinary procedure. Hold an investigation meeting with the employee and ask to look in his locker. You don't need to give him advance warning of the meeting or allow him to be accompanied. If you feel there is a risk to the business in Roger continuing to remain on site, suspend him immediately. Let's recap the law on suspension. Do you have to pay an employee whilst they are on suspension? The answer is yes unless you have a contract clause to the contrary. Suspension is not an indication of guilt or the outcome of the disciplinary process. There is no set length of time but it should be reasonable and necessary for the investigation to be carried out. Confirm the details in a letter. What about investigation? OK, you are not expected to be sure like Holmes. The more serious the offence, the more investigation you need to undertake. Speed is also of the essence whilst the information is fresh. There is no smoke without fire. Well, this is not always the case. Don't jump to conclusions. Even if an employee admits misconduct, a basic investigation should be undertaken in case all is not as it seems. Review where the alleged conduct took place. Look at whether the employee had the opportunity to carry out the alleged action. Are there any witnesses? Keep clear notes of your meetings with the witnesses. What policies, procedures or processes apply. Has the employee had any relevant training? What are the employee's reasons or explanation? Verify all the information you receive. Some tips on using CCTV footage. Is there any CCTV or footage of the event? If you are using footage, make sure that it wasn't taken in a place where people would expect privacy. When the investigation has been completed, as a minimum, all the evidence should be compiled. An investigation report can also be useful, but care should be taken that it is factual. OK, so the investigation is complete and the next stage is to carry out a hearing. Ideally, different managers should carry out the investigation, disciplinary and appeal stages of the process. All managers must be impartial. It is part of a fair process that the employee understands what allegations are being made against them. That way they can fully put forward their side of the story. You should also inform the employee of the right to be accompanied by either a trade union representative or a work colleague. Don't forget to warn the employee that a possible outcome of the disciplinary meeting is dismissal. What if the employee asks to bring their solicitor with them? Must you allow their request? The answer is no, you don't. Ask the employee if they require any adjustments to be made to the meeting on account of any disability. If points arise which need to be investigated, the disciplinary hearing will need to be adjourned whilst further investigation takes place. At the meeting, have an agenda and a list of questions. What about the decision? How do you ensure that it is fair? The law states that it must be within the band of reasonable responses. Basically, the law acknowledges that some employers will take a harsh view whilst others may take a more lenient stance to the behaviour. Within these two lies what is reasonable in these circumstances. Firstly, does the manager believe that the employee did it? Very embarrassing to have a dismissing manager who gives evidence at a tribunal who when asked whether he believes the employee did it, says no. Think about who is credible and whether they have a motive for giving a false picture of the events. Secondly, decide how serious the conduct is. What effect has the conduct had on profit, customers, reputation and employees? If there is uncertainty as to a rule, it may be that dismissal is not appropriate. You will need to reaffirm the rules within the workplace. Even if there are rules in place, are you sure that they have been properly communicated? If you come to the conclusion that yes, the employee has committed the misconduct and that behaviour is serious, you still need to look at all the mitigation. And, be aware of things you don't expect. If an employee says that their conduct is to do with their health, get advice from occupational health on the position before you continue. Think about whether a final written warning or demotion are more appropriate. Do you need to get the employee's consent to a demotion? The answer is yes, the employee must always consent to a demotion because it is a change to their employment contract. Get a copy of their written consent for the HR file. When you have come to your decision, put it in writing. This is not the time to begin a career as the next JK Rowling, so keep it brief, factual and explain how you came to your decision. Remember to say that you took into account their mitigation and considered the alternatives. You must always tell the employee how they can appeal the outcome. Then you wait to see if an appeal letter arrives. An appeal is an impartial review of the dismissing manager's decision. Ensure that the manager is impartial and preferably more senior within your organisation. The job is not to reinvestigate the whole process, but find out what information the employee has to add or disagrees with. Following an appeal hearing, the appeal manager will confirm or overturn the decision to dismiss. So, there we are. That's all the basics of dismissing someone for gross misconduct. If you have any further questions, contact.