How to Handle Cases of Potential Gross Misconduct

A recent tribunal case has provided a useful reminder about key points to consider in cases of potential gross misconduct.

Background:

In the case of Mr G Romano v Norwich City Football Club plc, Mr Romano was a long-serving steward at the Club. Outside working hours, he forwarded a text from his personal phone featuring an inappropriate image of two politicians. He had intended to forward the image to a friend, but sent it by mistake to a member of the NCFC staff. He was subsequently dismissed for gross misconduct. At a recent Employment Tribunal, he won his case for unfair dismissal and the judges gave useful information on where the employer had gone wrong

Key learning points:

1. In a gross misconduct case, make sure the allegation does actually come under one or more of the examples of gross misconduct in your disciplinary policy. 

In this case, the dismissal was defined as gross misconduct. The employer was relying on the following examples of gross misconduct from their Disciplinary Policy in the Employee Handbook:

• • “instances of bullying or harassment (whether it takes place in person or online)”. 

The person who received the message in error stated that they were not offended by it, nor did they feel harassed or bullied by it, they just felt it was inappropriate. As the only recipient, there was therefore no evidence that anyone had been bullied or harassed by the message.

• • “acts of discrimination against fellow staff members, clients or customers” 

The message did not refer to any staff members, clients or customers of the Club, so there was no discrimination in this context.

• • “any conduct that negatively affects our reputation (bringing the employer into disrepute)”.  

The recipient was internal to the Club, and, as no one else saw the message, there was no impact on the Club’s reputation.

2. Don’t make assumptions without properly investigating.

It appears that the Club, in taking the action it did, was concerned that the employee held sexist, racist or transphobic views which could have been brought into work. However, the employee had worked for the Club for 12 years without any previous incidents. The tribunal recommended that the disciplinary investigation should have included a more detailed discussion with the employee’s line manager about the employee’s behaviour and any concerns about his views and how he expressed these at work. 

Final thoughts

Employers must ensure that their disciplinary processes are clear, consistently applied, and well-documented to reduce the risk of tribunal claims. As your outsourced HR partner, we are here to support you in managing these complex situations with confidence and care. For a review of your disciplinary policy or advice about a specific case, contact us today – we’re ready to help you protect your business.