The Summary Dismissal Myth: Why "Firing On The Spot" May Be Legal Suicide In 2025

Can you truly dismiss an employee on the spot without risking a costly tribunal claim?

How do you know when misconduct really crosses the line into behaviour that justifies immediate termination?

These questions sit at the heart of every decision about gross misconduct. One wrong move and you risk a claim for unfair dismissal, wrongful dismissal, or discrimination. One slow move and you leave your staff, clients, or business exposed to serious harm.

Many employers still think gross misconduct means they can fire someone instantly and walk away. That myth is dangerous. Summary dismissal is one of the highest‑risk decisions you can make as an employer in the UK. Tribunal awards for unfair dismissal often sit between £8,000 and £15,000, and that does not include your own management time or legal fees.

At the same time, you cannot ignore serious misconduct. Theft, violence, data breaches, or harassment need fast, confident action. You have a duty to protect staff, customers, and your organisation’s reputation. The tension between acting fast and staying legally safe is where most employers feel stuck.

What makes 2025 different is the way tribunals look at your decisions. New Employment Appeal Tribunal rulings, such as Impact Recruitment Services Ltd v Ms I Korpysa [2025] EAT 22, sharpen how courts view “genuine but mistaken belief”. Compensation caps have risen again. There is also sharper focus on mental health, discrimination, and “institutional bias” in cases like First Greater Western Ltd v Moussa [2024] EAT 82 and Mrs B. Sritharan v Deloitte LLP [2025] EAT 5.

This guide walks you through when gross misconduct can safely lead to summary dismissal, and when it cannot. You will see clear examples, a practical breakdown of the Burchell Test, a step‑by‑step procedure map, 2025 legal updates, and warning signs that tell you to slow down. Drawing on Litigated’s analysis of the latest UK cases, this article gives you a framework you can actually apply, not just legal theory.

Key Points to Consider

• Process matters as much as conduct. Summary dismissal is only safe when you have both a solid reason and a fair, well‑recorded process. You need to show that the conduct amounts to gross misconduct and that you followed each procedural step. Without both, even very serious behaviour can still lead to an unfair dismissal finding.
• The Burchell Test still rules. The Burchell Test is still the foundation for safe decisions in 2025. Tribunals accept that you act on a reasonable belief based on a fair investigation, not perfect proof. Recent cases, including Korpysa, confirm that a genuine but mistaken belief can still be fair if your process and evidence were reasonable.
• Some categories are lower risk, but never risk‑free. Certain categories of gross misconduct, such as theft, serious dishonesty, violence, and major health and safety breaches, are lower‑risk grounds for summary dismissal when well documented. The ACAS Code of Practice is not optional; ignoring it can increase compensation by up to 25 percent. Even where the case looks obvious, you still need a full investigation, a disciplinary hearing, and an appeal stage.

What Actually Constitutes Gross Misconduct in 2025?

When you think about gross misconduct, you are dealing with behaviour so serious that it breaks the basic trust between you and the employee. It is more than poor performance, annoying attitude, or one clumsy mistake. It is conduct that says, in effect, “I no longer respect the core terms of this job.”

Legally, gross misconduct is a repudiatory breach of contract. That means the employee’s behaviour is so serious that you are entitled to treat the contract as finished straight away. In practice, this is what allows you to consider summary dismissal, without notice or payment in lieu of notice.

There is no fixed list of acts that always count as gross misconduct in UK law. Context matters. The same act might be gross misconduct in a bank but not in a small workshop, or the other way round. Tribunals look at:

• the nature of your business
• the employee’s role and level of responsibility
• your written rules and past practice
• the real‑world impact of what happened.

You also have to separate ordinary misconduct from gross misconduct. Lateness, minor policy breaches, one‑off rudeness, or small mistakes usually call for warnings, not dismissal. Gross misconduct is reserved for things like serious dishonesty, violence, dangerous safety breaches, major harassment, serious data misuse, and similar behaviour that strikes at the heart of your trust, with comprehensive guidance on Employee Misconduct: Types, Examples helping to distinguish severity levels.

