Safety and professionalism are held to the highest standard in educational settings, and rightly so. In an environment where young people are in your care, there’s nothing more important than ensuring their complete safety. That means when a gross misconduct incident occurs, school leaders are faced with a challenging situation: maintaining the duty of care owed to their students while ensuring a fair procedure for the accused employee.
When serious allegations arise, a school’s ability to uphold its decisions that follow relies entirely on conducting a thorough, unbiased investigation and following strict disciplinary procedures. In this guide, we explain what legally constitutes gross misconduct in an educational setting and the steps that must be taken to manage this critical disciplinary occurrence objectively and in complete compliance with statutory guidance.
What is gross misconduct?
Gross misconduct describes behaviour that completely destroys the relationship and trust of confidence between an employer and employee. Different to minor and serious misconduct, this term encapsulates the most extreme actions an employee could take in their workplace.
For the act to meet the legal standard of the term, it must demonstrate a wilful contradiction of school policies, in other words, a conscious and voluntary disregard for safety and duty. This behaviour doesn’t always come in the form of one huge contradiction of policy, sometimes, a pattern of deliberate minor breaches can accumulate to be serious enough to be defined as gross misconduct.
Schools and educational facilities are under the highest legal and moral responsibility due to their direct work with vulnerable young people. In order to protect children and teenagers, the threshold for what is classed as a breach of trust is significantly lower for teachers and other members of school staff.
The Teachers’ Standards and professional conduct
In the UK, the Teachers’ Standards clearly outline a statutory minimum for professional school staff behaviour both on and off school grounds. The guidance highlights that teachers should:
- Treat students with dignity and build relationships on mutual respect
- Maintain proper boundaries between themselves and pupils
- Safeguard pupils’ well-being in alignment with Keeping Children Safe in Education (KCSIE)
- Show respect for the rights of other people, including complete practice of non-discrimination regarding protected characteristics
- Make sure that personal conduct does not damage the reputation of teachers and learning environments
A clear breach of Part 2 of the guidance can often provide the legal foundation for accusations of gross misconduct.
Examples of gross misconduct in schools
Gross misconduct in schools can occur in a multitude of different ways, ranging from severe safeguarding failures to financial dishonesty. Here are the core umbrella terms:
Child protection failures and gross negligence
This involves crossing appropriate professional boundaries with students. For example, sharing personal contact details, private messaging, or meeting outside of school hours without authorisation. Similarly, initiating inappropriate physical and verbal conduct, whether explicit or suggestive, is a form of safeguarding failure.
Furthermore, failure to report any of these issues, regardless of whether they’re alleged or suspected, is classed as an example of gross misconduct.
Finally, behaviour that results in the immediate danger or serious harm of students, particularly the failure to properly supervise young children or those with additional needs, is largely regarded as a serious failure in appropriate conduct.
Harassment and bullying
This accounts for any instance of intentional physical aggression towards students, staff members, family members, or visitors on school premises or school trips. Equally, repeated intimidation or bullying of pupils or colleagues comes under this definition.
Discriminatory and hate-based language would be a direct breach of the Equality Act 2010 and therefore are treated as such.
Theft, fraud, and dishonesty
This can occur in the form of embezzlement or unauthorised handling of school funds, charity donations, and student trip money.
Alternatively, the falsification of school documents (assessment marks, attendance records, timesheets, and safeguarding logs) can result in an accusation of the destruction of a working relationship.
Providing false or deceptive documentation prior to employment is also included in this category as criminal records or falsifying employment histories directly compromise safer recruitment procedures and the basis of trust.
Substance abuse and reputational damage
Reporting for work under the influence of drugs or alcohol is an instant breach of conduct in school environments. Equally, the possession of these substances on-site or on school trips is treated the same.
It’s important to note that behavioural issues outside of school cannot be dismissed due to staff being under the influence of substances when the act was committed. Posting offensive or confidential information online or engaging in criminal behaviour when outside of school environments is treated as gross misconduct due to the reputational damage and mistrust it places upon the employing body.
Why schools need to investigate thoroughly
Schools are regarded as one of the workplaces where formal investigations should be held to the highest, most serious standard. With young people in your care, there is a strong legal and moral duty to ensure that the staff employed to support them pose no risk to their physical and mental well-being.
Schools and every staff member employed there have a duty of care to pupils in their care. Carrying out a half-hearted investigation risks leaving students in harm’s way and gives problems room to grow as time goes on.
