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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47887
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Could you tell me if gross misconduct needs to be

Customer Question

Hi could you tell me if gross misconduct needs to be intentional to be dismissed, i.e. Can you still be dismissed where an employer accepts the misconduct was not deliberate?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Please can you tell me a bit more about the circumstances that may lead to gross misconduct in this situation? Please also tell me how long the employee has worked for the company?

Customer: replied 1 year ago.
The employee worked for the company about 18 months. It was McDonalds, she called into the store on her day off and ordered two items but her friend on the till only charged her for one. She didn't realize and her employer had accepted that the non payment was not intended
Customer: replied 1 year ago.
She worked for McDonalds for 18 months. She called in on her day off and ordered 2 items but her friend only charged her for one .
Customer: replied 1 year ago.
Did u get my post, having problems here
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. The term ‘gross misconduct’ is not specifically defined in law and it is a question of fact and examples of case law as to what it means. Generally, it is classified as the most serious type of misconduct, such as theft, violence, etc which warrant instant dismissal. Whilst there is nothing specific that says there must be intent for there to be gross misconduct, based on a general interpretation it would be expected for that to be the case. Based on the information provided I doubt that this I an example of gross misconduct because the employee did not intentionally try to get a free item or go out of their way to ensure that this had happened. If anything, it would be the person selling her the items that would be guilty of misconduct rather than the purchaser who appears to have been unaware of what happened. So I would be careful about using the label ‘gross misconduct’ in the circumstances.

Saying that, if you wanted to dismiss this person you could do so quite easily anyway because they are not protected against unfair dismissal if they have less than 2 years’ service. You just have to ensure you pay the any notice period they are due and you can still dismiss – try to avoid using gross misconduct though and not paying them notice as that could amount to a breach of contract. So pay them the notice and you can still dismiss if necessary.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Customer: replied 1 year ago.
Do you think the fact that the employer has admitted that the employee's action was unintentional would mean that the employee has valid grounds for appeal against the dismissal?
Expert:  Ben Jones replied 1 year ago.

Hello, happy to continue answering follow up questions, please leave your rating for the initisl advice first, many thanks