Tribunals test your view of gross misconduct against what a “reasonable employer” might do. Under section 98(4) of the Employment Rights Act 1996, they ask whether you acted reasonably in treating that conduct as a fair reason to dismiss. Even if any outsider would call the behaviour gross misconduct, you still need a fair process. The law also accepts that you act on a reasonable belief, not absolute proof — which links directly to the Burchell Test, covered in the next section.

Section 98(4) ERA 1996 asks tribunals to consider “whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably... having regard to equity and the substantial merits of the case.”

The Legal Foundation: Contract Law Meets Employment Rights

Whenever you dismiss for gross misconduct, two legal tracks run at the same time: contract law and statutory employment rights. You need to be ready on both.

From a contract law angle, gross misconduct is a repudiatory breach. Every employment contract carries an implied term of mutual trust and confidence. Serious dishonesty, violence, or reckless behaviour that puts others at risk can all destroy that trust. When that happens, you are entitled to say the contract has ended, without giving contractual or statutory notice. That is how you defend a wrongful dismissal claim.

Wrongful dismissal is a simple breach of contract claim. There is no minimum service requirement. If a tribunal decides the conduct was not bad enough to be gross misconduct, then ending the contract without notice is a breach. You would then owe the employee what they would have earned during their notice period, plus any other contractual benefits.

The second track is unfair dismissal, under the Employment Rights Act 1996. This right usually needs two years’ service. Here, the tribunal looks at both your reason and your process. Even if the behaviour was gross misconduct, you can still lose if your procedure was unfair.

So you might win on the contract point (no notice pay due) but lose on the unfair dismissal point (compensation for loss of earnings). With rising compensation caps in 2025, that mix can be very expensive. This “double exposure” is why gross misconduct cases feel hard: you must show both that the conduct justified summary dismissal and that the way you reached that decision was fair.

Why "Summary" Doesn't Mean "Instant" Dismissal

The term summary dismissal trips up many employers. It sounds like you can fire someone on the spot as soon as you discover gross misconduct. That is not how UK law works.

Summary dismissal simply means you end the employment without a notice period and without payment in lieu of notice. It says nothing about how fast the disciplinary process should be. You still need a fair investigation, a hearing, and an appeal stage before you press the button on dismissal.

The temptation to act instantly is strongest with dramatic behaviour. You may see an employee hitting a colleague, taking cash from a till, or posting deeply offensive material in a work WhatsApp group. In that moment, every instinct says “they are finished.” If you send them home and issue a dismissal letter on the spot, you almost guarantee an unfair dismissal finding, even if the tribunal agrees the behaviour was gross misconduct.

A fair process usually follows this order:

1. allegation
2. possible suspension on full pay
3. investigation
4. disciplinary hearing
5. decision
6. appeal.

That sequence still applies when you are dealing with gross misconduct and planning summary dismissal. The timing can be fast if you act promptly and keep things moving, but you cannot skip steps.

The ACAS Code of Practice backs this up. Tribunals must take the Code into account. If you ignore it — for example, by failing to offer an appeal — any compensation award can increase by up to 25 percent.

A useful mental check is this: could I explain each step of my process to a tribunal, in order, on one sheet of paper? If the answer is “no”, the process still needs work.

The 2025 case Impact Recruitment Services Ltd v Ms I Korpysa [2025] EAT 22 underlines this point. The EAT accepted that an employer can hold a genuine but mistaken belief and still dismiss fairly, but only if the process and investigation were reasonable. The label “summary” does not excuse a rushed or biased procedure. It only describes the lack of notice once you have finished that process.

The Burchell Test: Your Legal Safety Net for 2025 Dismissals

If you remember one legal tool for gross misconduct dismissals, make it the Burchell Test. Since the case of British Home Stores Ltd v Burchell in 1978, tribunals have used this three‑part test to decide whether a conduct dismissal was fair.

