When 'Gross Misconduct' isn't 'Gross'

A recent judgment from the Employment Appeal Tribunal has shown how employers can go wrong when dismissing for gross misconduct.

In Kisheva v Secure Frontline Services Ltd, a security officer with over 12 years service left her shift after an argument with a colleague, and told a supervisor she was leaving. She didn’t phone the employer to explain why, which the employer treated as gross misconduct, dismissing her without notice, which on the face of it might seem unsurprising, but there was nothing in the employer’s policy that required her to have phoned her employer. At the Employment Tribunal, the employer lost the unfair dismissal case because it failed to investigate and follow a fair procedure before dismissing, the Tribunal found the dismissal ‘unfair’ but reduced compensation to zero because, having found that the employee had committed gross misconduct by not phoning the employer to explain her absence, she had contributed to her dismissal and it also said that a fair procedure would inevitably have resulted in a fair dismissal. The employee’s claim for notice pay (wrongful dismissal) failed because the Tribunal found she’d committed gross misconduct by walking off shift. The employee appealed.

At the appeal, the judge closely scrutinised the Employment Tribunal’s decision and decided that it had been wrong to treat the employee’s conduct as ‘gross misconduct’. Examining the employer’s policies, it was noted that none of the examples of gross misconduct in the policy were remotely close to what the employee had done, and leaving site early was listed as something that was just misconduct, and not grounds for dismissal without notice. Given that the leaving site was specifically listed as something less serious than gross misconduct, and not phoning wasn’t even mentioned, the employee hadn’t committed gross misconduct the Employment Tribunal’s finding of gross misconduct was held to be ‘perverse’ – a decision that was so wrong it couldn’t stand. The case was sent back to a different Employment Tribunal to consider compensation for unfair dismissal and notice pay.

The take-aways from this case are:

1. For employers, don’t assume that conduct can be categorised as gross misconduct without it being either set out in a policy or being conduct that is obviously similar to specific examples, particularly where similar conduct is not categorised as gross misconduct.

2. Always investigate, follow a fair procedure and allow time to gather evidence and to hear the employee’s side before coming to a decision.

3. Make sure with gross misconduct cases that the allegations are serious enough to be properly termed gross misconduct.

https://assets.publishing.service.gov.uk/media/695e2fe98832ab3a4851380e/Ms_Yovka_Kisheva_v_Secure_Frontline_Services_Ltd__2025__EAT_194.pdf

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