Dismissal for gross misconduct

It is important that when there is a possibility of dismissal for gross misconduct, those preparing the case know what the framework is for dismissal.

The test is that the employer should have a genuine belief of the employee's guilt based on reasonable grounds in the employer's mind, following reasonable investigation, and that the decision to dismiss is within the range of responses of a reasonable employer. It is not within the power of an employment tribunal to say: "We wouldn't have done that if we had been the employer," unless no reasonable employer would have made that decision.

The burden of proof lies on the employer to demonstrate that the belief was genuine and that the grounds were reasonable. In a recent case (Sheffield Health and Social Care NHS Trust v Crabtree), the Employment Appeal Tribunal (EAT) made it clear that the standard does not demand that 'all available evidence' is considered.

In another case (Sandwell and West Birmingham NHS Trust v Westwood) involving two nurses, the EAT considered what 'gross misconduct' meant. A patient with a delicate psychiatric history had come in to hospital under the influence. She was eventually discharged by a doctor but refused to leave.

A senior nurse decided to push the trolley outdoors and asked another nurse to help. She did and assisted in lowering the side of the trolley to 'encourage' the discharged patient to leave. Both nurses were dismissed for gross misconduct.

The case turned on whether this conduct was capable of being considered gross misconduct. The trust argued that the actions were contrary to trust policy; that they defened a breach of trust policy as gross misconduct; that was that.

The EAT disagreed. Dismissal for gross misconduct was a matter of law and of fact. To qualify as gross misconduct an action must either 'deliberately flout essential contractual conditions' or constitute 'very considerable negligence'.

For school and colleges, it is important to note that just stating something is gross misconduct in a discipline policy does not make it so in law. It must be something that amounts either to a repudiation of contract or gross negligence. Most descriptors of gross misconduct are just that, but it is worth checking.