The test asks three linked questions:

1. Did you honestly believe the employee committed the misconduct?
2. Did you have reasonable grounds for that belief?
3. Did you reach that belief after a reasonable investigation?

Tribunals also apply the “band of reasonable responses” test alongside Burchell. They do not ask what they would have done in your place. They ask whether your decision to dismiss fell within the range of responses that a reasonable employer might choose in those circumstances. That gives you some breathing room, but only if you can show you followed a fair process and thought carefully about your decision.

A practical way to think about unfair dismissal is: tribunals do not look for perfection; they look for a decision that a reasonable employer could have made on the evidence available at the time.

In 2025, recent EAT decisions have not replaced Burchell; they have sharpened how it is applied. Cases like Korpysa, Moussa, and Sritharan focus on how genuine belief, impartial investigations, and institutional attitudes play into your case. Litigated follows these rulings closely and breaks them down into plain‑English guidance, which helps you line up your procedures with what tribunals now expect.

If you can show that each part of the Burchell Test is satisfied — and you record your thinking clearly — your chances of defending a gross misconduct dismissal rise sharply.

Element 1 - Establishing Genuine Belief

The first limb of Burchell is genuine belief. The decision‑maker must honestly believe that the employee carried out the misconduct you rely on. This is a subjective question: what did that person genuinely think at the time of dismissal?

You show this belief through your documents. Investigation notes, emails, the disciplinary hearing record, and the outcome letter should all point in the same direction. They should make clear what facts you accepted, which allegations you found proved, and why. If those records show doubt or confusion, it becomes harder to argue that you held a firm belief.

A common error is letting someone sign the dismissal letter who was not really the decision‑maker, or who has not read all the evidence. The person who makes the decision has to hold the belief. That means they must engage with the evidence, ask questions, and weigh what they have heard.

In Korpysa, the EAT confirmed that your belief can even turn out to be mistaken and still be fair, as long as it was genuine and reached reasonably. That is good news for you, but only if your paperwork backs it up. Clear wording in the outcome letter, such as “Having considered all the evidence, I find on the balance of probabilities that…” helps to show your honest conclusion at the time.

Element 2 - Reasonable Grounds for That Belief

A genuine belief is not enough on its own. The second limb of Burchell asks whether you had reasonable grounds for that belief. You do not need proof beyond doubt, but you do need more than rumour or personal dislike.

Reasonable grounds usually come from a mix of evidence. This might include:

• CCTV footage
• clear witness statements
• email trails and IT logs
• financial records
• an admission from the employee.

The stronger the mix, the safer your position. A gross misconduct case for theft backed by video footage, stock records, access logs, and an admission is far stronger than one based on one person’s vague suspicion.

Tribunals look at both the quality and the range of your evidence. Relying only on one uncorroborated witness, especially where that person may have a motive to lie, is risky. In those cases, you must show you thought hard about reliability. Did the witness have a clear view? Are their accounts consistent over time? Do other facts support or contradict them?

By 2025, tribunals show more interest in this quality question. They expect you to explain why you preferred one version of events over another. If your reasoning is clear and you have some solid evidence behind you, your “reasonable grounds” argument is far stronger, even where the facts were messy.

Element 3 - Conducting a Reasonable Investigation

The third limb — reasonable investigation — is where many employers fall down. Tribunals do not expect you to investigate like the police, but they do expect a fair, balanced, and timely process.

A reasonable investigation for gross misconduct usually includes several steps. You should:

• speak to the employee accused of wrongdoing and set out the concerns in clear terms
• interview any witnesses who may have seen or heard relevant events
• gather documents, CCTV, emails, or IT logs that can support or challenge the allegation
• consider the employee’s explanations and check whether they line up with other evidence.

Proportionality matters here. A complex fraud allegation justifies a deeper, longer investigation than a fight on the shop floor that several people saw clearly. However, even in simple cases you still need some investigation. Dismissing someone for assault without ever asking them what happened, or without speaking to key witnesses, will usually fail the Burchell Test.

