Sorry may have bought our PM some time but it begs the question; does an apology, caveated (as our PM’s was) or sincere, negate an act of gross misconduct?   

Acts of gross misconduct will justify summary dismissal and what constitutes such actions may vary according to the work the employee is carrying out and the role they hold. 

Certain acts such as theft, fraud, physical violence, serious negligence or serious breaches of health and safety regulations will in most cases be considered gross misconduct. Holding a party, permitting a party, knowing about a party – however you want to split those hairs – would come under the latter held as it was at the height of a pandemic when the health and safety of the party-goers were compromised by their attendance and where it was a clear breach of the rules that applied to everyone. 

Gross misconduct means behaviour that is so serious it breaks the relationship of trust at the heart of an employment relationship. Continuing to employ those who commit acts of gross misconduct creates a significant risk of implicitly encouraging other behaviour outside of the employer’s rules and makes it harder to dismiss other employees for serious conduct in the future? “If he can get away with it so can I.” 

Where an act of gross misconduct has been identified, an employer will still need to consider whether dismissal is within the band of reasonable responses. 

They will weigh up factors such as:

  • The relevant background
  • How other employees have been treated
  • What their policies say
  • Whether the employee has admitted the offence and shown remorse

Any apology from an employee should be analysed. Have they genuinely accepted their wrongdoing or is the apology just convenient? Is it scripted by their advisers or from the heart? 

By way of example, an employee accused of gross misconduct who smirked and appeared to trivialise an allegation at the investigation stage, who then changes their approach when realising they might be dismissed, may find their employer does not believe their apology is genuine. A dismissal in such circumstances would be likely to fall within the band of reasonable responses.

Employer’s up and down the country know the critical importance of setting the standards from the top and taking appropriate action to maintain their own rules. It remains to be seen whether sufficient Conservative MP’s are brave enough to bring in Lord Sugar to jump to his feet yelling the immortal words to our PM ……. You’re fired!