Can incompetence be gross misconduct

By having somebody to take notes, you will be adding to your records of the process. At the hearing, you must give access to the evidence you are relying on in the interest of being transparent.

Adjourn the hearing before you decide on the outcome. It is important that you think about the mitigating factors. For example, if the employee is a long-serving member of staff whose record has been clean up to this point. You should set out:. The penalty for gross misconduct is often a final written warning , demotion, or dismissal.

If you conclude that you must dismiss them, you should make sure that you meet these criteria:. If the employee makes a claim against you following an upheld appeal, an employment tribunal will investigate the conduct of your company to determine whether your decision was reasonable and fair based on your findings. With the abolition of tribunal fees, it is now easier than it has been in years for people to take their employer to a tribunal if they think they have a claim.

There are many factors that a tribunal would consider when deciding whether the penalty of dismissal was fair. These include:. The tribunal will look at whether you missed any steps in your process that you should have taken. Keep records of everything to be prepared for a tribunal if one occurs. Evidence includes:. People who saw what happened, the investigator, the person who chaired the disciplinary hearing, and the person who chaired the appeal hearing, should be your witnesses in the event of a tribunal.

Acas has a Code of Practice that offers guidance for you and your staff. The code sets out the basic requirements of fairness and gives a minimum standard of reasonable behaviour. The code also applies to issues of grievance.

Gross misconduct: This is behaviour in the workplace that is illegal or is such a clear and serious violation of company rules that the employee may be dismissed immediately and without notice. Gross incompetence: This is behaviour in the workplace that is not deliberate or wilful i. Dismissal is usually with notice. Gross negligence: This is a legal concept which means serious carelessness. This terminology often causes confusion when deciding whether the negligence is an act of misconduct or poor performance.

The procedure for gross misconduct where dismissal can be made without notice pay or the procedure for gross incompetence where dismissal usually has to be made with notice pay? In reality, Gross Negligence should usually be viewed as a performance issue if the behaviour was not intentional. If the behaviour was intentional though, then it should be viewed as misconduct.

For a finding of Negligence, the employee needs to have caused a financial loss to the company as a result of their negligence. Negligence with no attributable financial loss should not result in a finding of negligence.

The principal difference for employers is in the time it takes to move from the first act of misconduct or poor performance through to dismissal. When following the misconduct procedure ACAS permits employers to start at any appropriate step of the procedure, depending on what the employee has done. Thinking of Dismissing Someone? But what do you do with an employee who consistently fails to do their job well enough?

You must be sure that the employee is incompetent. To avoid an unfair dismissal, you must gather evidence such as:- Statements from people who are in daily contact with the employee; A comparison of their daily output figures compared with those of other employees; Any complaints received from customers. You must give the employee the opportunity to improve. You should follow this up with a written warning which should include the following points:- Details of the faults complained of; A warning that you consider the problem to be serious enough to justify dismissal; A minimum time period during which the employee has the chance to improve before you review the performance this should be at least 4 weeks ; An invitation to discuss the matter further.

And finally If you need legal advice on disciplining your staff or any other employment matter, please feel free to call me or complete the form below. For example, some lesser misconduct may lead to a warning, more serious misconduct may lead to a dismissal. When deciding how to respond to misconduct, an employer must ensure they conduct a fair investigation and disciplinary process. If an employer conducts a fair investigation and disciplinary process and then decides that serious misconduct has taken place, they may choose to dismiss the employee.

An instance of misconduct would not justify a dismissal unless it is repeated. The key question to ask is if the misconduct undermines or destroys the trust and confidence an employer has placed in the employee.

Serious misconduct usually involves the employee acting deliberately however there may be circumstances in which an employee acts so carelessly that it amounts to serious misconduct. The table below shows examples of behaviour that may be considered either serious misconduct or misconduct. This must be explored during a fair investigation and disciplinary process for both misconduct and serious misconduct. Some employment agreements or workplace policies list examples of serious misconduct.