Recent cases such as First Greater Western Ltd v Moussa [2024] EAT 82 stress impartiality. The investigation must not be steered by “institutional memory” or a long‑held negative view of the employee. If the business has history with the person — whistleblowing, grievances, or clashes with managers — that makes separation of roles even more important.

A short investigation report that explains what you looked at, why you stopped at that point, and why you concluded there was a case to answer can make a real difference. It shows the tribunal you thought about scope and fairness, not just the outcome you wanted.

Category-by-Category Analysis: When Summary Dismissal Is Safe in 2025

Not every act of gross misconduct carries the same legal risk when you dismiss. Some categories, like theft or serious violence, are usually easier to defend. Others, such as harassment or alleged bullying, come with more shades of grey.

It is helpful to think in terms of relative risk. Some types of behaviour are so clearly against basic standards that tribunals rarely question whether dismissal was within the “band of reasonable responses,” as long as your procedure is fair. Others are more context‑driven, where you need extra care in both your investigation and your reasoning.

The sections below walk through the main categories where employers often consider summary dismissal. In each, the same rule applies: even where the behaviour screams gross misconduct, you still need a proper process. What changes is how easily you can justify dismissal as a proportionate response.

Quick reference: typical gross misconduct categories

Theft and Dishonesty: The Classic "Safe" Cases (When Proven)

Theft and serious dishonesty sit at the centre of gross misconduct. They are usually lower‑risk grounds for summary dismissal because they strike directly at the trust you must have in any employee. If you cannot trust someone to be honest with money, property, data, or time, it is hard to keep them in almost any role.

Theft in the workplace covers a wide range of behaviour. It may be:

• taking cash from a till
• removing stock without paying
• using a fuel card for personal trips
• copying client data before leaving for a competitor
• falsifying timesheets or clocking in for someone else
• submitting knowingly false expenses
• lying about qualifications or history in recruitment documents.

For these cases to feel “safe” from a legal point of view, you need strong evidence. That might be clear CCTV footage, stock or cash records that line up with access logs, an audit trail in your finance system, or system logs showing data downloads at suspicious times. A written admission from the employee is powerful, though you should still explore the full context during your investigation.

Common mistakes include jumping to conclusions on weak evidence or dismissing an innocent explanation too quickly. For example, dismissing someone for theft of low‑value food where the culture has long been relaxed about staff taking leftovers is risky. Likewise, an honest mistake on an expenses form is very different from a pattern of false claims. Mitigating factors such as long service, personal crisis, or very low value items may push you towards a final written warning instead of dismissal.

By 2025, data theft has become a frequent feature in gross misconduct cases. Tribunals expect to see IT logs, access records, and clear policy documents showing that staff understood what they were and were not allowed to do with data. Police involvement can support your case but does not replace your duty to investigate and apply the Burchell Test yourself.

Violence and Physical Assault: Zero-Tolerance Territory

Violence at work is normally treated as serious gross misconduct. You have a legal duty to provide a safe workplace, and physical assault or serious threats cut straight through that duty. For most employers, a clear act of violence will sit firmly in “zero‑tolerance” territory.

This category includes hitting, kicking, or pushing colleagues, managers, clients, or members of the public. It also includes serious threats of violence and behaviour that makes others fear for their safety, such as brandishing objects in a threatening way. Fights between colleagues, even where both took part, nearly always raise the question of dismissal for one or both.

However, you still need to investigate, even if the incident was seen by several people. Witnesses may have different views of who started it, how far it went, or whether there was an element of self‑defence. You should collect written statements from everyone involved, review CCTV if it exists, and record any medical reports if injuries occurred. The employee’s account may raise claims of provocation, bullying, or a sudden mental health crisis.

Context matters. A brief push during a heated argument is not the same as a sustained attack. Horseplay that gets out of hand may still be misconduct, but dismissal may be too harsh if no one was hurt and both took part. Claims of genuine self‑defence need serious thought. If your findings show clear, deliberate violence without strong mitigation, summary dismissal is usually well within the band of reasonable responses.

