How long does gross misconduct stay on record?

Gross misconduct refers to actions or behaviours by employees that are considered a serious breach of the employment contract, bad enough to lose trust in an employee entirely. These actions can be anything from theft to outright violence. The immediate disciplinary action following a finding of gross misconduct is usually summary dismissal, otherwise known as instant dismissal, where the employee is fired without any notice. But how long does gross misconduct stay on a record?

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How long does Gross Misconduct stay on record?

In the UK, there is no mandatory time limit for how long gross misconduct stays on file. However there are several kinds of gross misconduct and multiple factors and circumstances that change how they’re viewed. The following are some things to take into account:

Nature of Misconduct – The more severe the act, the longer it’s likely to remain on record for long periods. For example, direct harm or a severe breach of trust are issues many future employers would want to know about. Furthermore, actions that become a legal matter, especially if a conviction is involved, will almost certainly stick out.

Company Policy – Company policy is unique across organisations and has differing views on record keeping and disciplinary actions. The policy should be outlined in an employment contract or an employee handbook.

Industry – There are certain sectors where a serious breach is forgotten about quickly, such as in work with high turnover rates. That being said, some sectors, such as those dealing with vulnerable people, may have stricter regulations. In these sectors, gross misconduct can stay on record for a much longer time period.

What are the possible consequences of gross misconduct?

Beyond the obvious implication of an employee losing their employment, gross misconduct dismissals can cast a wide shadow over future employer prospects:

Job Applications – Many applications ask several questions as to a person’s background. Every new employer will usually ask if the candidate has any unspent criminal convictions, but beyond that, they may ask if the potential employee has been dismissed or faced disciplinary hearing before.

Reference from Previous Employers – For jobs that are complex or have high standards, a reference may be asked from the previous employer. This, of course, isn’t the best outcome for someone with gross misconduct on record.

Background Checks – We have found there’s an increase of companies who run through background checks.

What if a person suffered an unfair dismissal?

If a person believes that their dismissal was unfair, they may file an unfair dismissal claim. However, it’s worthwhile to note that having gross misconduct on their record whilst issuing this claim will likely only weaken the perceived legitimacy. Nonetheless, a former employee can take their previous employer to an employment tribunal if this is how they feel, but then here are some things to take note of:

• Burden of Proof – In an unfair dismissal claim, the burden of proof is on the former employer. This means that they have to prove that the dismissal was fair by demonstrating a legitimate reason for dismissal, such as gross misconduct. They must prove the employee’s actions warranted gross misconduct, and that they were dismissed by company policy.
• Weakened Argument – A gross misconduct charge will be scrutinised. If the employee’s actions are seen in a poor light, the employment tribunal will likely see their case as undermined.
• Reduced Compensation – If an employment tribunal sides against the employee, then it’s likely that the compensation received will be reduced considerably, if any is received at all.
• Importance of Final Written Warning – The final written warning, also known as a formal warning, can play a critical role in the tribunal. A properly issued warning for behaviour that foreshadows the context of gross misconduct charge will be huge evidence in justifying dismissal.

Is my unfair dismissal worth pursuing?

There are challenges, but also strong reasons as to why a former staff member should go after a former employer as a result of a dismissal deemed unfair:

Clear Procedural Error – If the employee has been advised that the employer committed a serious breach of procedure, this will reflects very poorly on them, and brings their judgement into question. This opens the door for further scrutiny across the case as a whole, which may have a snowball effect in the employee’s favour, especially if know a full investigation would look bad on the former employer.

Mitigating Factors – If there were mitigating factors around the misconduct, then being able to demonstrate this would aid an employee’s case.

What can a previous employer disclose?

When approaching a new job, a lot of people fear what their previous employment may say, possibly making it harder to secure employment. It’s vital to understand, then, where the boundaries are.