According to the ACAS Code of Practice, investigations should be thorough and fair. Teachers have the right to a fair and unbiased opportunity to respond to allegations before any formal disciplinary steps are taken. Even just a rumour of gross misconduct being carried out by a staff member can tarnish their reputation for the rest of their lives, therefore, an in-depth enquiry must be held to first and foremost protect students, but also individual teachers’ reputations.
The disciplinary process for gross misconduct
Disciplinary processes are never easy, especially in an environment surrounded by young people who are to be shielded from any staff misconduct instances. Therefore, investigations should be carried out with speed and confidentiality following these steps:
1. Assessment of suspension
Determining whether an employee is too much of a risk to remain on school grounds should be the first response of educational leaders. Considering alternatives such as working from home or relocating an employee to another site within a Trust should always be considered first.
If suspension is unavoidable, it should explicitly be described as a neutral management action, not a disciplinary sanction.
2. The investigation
An independent investigator should be appointed to impartially assess the incident. A range of evidence should be collected in the form of CCTV footage, written witness statements, digital trails, and policy acknowledgements.
A formal interview should be held with the accused member of staff to give them clear details of the allegation and an opportunity to provide their account of the incident before decisions are made about the potential progression to a formal hearing.
3. Disciplinary hearing
When a hearing is necessary, invite the employee by writing and give sufficient notice. The letter should explicitly state the gross misconduct allegations and warn that summary dismissal may be a potential outcome.
It’s crucial to ensure that the employee knows they can bring a colleague or workplace representative and that the hearing panel allows the employee to present a defence and challenge the evidence that’s presented.
4. Reaching a decision
A decision must be reached based on whether it is more likely than not that misconduct occurred, based on the evidence presented.
If gross misconduct is the established outcome of the Employment Tribunal, it must be decided whether summary dismissal is the appropriate conclusion. It’s important to consider the length of unproblematic service, health factors, lack of training, or provocation.
5. The appeal process
All employees, regardless of the outcome of a tribunal, must be given the time to submit an appeal stating their procedural flaws or new evidence.
This appeal is then reviewed by an impartial panel with no prior involvement to ensure an objective review.
The appeal panel will decide whether to uphold the original dismissal, overturn it, or substitute it for a lesser penalty which could take the form of mandatory re-training or a final written warning. Whatever the decision, this marks the end of the investigative process.
Can an employee be dismissed without notice?
Yes, an employee can be summarily dismissed (dismissed without notice) if an act of gross misconduct has been verified. This means that the employee’s contract is terminated immediately, with no required notice period or Pay in Lieu of Notice (PILON).
This summary dismissal is justified because the gross misconduct committed demonstrated a direct breach of contract, meaning that the employer is no longer required to uphold any notice period written in the terms of the document.
It’s important to remember that gross misconduct does not allow for an immediate firing. In fact, any termination of a contract for gross misconduct without a formal investigation following disciplinary procedures almost always results in an Employment Tribunal finding unfair dismissal.
No matter how severe or seemingly obvious the allegations appear to be, school leaders must follow the ACAS Code of Practice on Disciplinary Grievance Procedures, requiring:
- An objective investigation
- Formally written notifications of allegations and evidence
- A formal Employment Tribunal where evidence and defence can be presented
- A written outcome describing the decision made and the outcome of that decision
Common mistakes schools should avoid
Despite severe allegations like gross misconduct needing to be handled with the utmost care in educational settings, there are still common mistakes that school leaders frequently make, such as:
- Judging outcomes from the point of suspension or the initial allegation before the investigation takes place
- Failure to follow official school or ACAS policy
- Poor record-keeping of key meetings and conversations
- Unnecessary delays to the process, increasing stress for all parties involved
These missteps can undermine procedural fairness, expose the school to expensive Employment Tribunal claims, and damage the trust of staff and the wider school community.
How Heads HR can help
Managing a gross misconduct incident is challenging at the best of times. It’s a serious, sometimes lengthy process, but above everything, it’s a spotlight on your duty of care towards pupils and concern for other staff members’ well-being. The key takeaway from this blog post is the importance of getting an investigation process right the first time, not only to protect your school, but other educational environments as well. At Heads HR, we support schools, academies and Trusts with the most complicated of severe conduct allegations, providing advice specific to the exact situation at hand and guiding school leaders through procedural requirements. We lead formal meetings and discussions, ensuring proper note-taking is carried out and that an objective, impartial point of view is present at every stage of the disciplinary process. With our assistance, you can be confident that your investigations are conducted fairly and in compliance with employment law.
Take care of disciplinary matters with an expert by your side and contact our helpful team today.