Consistency is vital. If you dismiss one person in a fight but keep the other with only a warning, you must be able to justify that difference. In 2025, tribunals often ask why each person received the outcome they did, especially where protected characteristics or past complaints are involved.

Serious Health and Safety Breaches: Context Is Critical

Serious health and safety breaches can be gross misconduct, especially where they create a real risk of serious injury or death. Under the Health and Safety at Work etc. Act 1974, you must protect your staff and others from foreseeable harm. When an employee knowingly ignores safety rules, you are under strong pressure to act firmly.

Examples of dismissible safety breaches include:

• disabling or bypassing safety guards on machinery
• working at height without fall protection after clear training
• ignoring lockout procedures on dangerous equipment
• working while intoxicated in a safety‑critical role
• ignoring infection‑control rules in health or social care
• leaving vulnerable people unattended when supervision is essential.

However, not every safety lapse justifies summary dismissal. Forgetting personal protective equipment once, misunderstanding a complicated written procedure, or minor shortcuts that carry little real risk are more suited to training and warnings. Tribunals look closely at whether the employee had clear training, understood the rule, and appreciated the risk.

Your evidence should show you had a clear, communicated safety policy. Training records, signed acknowledgements of rules, risk assessments, and previous safety briefings all help. You should record exactly what happened, who saw it, what risk it created, and whether this was a repeat issue. A safety breach by a health and safety officer or supervisor will usually be treated more seriously than the same breach by a new starter who never received proper instruction.

In 2025, some safety rules carry extra weight, such as infection‑control in health or social care settings. Even so, dismissal for gross misconduct must stay proportionate. If similar breaches previously resulted only in warnings, you must explain why you chose a harsher line this time. Otherwise, you risk a tribunal viewing the dismissal as inconsistent and therefore unfair.

Discrimination and Harassment: Navigating Complex Territory

Discrimination and harassment cases sit in a harder space. The Equality Act 2010 makes you responsible for harassment related to protected characteristics such as race, sex, disability, age, and others. That often pushes you towards strong action. At the same time, these cases can be subtle, emotionally charged, and sometimes based on one person’s word against another’s.

Harassment as gross misconduct covers behaviour that seriously violates someone’s dignity or creates an offensive, humiliating, or hostile environment. That might be overt racist or sexist abuse, serious sexual harassment, or a pattern of bullying based on protected characteristics. A single serious incident — such as a sexual assault or a very serious slur — can justify summary dismissal. A repeated pattern of “banter” that crosses lines after warnings can also move into dismissal territory.

Investigations in this area are often tricky. There may be no physical evidence, and staff may be nervous about giving statements. You need to speak to everyone involved, allow the complainant to explain the impact of the behaviour, and ask the accused employee to respond fully. Consistency of accounts, presence of witnesses, and any past complaints may all form part of your reasoning.

Common pitfalls include brushing behaviour off as “just banter”, failing to interview key witnesses, or treating the complainant harshly for raising concerns. Case law in 2025, such as Mrs B. Sritharan v Deloitte LLP & Mr P. Gooch [2025] EAT 5, shows tribunals watching closely for “institutional memory” where past complaints colour current decisions. You must show that your gross misconduct decision is based on the facts of the current case, not irritation with someone who has raised issues before.

Dismissal will often be fair where there is clear, serious harassment, particularly by managers or repeat offenders. For one‑off, less severe comments, a final written warning with training and monitoring may be a safer and more proportionate step.

Intoxication at Work: When It's Clear-Cut vs. When It's Not

Alcohol and drugs at work sit at the border between clear danger and real human difficulty. Being intoxicated at work, especially in safety‑critical roles, is often treated as gross misconduct. But when addiction and disability issues are in play, the legal picture becomes more complicated.

Clear‑cut gross misconduct cases include a driver found over the limit while on duty, a machine operator using heavy equipment while drunk, or a nurse administering medication while under the influence. Possessing or dealing illegal drugs on site is also normally a strong ground for summary dismissal. In these situations, the safety risk is immediate and serious.

