In light of the Jeremy Clarkson sacking, employment lawyer Philip Landau examines when you can be dismissed for gross misconduct and what are your rights?
Whether you are a fan of Top Gear or not, you can’t have failed to notice the high profile sacking of Jeremy Clarkson yesterday by the BBC. This followed a physical altercation against the programme’s producer accompanied by sustained and prolonged verbal abuse of an extreme nature. In Clarkson’s case, his contract with the BBC was not renewed. In most cases, similar actions will amount to gross misconduct for which you could be summarily dismissed without notice. But what is “gross misconduct” and what process does an employer have to follow?
Gross misconduct is behaviour by an employee, which is so serious that it goes to the root of the contract and destroys the relationship between an employer and employee. The conduct must be deliberate or amount to gross negligence, and entitles an employer to dismiss the employee with immediate effect, without any notice.
Examples of gross misconduct include dishonesty, theft, fighting or assault on another person, serious cases of insubordination, serious incapability through the use of alcohol or drugs, malicious damage and gross negligence. Most employers will set out in the contract of employment or company handbook what they consider to be gross misconduct.
Where there has been misconduct, an employer should still follow a correct process. The Acas code of practice recommends that an employer should properly investigate all allegations and give you an opportunity to respond. Very often, an employer will suspend you on full pay pending such investigation. You are then entitled to be accompanied at a subsequent disciplinary meeting by a work colleague or trade union representative.
In reaching its decision, an employer will still have to show that a dismissal is within a band of reasonable responses to the misconduct in question, and have regard to any mitigating circumstances of the case (including provocation, stress, a previous clean record). In other words, just because it can amount to gross misconduct, this doesn't mean that dismissal is always an appropriate sanction.
There does not need to be absolute proof. An employer can still take disciplinary action for gross misconduct if:-
• there was genuine belief in your guilt of the misconduct in question;
• this belief was reasonable;
• the matter was properly investigated.
An employer does, however, does need to be consistent in their approach to disciplinary action. And here lies the difficulty that the BBC were grappling with in the Clarkson case.
If they condoned Clarkson for the verbal and physical altercation he had with his producer, it would have been very difficult for them to reach a different decision in future similar misconduct cases involving other employees. This, coupled with the fact that employers must provide a safe working environment for their staff- regardless of whether a dinner is expected to be served hot or cold-meant the decision to dismiss in the Clarkson case was almost a foregone conclusion.