What is Gross Misconduct under Irish Law?

Defining Gross Misconduct

The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes “gross misconduct” justifying summary dismissal.

In this regard, I note that the Employment Appeals Tribunal (EAT) held in the case of Desmond Brennan -v- Institute of Technology Carlow UD281/2000 that:

“Lawyers use the adjective “gross” in limited cases. “Gross negligence” means negligence of a very high degree, and quite different from ordinary negligence which can happen quite easily.

Similarly, “gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature. The word used in s.6(4)(b) of the Unfair Dismissals Act is “conduct”, which is a neutral word, by contrast with the word “misconduct” used in the Minimum Notice and Terms of Employment Act to justify dismissal without notice.

The use of these two words in related statutes suggest two different standards, and over the years the Irish Courts have often found that the nature of an employee's conduct was such as to justify dismissal, but not to justify summary dismissal.

The words “gross misconduct” must therefore mean something even more serious."

Gross Misconduct - Conduct Warranting Dismissal

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.

This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

"Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so."

Gross Misconduct - Serious Breach of Trust and Confidence

Also see Moore v Knox Hotel and Resort Ltd, UD 27/2004, where the EAT stated that summary dismissal as a consequence of gross misconduct could be justified when the trust and confidence between the parties had been irrevocably broken:

"[The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of that employment relationship impossible, thereby justifying her […] dismissal”.   

Justifying Dismissal for Gross Misconduct

As to whether there were substantial grounds for an employee’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Further Information

For further information, please contact the author of this article, Barry Crushell.