Evidence might include breathalyser or drug test results (under a clear policy), detailed witness observations of slurred speech or unsteady behaviour, CCTV, or records of a safety incident linked to intoxication. An admission from the employee is helpful but you should still set out the full facts in your investigation.

The picture is more complex where the role is desk‑based, the incident is one‑off, or there are signs of addiction. Long‑term alcoholism or drug dependency can be a disability under the Equality Act 2010, especially where it causes a long‑term impact on normal day‑to‑day activities. If you know, or reasonably should know, that dependency is present, you must think about support and reasonable adjustments before leaping to dismissal.

In practice, that might mean referring the employee to occupational health, allowing time off for treatment, or adjusting duties for a period. If, after genuine support, the employee continues to arrive intoxicated or causes safety incidents, dismissal may still be justified. By 2025, tribunals look closely at whether you considered the disability angle and offered some form of help where possible.

A clear alcohol and drugs policy helps greatly. It should spell out that being under the influence at work is serious misconduct or gross misconduct, set out when testing may happen, and explain what support routes are available. Without that framework, summary dismissal for a first offence in a low‑risk role carries far greater risk.

The Ironclad Procedure: Your Step-by-Step 2025 Compliance Roadmap

No matter how strong your gross misconduct case looks, your procedure is where tribunal claims are usually won or lost. Many unfair dismissal findings arise not because the conduct was judged acceptable, but because the employer cut corners on process.

Think of your procedure as a simple but strict roadmap. You start with an allegation and end with either dismissal, a warning, or no action. In between, you have to act fairly, move promptly, and keep written records. The ACAS Code of Practice gives the backbone of this process, and recent cases tell you how tribunals expect it to work in real life.

The stages below give you a practical compliance roadmap for 2025. If you follow them, and document what you do, you will be far better placed to defend any summary dismissal linked to gross misconduct.

One helpful rule of thumb: the more serious the allegation, the more carefully you should be able to explain each procedural step in writing.

Stage 1 - Immediate Response and Suspension

When a serious allegation first reaches you, your actions in the first hours and days matter. You need to protect people and evidence without jumping ahead to a verdict.

Your first priority is to secure the situation. That may mean:

• separating those involved in a fight
• switching off an employee’s access to systems after a suspected data breach
• locking away stock while you take an initial count.

Where you can, record short, factual notes from people who saw what happened, while memories are still fresh.

Next, you decide whether to suspend. Suspension should be on full pay and treated as a neutral act, not a punishment. You might suspend where there is:

• a risk of repeat misconduct
• a clear risk to others
• a chance the employee might interfere with evidence.

You should not suspend just because the allegation sounds serious; think about whether there is a real need.

When you suspend, meet the employee if possible, explain that no decision has been made, and confirm that normal pay continues. Follow up in writing, setting out the basic allegation, the neutral nature of suspension, any contact restrictions, and any rules on IT access during this period. Keep the suspension as short as you reasonably can, reviewing it if the investigation drags on.

Remote and hybrid working raise extra points in 2025. You may need to suspend access to email, cloud systems, or messaging tools, not just the physical workplace. Whatever you do, keep clear records. A thoughtful, measured first response helps show a tribunal that you acted fairly from the start.

Stage 2 - Conducting a Thorough Investigation

Once the dust has settled, you move into investigation mode. This stage is about gathering facts, not proving guilt. For gross misconduct decisions, a fair investigation is essential to meet the Burchell Test and the ACAS Code.

Start by appointing an investigator who is not the likely decision‑maker at the hearing, and ensure they understand How to Document Employee matters properly from the outset. In a small business, that may be hard, but even a partial separation of roles helps. Set out the scope of the investigation in writing: what incident, what time period, and which policies might be involved.

