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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?
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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.
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