05 May 2010 #Employment
In Sandwell and West Birmingham Hospitals NHS Trust v Westwood the EAT has held that even where an employer`s disciplinary policy provides that certain conduct is gross misconduct, dismissal for such conduct is not always fair.
The EAT stated that gross misconduct must comprise either "deliberate wrongdoing" or amount to "gross negligence". This will always fall to be determined on the facts of each case.
It is still useful for employers to have a list of actions that may constitute gross misconduct set out in their disciplinary policies, as if these are brought to an employee`s attention prior to the act being committed, this can act as a substitute warning meaning it is easier to justify dismissal.
However employers should ensure that they always carefully consider whether certain actions should be considered to be gross misconduct or negligence as opposed to just misconduct, and ensure that they use their policies to guide them in their decision making rather than instantly dismissing for a breach of a disciplinary rule.