A sound investigation will usually:

• interview the employee accused of gross misconduct at an early stage
• speak to key witnesses and take signed, dated statements
• gather physical and digital evidence such as emails, documents, clocking‑in records, IT logs, CCTV, or telephone recordings
• review the policies the employee was expected to follow, along with any training records that show these were explained.

Explain to the employee that this is an investigation, not a disciplinary hearing. Outline the allegation in plain language and give them a chance to respond and suggest witnesses or documents. There is no legal right to a companion at this stage, but for serious allegations it is often wise to allow one to keep things fair.

At the end, the investigator should prepare a short report. It should summarise what was done, list the evidence, and state whether there is a case to answer at a disciplinary hearing. It should not recommend dismissal; that decision belongs in the hearing. Try to complete this stage within ten to fifteen working days where possible. Case law such as Moussa reminds you that investigations must be impartial and free from organisational bias, which is easier to show when your report is clear and factual.

Stage 3 - The Disciplinary Hearing

If the investigation shows a case to answer, the next step is a formal disciplinary hearing. This is where the employee can respond fully to the gross misconduct allegation before any decision is made.

Begin with a written invitation letter. It should:

• describe the specific allegations
• state that the matter will be heard as potential gross misconduct
• warn that summary dismissal is a possible outcome
• give reasonable notice — five working days is a sensible minimum for serious cases
• confirm the employee’s right to be accompanied by a colleague or trade union representative
• enclose all evidence you plan to rely on, including the investigation report and witness statements.

At the hearing, the chair should be someone different from the investigator, and senior enough to make the decision. Start by explaining the purpose of the meeting and checking that the employee understands the allegations. A manager or HR representative can then present the case, walking through the evidence in an organised way.

The employee and their companion must have a real chance to respond. They should be able to challenge the evidence, put forward their own documents or witnesses, and explain any mitigating factors such as health issues, personal stress, or provocation. The companion can speak, ask questions, and summarise, but the employee should still answer questions in their own words.

Take detailed notes, and if new issues emerge that need more investigation, adjourn the hearing rather than deciding on the spot. When all points have been covered, adjourn again to make your decision. Never announce a dismissal without at least a short break to think and check your reasoning against the Burchell Test.

Stage 4 - Communicating the Decision and Enabling Appeal

After the disciplinary hearing, you need to make and communicate a clear decision. For gross misconduct cases, this usually means deciding between summary dismissal, a final written warning, or no formal action.

Once you have reached your decision, set it out in a detailed outcome letter, ideally within two or three working days. The letter should:

• state which allegations you found proved
• explain what evidence you relied on
• say why you decided that the conduct amounted to gross misconduct
• explain why any mitigating factors did not change the outcome
• justify why dismissal, rather than a warning or demotion, was a proportionate response.

If you are dismissing, make clear that this is summary dismissal for gross misconduct, with no notice or payment in lieu of notice. Confirm that the employee will still receive pay for work done and accrued but untaken holiday. Give the exact termination date and explain any practical steps, such as the return of equipment or final payslip arrangements.

The letter must also explain the right of appeal. Set a clear deadline, usually five working days, and give the name or role of the person who will hear the appeal. The appeal should go to someone more senior and uninvolved with the earlier stages, to keep the process fair.

At the appeal hearing, follow a similar structure to the original hearing. Consider whether to review the decision or rehear the case from scratch, depending on the grounds raised. Afterward, send a final appeal decision letter, which confirms whether you uphold or change the outcome and gives reasons. Denying an appeal, or handling it weakly, is one of the most common reasons tribunals find otherwise strong gross misconduct dismissals unfair.

Red Flag Scenarios: When Summary Dismissal Becomes High-Risk

Some gross misconduct situations require more than your standard level of care. These are the cases where summary dismissal may still be possible, but the legal risk climbs, and tribunals expect to see especially careful reasoning.

The sections below highlight three red‑flag scenarios. In each, you should pause, check your process, and often seek legal or specialist HR advice. Litigated’s case analyses are particularly useful here, as they show how tribunals reacted to similar fact patterns and what tipped cases one way or the other.

