Whether or not behaviour constitutes gross misconduct is a  difficult question.  However, the answer is important as it  will determine the action an employer can take. If the employer can show that, by his or  her actions, an  employee has “disregarded the essential conditions of the  contract of service”, or, to put it another way, has  completely undermined the employment relationship by a  “deliberate flouting” of its most basic terms (Laws v London  Chronicle (Indicator Newspapers Ltd) [1959] 2 ALL ER 285),  the employer will be contractually entitled to bring the  contract to an immediate end without notice or pay in lieu  of notice.

However, just because a dismissal is lawful under the terms  of the contract, it  does not mean it will be “fair” under  statute.  A dismissal for misconduct (including gross  misconduct) will only be fair if, at the time it took the  decision to dismiss, the employer believed the employee to  be guilty of the misconduct, had reasonable grounds for  that belief and had carried out as much investigation as  practicable (British Home Stores v Burchell [1978] IRLR 379).  

An employer should also be able to show that employees  were aware of what type of behaviour might constitute  gross misconduct.    Examples of behaviour meriting  dismissal will normally be set out in the disciplinary rules,  although an offence that does not fall within the rules can  still merit summary dismissal (The Distillers Company  (Bottling Services) Limited v Gardner [1982] IRLR 47). 

Even when the disciplinary rules list the behaviour in  question as meriting summary dismissal, this won’t be  determinative of the issue.  A Tribunal can go beyond the  disciplinary rules to look at the conduct complained of and  make its own decision.  So, for example, in  Sandwell &  West Birmingham Hospital v Westwood UKEAT/0032/09 the employee’s breach of her employer’s policy (to call a  doctor or senior nurse if a recalcitrant patient refuses to  leave hospital premises after discharge) did not  necessarily amount to gross misconduct simply because  the employer’s disciplinary code stated that it would.

If the conduct  can reasonably be categorised as gross  misconduct, an employer cannot simply assume that  dismissal will be justified.  Before taking any decision to  dismiss, the employer should look to see whether there  are any mitigating factors which might make the decision  unreasonable.  Such factors may include length of  exemplary service and the consequences of the dismissal  for the employee (Brito-Babapulle v Ealing Hospital NHS  Trust UKEAT/0358/12).

So, to be topical, an employer who watched England v  Costa Rica on his widescreen TV and saw a “sick”  employee amongst the spectators should not immediately  assume that he can dismiss fairly just because the  disciplinary rules say he can.  Mitigating factors could be  that the employee has 40 years’ unblemished service and  he is Joe Hart’s dad.