Gross misconduct is misconduct so serious that so far as the contract of employment is concerned it entitles the employer to dismiss without notice. This idea cuts both ways: if the employer is guilty of a fundamental breach of contract, the employee is entitled to walk out without notice. When the employee resigns in these circumstances it is called constructive dismissal.
That is the contractual situation. Protection from unfair dismissal means that even where gross misconduct is proved, the employer still has to consider the gravity of the offence, look at alternatives to dismissal, and give proper weight to any mitigating factors. Employers often overlook this: they have a tendency to assume that once they are satisfied that there has been gross misconduct, dismissal follows inevitably. This is a mistake, and one that claimants can exploit.
Part of the reason for the mistake is that people making harsh decisions tend to prefer to disclaim responsibility for them. It is easier to say ‘I have no alternative but to dismiss you’ than ‘Although I could have give you a formal warning, I have decided to dismiss you.’
This mistake means that there is a particular line of cross examination that often works well. It is worth considering in any case where the employer’s reason for dismissal is gross misconduct; it also provides an example of how witnesses can be invited along an easy path until they are where you want them. (See also ‘Preparing the ground.’)
Suppose the dismissal letter says something like ‘In the circumstances I have no alternative but to dismiss you.’ The cross-examination goes something like this:
Q: Please turn to page 87. This is your letter dismissing Mrs Smith. Does it explain your reasoning accurately?
A: Yes [this is obviously the ‘right’ answer – few managers will want to say that their own letter was misleading]
Q: So there was nothing that you regarded as important to your decision that you omitted to mention here?
A: No. [This seems to follow from the previous answer, and disagreeing is unattractive because it involves volunteering that there were important omissions from the letter.]
Q: And when you said ‘I had no alternative’ you meant it?
A: Yes. [Again – a question of the form ‘you meant what you said didn’t you?’ will almost always elicit the answer yes.]
Q: Once you were satisfied that Mrs Smith was guilty of gross misconduct, you really had no option but to dismiss her?
A: That’s right. [A wily personnel officer who has given evidence on many occasions may start to smell a rat – but it is surprising how many will continue to follow trustingly at this point.]
Q: So there really were no other options that you could have considered?
Q: And the question of her previous record was not relevant?
The last two questions are the crunch. The dismissing officer should have considered alternatives to dismissal, and mitigating factors such as the claimant’s previous record (if good), before deciding to dismiss. A failure to do so points to unfairness. This series of questions has produced some damaging admissions without ever facing the witness with an inconsistency or calling her a liar. If you have done it gently enough, she may not even realise she has given anything away.