Gross Misconduct Dismissal
Holidays and Sickness Absence
In Graham v Jobcentre Plus, Mrs Graham was a Supervisor at Jobcentre Plus and assisted an acquaintance in finding work. She had 30 years’ unblemished service. She allowed that acquaintance to use her computer unattended (described as serious rather than gross misconduct in the disciplinary procedure) and permitted him access to staff areas and was summarily dismissed as a result. During the disciplinary process, she was not suspended and was instead allowed to continue to work in her supervisory role at another branch. The Court of Appeal commented that this did not sit well with an allegation of gross misconduct. The Tribunal found her dismissal to be unfair on the basis that no reasonable employer in the same circumstances would have dismissed and the Court of Appeal agreed.
This recent case has given a timely reminder of the test that Tribunal will apply in assessing the fairness of a gross misconduct dismissal. Firstly, did the employer carry out a reasonable investigation into the misconduct? Secondly, did the employer genuinely believe that the employee committed that misconduct? Thirdly, did the employer have a reasonable basis for that genuine belief. If the answer to any of these questions is no, the dismissal will be unfair. If all questions can be answered in the affirmative, the Tribunal will go onto consider whether dismissal fell within the band of reasonable responses which a hypothetical, objective employer may have chosen to adopt. If the decision to dismiss falls within this band, the reason for dismissal will be fair. In determining whether the dismissal on the whole was fair, all the circumstances will be considered including, in particular, whether any procedure was followed.