It is the employer’s responsibility to show that the employee’s conduct was the reason for dismissal. To satisfy this requirement, the employer must demonstrate a genuine belief that the employee committed the misconduct — this belief does not need to be factually correct, only that it was reasonably held based on the evidence available at the time.
Misconduct
Dismissal
Does your employment contract protect you from outgoing employees interfering with your clients or suppliers or misusing your confidential material?
Employer’s Burden of Proof
Fairness Test
Was It Reasonable to Dismiss?
The fairness of a dismissal for misconduct is assessed under Section 98(4) of the Employment Rights Act 1996
Which sets out the statutory test used by Employment Tribunals.
To determine fairness, a tribunal typically considers two key questions:
- Did the employer carry out a fair investigation before reaching the decision to dismiss?
- Was it reasonable for the employer to treat the misconduct as sufficient grounds for dismissal?
Tribunals will consider factors such as the employer’s size, resources, and internal processes when assessing the overall reasonableness of the decision.
Gross Misconduct
Gross misconduct refers to the most serious types of employee behaviour that fundamentally breach trust and warrant summary dismissal — meaning termination without notice or prior warnings. Common examples include:
- Theft or fraud
- Physical violence or serious threats
- Gross insubordination
- Serious breaches of health and safety
- Acts of dishonesty or harassment
Employers must still follow a fair disciplinary process, even in cases of gross misconduct, to reduce the risk of an unfair dismissal claim.
TESTIMONIAL
Review & Rating
Best Practice for Employers
To ensure compliance and fairness, employers should:
Maintain a clear disciplinary policy outlining examples of misconduct and procedures for dealing with it.
Ensure investigations are objective, thorough, and documented.
Offer the employee a right to respond and be accompanied at disciplinary hearings.
Issue warnings where appropriate, unless the conduct justifies immediate dismissal.