How to Dismiss an Employee for Gross Misconduct in the UK
Gross misconduct allows you to dismiss an employee without notice, but it does not allow you to dismiss without process. This guide covers what counts as gross misconduct, the investigation and hearing you must conduct, common mistakes that turn a justified dismissal into a tribunal claim, and what changes under ERA 2025.
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North West BasedGross misconduct is conduct so serious that it fundamentally destroys the employment relationship, justifying dismissal without notice. But summary dismissal is not instant dismissal. You must still investigate, hold a disciplinary hearing, give the employee a chance to respond, and offer a right of appeal. Skipping any of these steps risks an unfair dismissal claim even where the underlying conduct was genuinely serious. From January 2027, the qualifying period for unfair dismissal drops to six months, making a defensible gross misconduct process more important than ever.
What Counts as Gross Misconduct?
There is no statutory definition of gross misconduct in UK law. The Acas Code of Practice describes it as conduct so serious that it fundamentally undermines the employment relationship, behaviour that makes continued employment impossible or unreasonable.
In practice, gross misconduct is conduct that amounts to a fundamental breach of the employment contract by the employee. Where that threshold is met, the employer is entitled to treat the contract as terminated without notice: summary dismissal.
Common Examples
What Is Not Automatically Gross Misconduct
Not every serious failing crosses the gross misconduct threshold. Persistent lateness, poor performance, minor dishonesty, and isolated insubordination may be serious misconduct warranting formal warnings, but not necessarily dismissal without notice.
The same behaviour may be gross misconduct in one role and ordinary misconduct in another. Context and proportionality matter. The key test is whether the conduct fundamentally destroyed the trust and confidence essential to the employment relationship.
Define It in Your Handbook
Your employee handbook should include examples of what your business treats as gross misconduct. A tribunal will look at whether the employee could reasonably have understood that their behaviour would be treated as a dismissible offence.
If your handbook is silent on the issue, or has not been updated since 2020, you are carrying unnecessary risk. DaisyHR can review and update your documentation.
Summary Dismissal Is Not Instant Dismissal
This is the most important thing to understand about gross misconduct dismissal, and the thing most North West employers get wrong.
Summary dismissal means dismissal without notice or payment in lieu of notice. It does not mean dismissal without process. You cannot tell someone their employment is terminated the moment you discover the alleged misconduct. Even in the most serious cases: an employee caught stealing on CCTV, a worker found intoxicated on a building site, you must still investigate, hold a formal disciplinary hearing, give them a full opportunity to respond, and offer a right of appeal before the dismissal decision is made final.
The conduct determines whether dismissal without notice is appropriate. The process determines whether the dismissal is fair.
The Process You Must Follow
Six steps. No shortcuts. Skip any one of these and you risk turning a justified dismissal into an unfair dismissal claim.
Consider Suspension
Where there is a credible allegation of serious misconduct, consider suspending the employee on full pay while you investigate. Suspension is a precautionary step, not a punishment. It should be presented as neutral and kept as brief as possible. Not every gross misconduct allegation requires suspension, so use judgement. Document the reasons for the decision either way.
Investigate Thoroughly
Before any disciplinary hearing takes place, conduct a thorough investigation. Gather the evidence: witness statements, CCTV footage, IT records, emails, documents. Interview relevant witnesses. The standard of proof is reasonable belief based on reasonable investigation. You do not need certainty. You need a reasonable, evidence-based belief that the conduct occurred and that dismissal is within the range of reasonable responses.
Invite to a Formal Disciplinary Hearing
Write to the employee inviting them to a formal disciplinary hearing. The letter must set out the allegation clearly, provide copies of the evidence you will rely on, confirm that dismissal is a potential outcome, and state the employee’s right to be accompanied by a colleague or trade union representative. Give reasonable notice, typically at least 48 hours.
Conduct the Hearing
Present the evidence. Give the employee a genuine, full opportunity to respond: to challenge the evidence, to provide their version of events, to raise mitigating factors. The decision-maker must approach the hearing with an open mind. A decision made before the hearing has taken place is procedurally unfair regardless of the underlying conduct.
Make and Document the Decision
After the hearing, consider the evidence, the employee’s response, and any mitigating factors. Ask whether dismissal falls within the range of reasonable responses. Document your reasoning at the time. Confirm the decision in writing. The dismissal letter must state the reason, the effective date, any payments due, and the right of appeal.
Offer a Genuine Right of Appeal
The employee must be offered a right of appeal to a more senior person not involved in the original decision. The appeal must be conducted properly. Failure to offer or genuinely conduct an appeal will undermine an otherwise procedurally fair dismissal.
What Are You Required to Pay on Gross Misconduct Dismissal?
Where the dismissal is summary dismissal for genuine gross misconduct, the employer is not required to pay notice or payment in lieu of notice. However, certain other payments remain due regardless of the reason for dismissal:
Accrued but untaken holiday pay, calculated up to the final date of employment
Any wages already earned up to and including the final date of employment
Any statutory entitlements triggered by the dismissal
Notice pay or payment in lieu of notice, where the dismissal is genuinely for gross misconduct amounting to a fundamental breach of contract
Statutory redundancy pay, as gross misconduct is not a redundancy
Important exception: if the gross misconduct allegation is ultimately not upheld at tribunal. If the tribunal finds the conduct did not meet the threshold for summary dismissal, the employer may be liable for both unfair dismissal compensation and the notice pay they withheld. Getting the threshold assessment right before dismissing without notice is therefore critical.
