Can they sack my two-year-old son?
CAN THEY SACK MY TWO-YEAR-OLD SON?
Nick reviews his son’s conduct in nursery and considers whether, if he was an employee, his actions amounted to gross misconduct and therefore justify his dismissal…
My son has reached the “terrible twos” and I had an interesting handover when picking him up from nursery yesterday. The day was described as being 60/40 and I was then informed of the incidents that had occurred during the day; there were quite a few!
Luckily my son is not currently employed, and I am not picking him up from work. If he was employed, could he be dismissed for his actions? Did his actions amount to gross misconduct?
What is gross misconduct?
Gross misconduct is conduct so serious that it justifies the summary dismissal of an employee. Summary dismissal is the dismissal of an employee without notice. Let’s look at some of the incidents at nursery and see whether they would amount to gross misconduct in the workplace.
The first incident at nursery involved my son using his hoody as a whip and hitting a sleeping girl.
Hitting another person with or without a weapon would be an assault. Assaulting someone at work (whether a colleague or a customer) or, in fact, any physical violence would be a clear example of gross misconduct.
I doubt many employees would be surprised if they were dismissed for an act of violence. It is one of the more obvious examples of gross misconduct and there is often little that an employee can do to justify their actions in an attempt to keep their job.
I am sure my son would have argued that sleeping on the job is also gross misconduct (in many roles, such as those in the care sector, sleeping is particularly dangerous and, therefore, serious) and that he was simply trying to wake her up. However, a gentler approach would have worked better, or he could have reported this to his supervisor. Therefore, this is is not likely to be a successful defence.
The second incident was reported as my son having another boy in a headlock. This is likely again to be classed as physical violence and therefore would be classed as gross misconduct.
I was quite surprised at this one and I’m not convinced that the headlock was his real intention. Unlike me, my son likes a hug and will often hug other children. He was, therefore, probably going in for a hug and it ended up in a headlock. That said, hugging another employee could also amount to an act of misconduct depending on the intentions of the hugger or the perception of the huggee. I’ve probably done enough on hugging this month. See my earlier blog post here where I discuss if hugging can amount to harassment – harassment is an example of gross misconduct too.
Damage to property
The third incident was the throwing of a book. Deliberate or serious damage to property is usually classed as gross misconduct in an employer’s disciplinary policy. Luckily, the book was not damaged, but the intent and the actions may still be enough to class the conduct as gross misconduct.
Again, if you picked up an item of work property and launched it across a room, you would probably accept that dismissal was a risk from your actions. A lot of this is common sense and comes down to what is reasonable.
An employer may also look at this act as a serious breach of health and safety. The object could have hit someone and that could have injured them. Serious breaches of health and safety are listed in many disciplinary policies as an example of gross misconduct.
The incidents above were all that nursery informed me of. The final act of misconduct was not discovered until we got home. My son proudly pulled up his jumper, produced a little toy orange and said “took from nursery”.
Theft is another obvious example of gross misconduct but is one that employees are sometimes surprised to be dismissed for. Employees sometimes look at the value of the item taken and consider that theft is less serious for smaller items. However, theft is a dishonest act no matter what is taken and it is unlikely that a Tribunal would consider it an unreasonable response to dismiss an employee for an act of theft – even if it was just one orange.
A finding in a disciplinary hearing that an employee had committed an act of gross misconduct, does not automatically mean that the employee will be dismissed. An employer would look at things like length of service, the likelihood of it happening again and an acceptance of wrongdoing.
There is one thing that my son is very good at and that is saying sorry. My son did not deny any of the acts and did apologise for each. Whether that would be enough to save his job, may depend on the seriousness of the offences and his otherwise good conduct (which was questionable that day).
What to do if you are an employer who thinks an employee has committed an act of gross misconduct?
If a member of staff has hit another member of staff or has stolen from you, the temptation may be to dismiss an employee on the spot. However, no matter how serious the offence or how fair it may (eventually) be to dismiss an employee, it is important to take the employee through the full disciplinary process first. There are some exceptions for employees with less than 2 years’ service where it can be easier.
Your disciplinary process should be set out in your employee handbook and it is important to follow this. It is also important to consider the ACAS Code of Practice on Discipline and Grievance. It is important to get the process right as a dismissal could be unfair simply because of the procedure (or lack of) followed. The first step is a thorough investigation of the allegation(s).
What to do if you are an employee accused of an act of gross misconduct?
It is important to remember that the burden of proof for an employer is not the same as in a criminal court. An employer does not have to make a finding “beyond all reasonable doubt”. An employer is simply to consider whether it was more likely than not that the employee acted as alleged – “the balance of probabilities”.
Therefore, it’s often not a good idea to use the hearing as an opportunity to pick little holes in the employer’s “case” as this is likely to get you on the wrong side of the person making the decision. If the evidence is quite clear (CCTV, multiple witnesses, computer records, etc.) the best course of action may be to admit the wrongdoing in the hope that this is taken into consideration when the sanction is decided. Say sorry, like my son.
If you did not do it and the evidence is not clear, of course you should do everything you can to explain why the evidence is incorrect or why a witness would make something up (for example, you had an affair with the witness’ wife and he does not like you).
You may want to take some advice ahead of the hearing on the best approach to take.
So, could they dismiss my son?
My son would be facing a long list of allegations that amount to gross misconduct. I don’t think any amount of remorse would save an employee from dismissal with so many serious allegations (on the same day). I think summary dismissal would be a fair sanction.