Thank you for your patience. This is indeed a potential misconduct matter and whilst dismissal could eventually follow, you need to ensure that you have followed a fair procedure because they will be protected against unfair dismissal.
As far as the law stands, misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
There is no list of offences that could amount to GM, and it will often depend on the circumstances. However, closing down a shop in the middle of trading, without good reason or instructions from the employer is likely to be a serious enough act to justify gross misconduct. It has affected the business in a serious way, lost income, affected their reputation, in general it has placed the business into disrepute.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
- Carries out a reasonable investigation;
- Follows a fair disciplinary procedure;
- Has reasonable grounds for believing the employee was guilty; and
- Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.
I will deal with these requirements in more detail:
1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.
2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.
3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.
4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. However, in this case dismissal could be justified.
Follow the above and you could justify a dismissal as being fair. If the employee does not turn up and refuses to answer any requests to attend a disciplinary, you can make a decision in his absence based on the evidence you already have.