Misconduct or gross misconduct: what to check first

Something has happened. A till is short, a driver has been seen on a phone at the wheel, two people in the warehouse have had a shouting match in front of a customer. Within an hour someone will ask you whether this is a sacking offence.

Most of the trouble comes from answering that in the wrong order. Whether what happened is misconduct or gross misconduct decides the notice you owe. It does not decide the process, because the process is the same either way.

Work out which of the two you are dealing with

Start with the statute, because it is shorter than people expect. Section 98 of the Employment Rights Act 1996 requires an employer to show the reason for a dismissal and that it is one of four reasons in subsection (2), or some other substantial reason of a kind that justifies dismissing an employee in that position. The four are capability or qualifications, conduct, redundancy, and a statutory restriction that stops the person doing the job. Section 98, Employment Rights Act 1996.

Having a reason is the first half. Section 98(4) is the second: whether the dismissal is fair depends on whether, in the circumstances, including the size and administrative resources of your business, you acted reasonably in treating that reason as sufficient.

There is no statutory definition of gross misconduct and no list in any Act. What an employer is measured against instead is the working description in the Acas Code. As checked on 9 October 2026, the Code in force is the Acas Code of Practice on disciplinary and grievance procedures, issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, laid before Parliament on 16 January 2015 and in effect from 11 March 2015. Acas Code of Practice on disciplinary and grievance procedures.

Paragraph 23 of the Code is the whole of it: "Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct." Acas Code, paragraph 23.

Read both sentences. The first is the one people quote. The second is the one tribunals read.

The Code does not supply the examples either. Paragraph 24 puts that on you: disciplinary rules should give examples of acts the employer regards as gross misconduct, which "may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination." GOV.UK calls this summary dismissal, dismissing someone instantly without notice or pay in lieu of notice, usually because of gross misconduct, and gives theft, fraud and violence as examples. It says you must still follow a fair procedure as you would for any other disciplinary matter. GOV.UK on fair dismissals.

So the task is not to find the official list. It is to write your own examples, in the language of your business, before you need them.

What the classification changes is notice. Section 86 of the 1996 Act sets the statutory minimum for anyone continuously employed for a month or more: not less than one week if continuous employment is less than two years, one week for each year between two and twelve years, and not less than twelve weeks at twelve years or more. The contract may give longer, and the longer period is the one you owe. Section 86, Employment Rights Act 1996.

Section 86(6) is the exception that gross misconduct relies on: the section "does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party." That is what dismissal without notice, or without pay in lieu of it, rests on.

The other classification question is quieter and more common: is this something the person did, or something they cannot do? Section 98(3)(a) answers it, defining capability as capability "assessed by reference to skill, aptitude, health or any other physical or mental quality".

Acas puts the consequence plainly. Where the problem is capability, you should support the person to improve first, including with training, and treat dismissal as a last resort; where it becomes clear they will not reach the standard, Acas says to try changing their duties or finding another role before dismissal. Where the problem is conduct, try to resolve it informally where you can, and move to a formal procedure where that is not possible or not suitable, for example for serious or gross misconduct. Either way, the procedure must be in line with the Acas Code. Acas on dismissals for capability or conduct.

Cases that look like both are the normal small-business case. Falling short of a target is capability; covering it up is conduct. Run each on its own track and say in writing which one you are on. Our guide to performance improvement plans and capability dismissal takes the capability track from the first informal conversation to the appeal.

Where the conduct alleged is harassment or discrimination, more than the disciplinary procedure is engaged, and Acas is explicit that you should not move the person who made the complaint unless they ask to be moved. Acas on handling a sexual harassment complaint. Our guide to harassment prevention beyond the policy covers the duty behind it.

Follow the Code's six steps and write each one down

Not following the Code is not a claim in itself. It matters for what a tribunal can do with an award. Under section 207A of the 1992 Act, where the Code applied and an employer unreasonably failed to comply with it, the tribunal may increase any award it makes to the employee by no more than 25 per cent if it considers that just and equitable, in the jurisdictions listed in Schedule A2. It works the other way for an employee's own unreasonable failure. Section 207A, Trade Union and Labour Relations (Consolidation) Act 1992.

