How long does gross misconduct stay on your record? - Paul Doran Law

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How long does gross misconduct stay on your record?

How long does gross misconduct stay on your recordHow long does gross misconduct stay on your record?

Gross misconduct is the term used to describe unethical, unprofessional, wrongful, improper or unlawful behaviour at work. The misconduct could be something you do or something you fail to do. It’s often a behaviour that may harm the business or anyone’s health or wellbeing.

If you’ve been accused of gross misconduct in the workplace, it will usually result in immediate dismissal. You won’t get any warnings in advance, you won’t work out your notice period, and you won’t receive payment in lieu of notice (PILON).

In really serious cases, you might even be escorted off the premises straightaway, so you won’t get the chance to clear your desk or say goodbye to your work buddies. You’ll instantly have to return any property that belongs to your employer, such as your company mobile or laptop. And a colleague will be tasked with bringing you your personal belongings. This is an unpleasant experience but it’s designed to prevent the risk of sabotage.

There is no law that details how long gross misconduct should remain on your employee record. It depends on your industry sector, your employer’s policies, and the nature of the misconduct.

It’s likely that your employer will keep a record on your file for a reasonable amount of time. They need to do this in case of future legal action or to help inform hiring decisions. You’ll have to accept that it will probably stay on record for a good few years. In the case of serious misconduct, they might keep it on record indefinitely. That also applies in sectors where the regulations are more stringent, such as jobs that need security clearance or roles working with vulnerable people.

Your employment contract or staff handbook will state how long gross misconduct records remain on the employer’s file. If not, it should be stated at some point during the disciplinary process so you are no in any doubt.

If your conduct is less serious, and doesn’t merit instant dismissal, you will receive verbal and/or written warnings. Those behaviours include things like consistent lateness, missing deadlines, poor quality work, or going off sick when you’re not actually ill. Records of warnings you receive will remain on file for whatever time period is specified in your employer’s disciplinary and grievance policy – you’ll find this in your staff handbook or employment contract (or both). It’s typically six months but the seriousness of warnings goes up in stages. If it’s a ‘final warning’, it can be as long as 12 months.

Defining ‘gross misconduct’

Here are a few of the situations that would usually be classed as gross misconduct:

Check your staff handbook for the list of behaviours that qualify as ‘gross misconduct’ at your own workplace.

If your employer finds that you’ve committed gross misconduct, they have the right to dismiss you, instantly. You might hear it called ‘summary dismissal’.

The instant dismissal process

Note that ‘instant’ doesn’t always mean ‘instant’. Before you’re dismissed, your employer should carry out a full investigation and a disciplinary hearing. Here are some of the considerations:

No matter what they accuse you of, your employer must follow the Acas guidelines when they dismiss you. That is, the dismissal process must be fair, lawful and consistent.

What wouldn’t be fair is for you to be dismissed for something you didn’t know was gross misconduct (for example), or for you to be dismissed for a behaviour that another employee also does but they don’t lose their job for it.

If your employer doesn’t follow the proper dismissal process, you could take them to the employment tribunal for unfair dismissal and/or discrimination.

As employment lawyers, we act for employees who’ve been treated badly at work. Give us a call and we’ll talk you through your chances of winning your case.

Dismissed and looking for another job?

Don’t delay, even if you’re stressed about the way your previous employment ended. Getting ‘back on the horse’ is the best way to move on. A new job will give you the opportunity for a brand new start, not to mention the self-esteem that comes from earning an income.

You might be worried that being dismissed with ‘gross misconduct’ on your record will work against you when you go job-hunting. If you can explain what happened in a reasonable way, a future employer should accept it, especially if there’s not much competition for the role. As time goes on, the incident that cause your dismissal will become less and less relevant to your career.

When you go for interviews, you do need to be prepared to answer the question: “Why did you leave your last job?” It’s a standard question, not designed to catch you out.

You don’t legally have to tell the interviewer that you were dismissed, but they might find out later so it’s best to tell the truth in the first place. If you lie, there’s a chance you’ll be labelled a liar later, and this will not do you any favours. Being open and honest is an attractive quality to employers. Keep your explanation short and sweet, and show remorse to demonstrate that you’ve learned from your mistakes and won’t repeat them.

The prospective new employer will probably ask your previous employer for a reference. They don’t have to provide one, but if they do, the law says that the reference must be fair and honest. Because of that, it’s likely they’ll explain that you were dismissed for gross misconduct, and this may count against you, even if you tell your side of the story.

So here’s a tip…

Ask your previous employer for a ‘basic reference’ before you go job-hunting. This is a reference that only includes the dates you worked there, your job title, and your salary. We’re not saying you should deliberately conceal the true story, but this way there is less chance that the prospective new employer will dig any deeper.

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