How gross is “gross misconduct”?

Few phrases in employment law carry quite the same weight as “gross misconduct”. It sounds definitive – the sort of behaviour that makes dismissal not just justified, but inevitable.

The reality is less clear-cut. “Gross misconduct” is, at the end of the day, a matter of opinion. In each case, whatever the “label” applied by an employer, the question for an employment tribunal, considering a claim of unfair dismissal, is whether the employer acted reasonably in dismissing for misconduct.

Take the recent widely reported case of the Waitrose employee dismissed after intervening to stop a shoplifter. A long-serving worker, frustrated by repeated theft, briefly grappled with a suspected offender. There was a clear policy prohibiting such action, which the employer insisted was a vital measure to protect employee health and safety. The result – the employee was dismissed. Having been championed by various sections of the press, as well as political figures, he has now been offered a role by another supermarket.

Reaction has been divided. Some see a loyal but frustrated employee punished for doing the “right thing”, which he immediately owned up to. Others point to the obvious: employers are entitled, indeed obliged, to prioritise staff safety, and policies on physically engaging with shoplifters exist for good reason.

The legal question, however, when a dismissal case comes to an employment tribunal, is not whether dismissal feels “fair” in some abstract moral sense, or in the court of public opinion. It is whether dismissal fell within the “range of reasonable responses” open to a reasonable employer.

The Elasticity of “Gross”

“Gross misconduct” is not a statutory concept. It is a label used to describe conduct sufficiently serious to potentially justify summary dismissal (dismissal without notice, even for a first offence). But what counts as sufficiently serious will always depend on context: the nature of the role, the employer’s policies, the risks involved, and the employee’s conduct in the round. It will be relevant (but, as the authorities have made clear, not conclusive), if the employer has stated in advance that certain conduct will be considered to be gross misconduct.

In the Waitrose scenario, the employer’s position is not difficult to understand. Retail policies prohibiting staff from confronting shoplifters are commonplace, grounded in genuine safety concerns. There is evidence of staff being injured, or worse, in such situations.

Against that backdrop, a clear and deliberate breach of policy could readily be characterised as gross misconduct.

But equally, it is not difficult to see why many observers question whether dismissal was the only reasonable response. Long service, provocation (in the form of repeated theft), remorse, and an apparent lack of malicious intent all pull in the opposite direction.

But, as stated above, a tribunal must assess the “band of reasonable responses” and whether the decision to dismiss was reasonable, not whether some other outcome would have been “more reasonable”.

Does the tribunal always get that right?

“Outside the band”

Another recent case which was reported in the press involved a Nestlé employee dismissed after allegedly vaping in a workplace toilet and triggering a fire alarm resulting in the plant being evacuated.

Here, the employer relied on a combination of health and safety concerns, loss of production, breach of policy and a perceived lack of remorse (there was no apology). The employee was dismissed for gross misconduct.

The employment tribunal decided that the dismissal fell outside the band of reasonable responses, and that the dismissal was unfair. The tribunal noted that the determining factor appeared to be the employee’s failure to admit wrongdoing or apologise -something the tribunal considered was not, in itself, misconduct. The tribunal also noted that the vaping policy did not state that a breach would be considered gross misconduct. The employer had also failed to take account (or enough account) of the employee’s length of service and clean record.

On one level, that conclusion is one the tribunal is entitled to make, and the factors the tribunal has identified are all relevant. Employers cannot elevate every policy breach or lack of remorse into gross misconduct.

But on the one hand, it raises a different question – did the tribunal stray into substituting its own view about what penalty was appropriate for that of the employer?

The “Band of Reasonable Responses”

A tribunal must not ask whether it would have dismissed. It must ask whether dismissal was within the range of responses available to a reasonable employer.

This recognises that reasonable employers may differ in how they respond to misconduct, and that the employer is better placed than the tribunal to judge how serious something is.

In practice, however, the line between evaluating reasonableness and the “substitution mindset” can be a fine one.

In the Nestlé case, the tribunal’s reasoning arguably edges close to that boundary. By dissecting the employer’s stated rationale and re-weighing the factors – downplaying safety concerns and lack of remorse – has the tribunal substituted its own decision on an appropriate outcome?

It is part of the inherent uncertainty in employment tribunal proceedings: when we are talking about what is “reasonable” and the “band of reasonable responses” that is not something that is objectively verifiable; it’s a matter of judgement. The reality is that tribunals can and do reach divergent conclusions on similar facts – that is why there is always “litigation risk”!

So, How Gross is “Gross”?

All in all, it depends on the employer’s policies, the risks inherent in the conduct, the employee’s intent, their disciplinary record, length of service, treatment of other staff who have committed similar offences, and the broader context. And ultimately, it depends on whether a tribunal considers the employer’s response to fall within the permissible band.

For employers, the lesson is familiar but worth repeating: clarity of policy, consistency of application, clear communication and expectations, and careful articulation of the reasons for dismissal remain critical.

For more advice on dismissal procedures contact our expert employment team.

This update contains general information only and does not constitute legal or other professional advice. For further information and advice on this topic, please contact a member of our Employment team.

Douglas Strang, Legal Director: dst@bto.co.uk/ 0141 225 5271