Acas sets the procedure out in six steps. Acas disciplinary procedure, step by step.

Scroll across the table if needed.

The right to be accompanied in row 2 is statutory, not Code guidance. Section 10 of the Employment Relations Act 1999 allows one companion, who must be another of your workers, an official employed by a trade union, or a union official certified in writing by the union as having experience of, or training in, the role. If the companion cannot attend, you must postpone to an alternative the worker offers that is reasonable and falls within five working days beginning with the first working day after the day you proposed. Section 10, Employment Relations Act 1999. A decision to dismiss should only be taken by a manager with the authority to take it, which in a business your size usually means you.

One overlap is worth knowing in advance. Where an employee raises a grievance during a disciplinary process, the Code says the process may be temporarily suspended to deal with it, or the two dealt with concurrently where they are related. Our guide to handling a grievance under the Acas Code sets out that second procedure.

Suspension is not a holding position while you think. Acas says to consider it only if you reasonably believe it would protect one of four things: the investigation, for example where evidence might be damaged or witnesses influenced, the business, other staff, or the person under investigation. It lists alternatives to try first, among them a temporary change of shift or site, working from home, or removing access to a system. Acas on deciding to suspend.

Acas is blunt about what suspension is not: it does not mean the employee has done anything wrong, and it should not be used to discipline someone. The Code adds at paragraph 8 that suspension with pay should be as brief as possible, kept under review, and made clear not to be a disciplinary action. Acas Code, paragraph 8. Acas says the suspended person should continue to get their pay and any benefits in their contract. Acas on pay during suspension.

Write down which of the four you are protecting on the day you suspend, and diarise the review.

Decide now who investigates and who decides

Paragraph 6 is where the Code and a two-manager business part company. In misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing. Paragraph 3 is the concession: tribunals will take the size and resources of an employer into account, and it may sometimes not be practicable for all employers to take all of the steps in the Code. Acas Code, paragraphs 3 and 6.

Acas fills the gap in its investigations guidance. Get somebody not involved in the case to investigate, to avoid a conflict of interest, and if that is not possible, make the procedure as impartial as you can. In exceptional circumstances an external consultant might be appropriate, more detached and independent, though that costs more and takes longer. Acas on preparing for an investigation.

Most businesses this size have a third name available even when it does not feel like it. Decide the order of preference before anything happens and write the names down:

• another manager or director with no involvement in the subject matter investigates, and you hear the case
• an external HR adviser investigates, and you hear the case
• you do both, having considered the first two and recorded why neither worked

The third is available, and paragraph 3 is written for it. What it does not survive is a file showing you had decided the outcome before the hearing, which is why the investigation notes and the hearing notes need to read as two separate exercises. Keep the appeal separate if you can: the Code says an appeal should be dealt with impartially and, wherever possible, by a manager not previously involved.

Keep the file, and expect the employee to ask for it

Acas says to keep a written record of all disciplinary cases, including the ones where no action was needed, and that the outcome and details must stay confidential. GOV.UK says to keep notes of all meetings and give the employee copies. GOV.UK on dismissals for conduct or performance.

On how long, there is no legal number to quote. The ICO states that data protection law does not set specific time limits for keeping workers' personal information, that you should set up a retention policy or schedule listing the records you hold, what you use them for and how long you intend to keep them, and that you should not take a one-size-fits-all approach. That guidance is under review following the Data (Use and Access) Act. ICO on collecting and keeping employment records.

What has changed is how long the file has to stay useful. Since 1 October 2026 the time limit for most tribunal claims has been six months rather than three, with Acas early conciliation in front of that. Government guidance on tribunal time limits. A file written for a three-month horizon is now short. Our guide to how long to keep leaver records works through which records that applies to.