Employer Obligation – A previous employer is not legally required to give over a reference. Those who choose to, however, are legally bound to ensure the information given is truthful, fair and accurate. Information should be kept purely to their actions, and ensures to avoid discrimination. This means an employer must not speak of their previous employees health, protected characteristics or personal information. When speaking of a legal matter, information must come with irrefutable evidence.

Protection for Employees – If a person believes a past employer has provided a misleading, exaggerated or unfair reference, they are within their rights to pursue legal action. Our advice would be for a person to find legal advice as fast as possible.

Importance of Transparency – Hiding a dismissal for gross misconduct comes with risks. Employers are likely trained to look for gaps in employment history and inconsistencies with given information. For potential employees, being upfront and honest, and providing common examples of moving forward in life is the best policy in most cases, as it’s an attractive quality in all human beings.

The immediate implications of gross misconduct

The fallout of a dismissal isn’t just about new job prospects, but also the potential shockwave that will ring out for a person’s finances and well-being.

Financial Fallout – Instant dismissal means an abrupt loss of what is likely to be the former employee’s primary income source. This can create immediate stress and anxiety. Here are some things a dismissed person should do:

• Review Contract – The employment contract will outline company policies regarding entitlement to outstanding salaries, unused holiday pay and contractual notice periods. Some companies may have some safeguards in place that will allow an employee to leave with some security.
• Contact Citizens Advice – Citizens advice and related organisations are invaluable resources for citizens in many areas, mostly revolving around rights and government assistance.

Impact on Health – A dismissal of this nature can leave many people feeling poorly, both in body and mentally. We have seen many people whose self-esteem has been affected adversely as a result.

• Don’t Isolate – Dismissed employees should speak to friends and work through what happened so they understand their position. Having support will make it easier for a former employee to tackle their gross misconduct issue.

Logistical Matters – After dismissal, there will still be loose ends for the former employee to tie up that may feel awkward.

• Company Property – All company property will have to be returned, and many employees feel uncomfortable doing so. We would recommend the former employee find a way to leave the property in the hands of someone they’re friendly with in the company, or leaving it at the receptionist if they have to.
• Project Handouts – Dismissal could send some projects and client relationships into upheaval. It’s best for the former employee approach all with professionalism and transparency, not paint anyone as the enemy, and cooperate with all handover procedures.

FAQs

What are examples of Gross Misconduct?

The following table will outline the different actions that are considered gross misconduct.

Can a person be fired from a new job if they discover past gross misconduct?

Yes, past  gross misconduct can lead to dismissal from a new job. The following are the reasons why:

• At-Will Employment – Some sectors allow for employers to dismiss at will. Others allow for a shorter probation period than normal. Nonetheless, in these situations, we would expect an employer to immediately pursue dismissal.
• Duty of Honesty – It’s not mandated that an employee share everything with their employer, but if they failed to be honest about gross misconduct when the topic was broached, even through open questions, then it’s likely they will lose trust for that employee entirely. This depends on the sector they are working in, however. Actors, for example, are known for telling white lies to get a role.
• Contract Clauses – There could be contractual clauses reserving the right to dismiss any employee lying about past work history. Breaching a employment contract for the second time by lying anyway is likely to lead to  dismissal.

Can Gross Misconduct prevent people from working in certain industries?

Yes, it can. Here is how:

• Vulnerable Sectors – Some sectors involve working with vulnerable people, such as the elderly or children. In these sectors, to maximise protection, employers are held to high standards. This leads them to have a zero-tolerance policy against certain types of misconduct, as well as strict background checks to ensure they don’t jeopardise security.
• Reputation Damage – Gross misconduct can destroy the reputation of a person in certain sectors. For example, if a gross misconduct has to do with violence, and they work in a care environment, this would likely raise serious red flags.
• Licensing and Certifications – Some industries require specific licenses to enter, and gross misconduct may invalidate or prevent a person from getting or renewing a license.
• Informal Networks – A lot of industries, online B2B especially, is full of contacts who know each other. News can travel between them, which could be bad if the person is not held in high esteem, or if they consider the issue to possibly be against their company principles.