Everyone – employee and employer alike – knows what misconduct is. It’s stuff your employer doesn’t want you to do. But gross misconduct is an important, altogether trickier, concept. How do you know when misconduct is so serious, it justifies immediate dismissal without notice? What if your policies don’t describe what amounts to gross misconduct? What if they do but they describe even potentially minor misdemeanours as “gross misconduct”? What if you think something is gross misconduct but 4,500 people on Facebook beg to differ?

There is also the added complication that there are two potential challenges to a dismissal:

  • a statutory claim, that the dismissal was an “unfair dismissal”, judged by the Employment Tribunal according to current industrial standards
  • a contractual claim, that a dismissal without notice was in breach of the individual’s employment contract.

The statutory test

Unhelpfully, the statutory definition of a “fair dismissal” is somewhat circular – it depends on “whether in the circumstances… the employer acted reasonably or unreasonably”. This gives the Tribunal a wide discretion. It must be right that the question of what is fair will vary depending on the unique facts of the case, but this does make it very hard for employers and their advisers to make a definitive judgment call on whether a dismissal is justified or not.

Tribunals will take into account what the employer has described in the company handbook or employment contract as amounting to gross misconduct. For example, the dismissal of an employee of Apple for posting what can politely be described as unflattering comments on Facebook was found to be fair because Apple had made clear in its policies and training materials that protecting its image was a “core value” and that making derogatory comments in social media was likely to constitute gross misconduct.

However, describing conduct as gross misconduct does not mean that summary dismissal will be automatically justified. Tribunals must first ask whether the misconduct amounts to deliberate wrongdoing or gross negligence, and then consider the character of the conduct and whether it was reasonable for the employer (taking into account its size and resources, and policies and contracts) to regard that conduct as gross misconduct.

The contractual test

Whilst an employment contract might expressly set out circumstances in which the employer can terminate without notice, this doesn’t give the employer an unlimited power to terminate for trivial misconduct. For example, an employee worked as a gardener on an MOD site and inadvertently took at bag of bolts worth £2 off site. His contract stated that he could be summarily dismissed for removing property from a client’s site, and he was therefore dismissed. The Employment Appeals Tribunal found that the misconduct did not amount to a repudiatory breach of contract under common law principles because his conduct was not deliberate. He was therefore entitled to be dismissed with notice.

Social media in the workplace

Social media has been something that employers have had to contend with for a number of years: Do we want a social media presence? Is employees’ activity on Facebook relevant to their work? Should we allow employees to talk about where they work on social networking sites? How do we control our confidential information on social media?  However, two recent news stories have highlighted the impact of social media in the workplace: Premier League footballer Nicolas Anelka ‘resigning’ from West Bromwich Albion on Twitter following investigations into his ‘quenelle’ gesture; and the sacked Wolverhampton teacher reinstated after a Facebook campaign.

Anelka had been suspended by the club due to making a ‘quenelle’ gesture after scoring against West Ham. He subsequently received a 5 game ban and was fined £80,000 by the Football Association. Seemingly unhappy at the club’s treatment of him, the striker announced that he was quitting with immediate effect on Twitter. The club added this to its list of alleged offences and subsequently dismissed him for gross misconduct, expressly referencing his use of social media in this situation as one of the reasons for his dismissal.

In recent years we have also seen Tribunals hold dismissals to be fair in cases involving a Wetherspoons manager who got into arguments with customers on Facebook and a Dixons employee who posted abusive comments about colleagues on Facebook. Other dismissals, such as the Argos employee sacked for mild criticism of the company on Facebook, have been found to be unfair.

Richard West, on the other hand, was ‘saved’ by social media. Having been dismissed after a pellet gun accidentally fired in his classroom, causing a pellet to hit a pupil, he was reinstated on appeal after over 4,500 people, including current and former pupils, signed a petition “Bring Back Westy – The Legend” on Facebook demanding the decision be overturned.

What should employers do?

The broad advice about gross misconduct – and social media – is to adopt a common sense approach. Whilst there are, of course, often common themes in cases of suspected gross misconduct, there is no ‘one size fits all’ answer and certainly not in cases involving social media.

Employers ultimately must never forget the core principles when considering dismissing for gross misconduct: is the conduct so serious that it goes to the root of the contract; and was the conduct a deliberate and wilful breach of the contract or did it amount to gross negligence? In considering these elements prior to a dismissal, the employer must take into account all relevant circumstances, such as the nature of the offence, the industry in which they work, the seniority of the employee and the impact on the company. Critically, and as some employers have found to their cost, cases of suspected gross misconduct involving social media should be treated no differently.

Susan Thomas and Will Nash, Senior Associates in Charles Russell’s Employment and Pensions Service

Susan is a Legal Director in the Employment team at Charles Russell Speechlys, and has more than 10 years’ experience advising mainly corporates and not-for-profit organisations on all aspects of employment law. Susan was described as “excellent” in Legal 500 2015. Susan has significant litigation experience in the Employment Tribunal, County Court and High Court including complex discrimination claims, team moves and injunctions, and partnership disputes. She also advises employers on all HR matters including disciplinary/grievance issues, TUPE, restructuring, and discrimination. She has a particular interest in equality and diversity and advisers regulators and other organisations on access and compliance.