The ICO says you cannot refuse a subject access request because the worker is going through a grievance or tribunal process, that you must respond without delay and within one month of the request, though you can extend by up to two months where the request is complex or the worker has sent several, and that you do not have to disclose information identifying another person unless they consent or it is reasonable to comply without their consent.

That last point is where witness statements sit, and it is a decision taken case by case rather than a rule. The ICO says to weigh the other person's reasonable expectations, any duty of confidentiality you owe them, any refusal of consent, the type of information you would be disclosing, and at work their seniority and role. Its own worked example withholds the statements, because they were given with an expectation of confidentiality and redaction would not have hidden who wrote them. ICO subject access request questions for employers.

So write the notes to be read by the person they describe, not filed away from them.

Two things to do before the next incident

Two tasks, neither of which needs an incident to justify it. Write the examples into your disciplinary rules. Then decide, in writing, who investigates, who hears the case and who hears an appeal, with the fallback recorded.

The date to work to is 1 January 2027. Regulations made on 26 May 2026 commence the rest of section 25 of the Employment Rights Act 2025 on that day, and they apply where the effective date of termination falls on or after it, even if notice was given before. Commencement regulations, SI 2026/559. From that date the qualifying period for ordinary unfair dismissal falls from two years to six months, the qualifying period for requesting written reasons for dismissal falls to six months too, and the cap on compensatory awards is removed. The changes apply in England, Scotland and Wales and not in Northern Ireland. Unfair dismissal rights for employers. Our guide to preparing managers for the six-month qualifying period sets out the probation side of the same date.

That change does not alter the process in this guide. It alters how many of your staff can bring the claim that tests it.

One more thing is moving, and it has not moved yet. Acas consulted on a revised Code between 30 July 2026 and 23 September 2026 and is reviewing the responses. No outcome document and no implementation date have been published, and an updated Code would go to the Secretary of State and then be laid before Parliament. Acas consultation on the draft Code. The draft would put informal resolution into the Code itself, make a meeting notification say what informal steps were taken, tighten suspension and reach workers rather than only employees. All of that is a proposal. The 2015 Code is the one you follow today.

Before a decision about an individual, check the current guidance and seek appropriate advice.

Common questions

Is there a legal list of what counts as gross misconduct?

No. There is no statutory definition of gross misconduct and no list in any Act. What an employer is measured against is the working description in the Acas Code of Practice on disciplinary and grievance procedures, which at paragraph 24 puts the duty to give examples on the employer's own disciplinary rules: they "may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination". Writing your own examples, in the language of your business, is the task the Code sets you. Acas Code of Practice on disciplinary and grievance procedures.

Can you dismiss someone for gross misconduct without notice?

Section 86(6) of the Employment Rights Act 1996 preserves the right of either party to treat the contract as terminable without notice by reason of the conduct of the other party, and GOV.UK describes dismissal without notice or pay in lieu of notice as usually following gross misconduct. GOV.UK also states that you must still follow a fair procedure as you would for any other disciplinary matter, and Acas Code paragraph 23 says the same. Section 86, Employment Rights Act 1996. GOV.UK on fair dismissals.

Can the same person investigate and decide in a small business?

Acas Code paragraph 6 says that in misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing. Paragraph 3 records that employment tribunals will take the size and resources of an employer into account and that it may sometimes not be practicable for all employers to take all of the steps in the Code. Acas adds that where nobody uninvolved is available you should make the procedure as impartial as you can, and that in exceptional circumstances an external consultant might be appropriate. Acas on preparing for an investigation.

Is it misconduct or capability if someone cannot do the job?

Section 98(3)(a) of the Employment Rights Act 1996 defines capability as capability assessed by reference to skill, aptitude, health or any other physical or mental quality, which separates what a person cannot do from what they did. Acas says that where the problem is capability you should support the person to improve first and treat dismissal as a last resort, and that where it becomes clear they will not reach the standard you should try changing their duties or finding another role before dismissal. The procedure must be in line with the Acas Code in either case. Acas on dismissals for capability or conduct.