Common Mistakes That Turn a Justified Dismissal Into a Tribunal Claim
Every one of these is avoidable. Every one of them turns up in tribunal decisions regularly.
Dismissing on the spot
Telling an employee they are dismissed the moment an allegation arises, without any investigation or hearing. No matter how serious the conduct, this is procedurally unfair.
Inadequate investigation
The investigation must be thorough, impartial, and documented. A thin or one-sided investigation, such as talking to the complainant only or relying on hearsay, will undermine the dismissal at tribunal.
Deciding before the hearing
Going through the motions of a disciplinary hearing with the decision already reached. Tribunals are experienced at identifying this and it is fatal to the fairness of the dismissal.
Inconsistent treatment
If a colleague who did something similar received a final written warning rather than dismissal, the tribunal will want to know why this employee was treated differently. Consistency in how gross misconduct is applied is essential.
Overstating the conduct
Calling something gross misconduct when it is serious misconduct at most. This leads to wrongful dismissal exposure for the withheld notice as well as unfair dismissal risk.
Not documenting the reasoning
The decision-maker’s reasoning must be documented at the time, not reconstructed after the fact when the tribunal claim arrives.
Forgetting holiday pay
Withholding accrued holiday pay as a punishment for gross misconduct. This is unlawful deduction from wages regardless of the reason for dismissal.
ERA 2025: What Changes for Gross Misconduct Dismissals
Unfair dismissal protection after 6 months. Currently, an employee needs two years’ service to bring an ordinary unfair dismissal claim. From January 2027, that threshold drops to six months. Every gross misconduct dismissal will carry full unfair dismissal risk after just six months in post. Build your investigation and hearing processes now so they are consistently applied from day one.
Compensation cap removed. The current cap on unfair dismissal compensatory awards is removed entirely. A poorly handled gross misconduct dismissal of a senior employee could result in a significantly larger tribunal award than the same dismissal would have attracted before 2027.
Tribunal claim window doubles. The time limit for bringing an unfair dismissal claim will extend from three months to six months. Retain all documentation relating to gross misconduct dismissals for at least six months from the effective date of termination.
Extended harassment duty. The duty to prevent sexual harassment is extended to include harassment by third parties: subcontractors, clients, visitors. If a gross misconduct allegation arises in this context, additional considerations apply.
The habits you build now, fair processes, documented decisions, consistent treatment, are the ones that protect you after 2027. DaisyHR advises North West employers on dismissal risk every day.
Read our full ERA 2025 guide for North West employersFrequently Asked Questions
No. Even where the conduct is entirely clear, caught on CCTV, admitted by the employee, witnessed by multiple people, you must still hold a formal disciplinary hearing and give the employee a genuine opportunity to respond before the dismissal decision is made. The only exception is where it is genuinely impossible to hold a hearing, which is rare. In virtually every case, the answer is no.
No. Where the dismissal is genuinely for gross misconduct amounting to a fundamental breach of contract, the employer is not required to pay notice or payment in lieu of notice. However, accrued holiday pay and earned wages remain payable regardless of the reason for dismissal.
Yes. If the conduct is genuinely serious enough to meet the gross misconduct threshold, dismissal for a first offence can be fair. Unlike ordinary misconduct where a pattern of warnings is expected, genuinely serious conduct can justify immediate dismissal following a fair investigation and hearing. The question is always whether dismissal was within the range of reasonable responses, not whether the employee had been warned before.
The standard of proof in employment is reasonable belief based on reasonable investigation, not proof beyond reasonable doubt. Where you have conducted a thorough investigation and have reasonable grounds to believe the conduct occurred, the dismissal can be fair even where the employee denies it. Document your investigation and your reasoning carefully.
Length of service and a previously unblemished record are factors that can be raised by the employee as mitigation, and you should genuinely consider them. They do not prevent dismissal, but they may be relevant to whether dismissal was the only reasonable response or whether a final written warning might have been appropriate instead.
Where the alleged conduct is also potentially criminal, such as theft, assault, or fraud, you do not need to wait for a criminal investigation or prosecution before conducting your disciplinary process. The disciplinary process and any criminal process run independently. You should take advice before proceeding where a criminal process is in train, but the employer’s investigation can and usually should proceed in parallel.
Yes. Illness does not protect an employee from gross misconduct dismissal if the conduct is unrelated to their illness. You must still follow the full investigation and disciplinary process. If the employee is too unwell to attend a hearing, consider accommodating them, such as written submissions, a different date, or a remote hearing, rather than proceeding in their absence without good reason.
Currently at least three months from the effective date of termination, the tribunal claim window. From October 2026, extend this to at least six months. Retain all investigation notes, hearing records, correspondence, evidence relied upon, and the decision-making rationale. These records are frequently decisive in defending tribunal claims.
Get Dismissal Advice From a North West HR Consultant
Dismissal is the area where North West SMEs face the most tribunal risk, and where getting advice early makes the biggest difference to the outcome. Book a free 30-minute consultation. We will assess the situation, tell you what the risk looks like and advise on the right course of action before you make any final decision.
Dismissal advice for employers across Bolton, Manchester, Wigan, Warrington, Salford, Stockport, Bury, Rochdale, Preston, Lancaster, Cheshire and the wider North West. · Last reviewed: March 2026