Long-Serving Employees and Previously Unblemished Records

Dismissing a long‑serving employee for a first instance of gross misconduct can be legally and morally hard. Tribunals place real weight on long service and a clean disciplinary record. These factors do not block dismissal, but they are serious mitigation that you must discuss and record.

When you consider dismissal, ask yourself whether the misconduct is so serious that trust truly cannot be rebuilt. For example, a one‑off act of serious violence, a large‑scale fraud, or a deliberate data theft may still justify summary dismissal, even after twenty years of service. Roles in finance, care, or senior leadership often carry higher trust expectations, so breaches there may outweigh even very long good service.

Your outcome letter should show that you actively thought about length of service and past good conduct. Explain that you weighed these points in the employee’s favour, but decided that the breach of trust or risk created was too severe to ignore. Simply ignoring long service, or failing to mention it at all, makes it much easier for a tribunal to say the dismissal was outside the band of reasonable responses.

Sometimes, a final written warning, demotion, or transfer may be a better option. This is more likely where the misconduct, while serious, did not involve dishonesty or danger, and where the employee shows genuine remorse and insight. In 2025, tribunals are increasingly asking employers, “Why was a warning not enough here, given this record?” You do not have to accept that suggestion, but you do have to answer it in your reasoning.

Protected Characteristics and Discrimination Risks

Any gross misconduct case that overlaps with protected characteristics or complaints about discrimination carries higher risk. Here, the concern is not only unfair dismissal but also claims under the Equality Act 2010 for discrimination or victimisation, where compensation is unlimited.

High‑risk scenarios include dismissing someone shortly after they have raised a grievance about discrimination, whistleblown on wrongdoing, returned from maternity leave, or requested adjustments for a disability. Another warning sign is where people from different backgrounds have been punished differently for similar misconduct.

In these cases, tribunals may apply a “burden shift”. If the employee can point to facts suggesting discrimination played a part, you must show that it did not. That means you need clear, consistent evidence that you have treated similar cases alike, regardless of sex, race, age, disability, or other protected traits.

Risk management here involves several steps. Check how you handled past cases of similar gross misconduct. If you gave a warning then, why is this case different now? Separate any outstanding grievance or whistleblowing process from the disciplinary case, so that it does not look like you are punishing someone for speaking up. Where disability may be relevant, think about whether reasonable adjustments or support might prevent a repeat incident.

Cases like Sritharan v Deloitte LLP [2025] EAT 5 and Moussa show tribunals are alert to “institutional memory”, where an organisation’s past irritation with a “troublemaker” silently shapes decisions. Using independent decision‑makers, who are not entangled in past disputes, and recording your non‑discriminatory reasoning in detail are key protections.

Disputed Facts and "He Said, She Said" Situations

Some gross misconduct allegations come down to one person’s word against another’s. There may be no CCTV, no neutral witnesses, and no documents. These “he said, she said” cases are common with harassment, bullying, and some forms of misconduct outside work.

You can still dismiss fairly in such cases, but the bar is higher. Your investigation and reasoning must show that you did not simply accept one story because it suited you. Instead, you need to analyse how believable each version is, how consistent the accounts are, and any small pieces of supporting evidence on both sides.

This may involve interviewing key witnesses more than once, asking detailed questions about timing, place, and sequence, and checking whether phone records, emails, or social media posts support one account more than the other. You should record why you found one version more convincing. That might be because it stayed consistent over time, was supported by another witness, or matched physical evidence.

Dismissal is more defensible where several factors lean one way, even if not all evidence is clear. It is very risky where the accounts are equally plausible, there is no supporting evidence either way, and your notes show that the investigator struggled to form a view. In that situation, it may be safer to stop short of dismissal, or to use a lesser sanction that does not rely on a firm finding of guilt.

By 2025, tribunals pay close attention to whether you truly wrestled with these questions about whose account was more reliable. They expect to see more than “we believed X rather than Y.” If your notes show you took these questions seriously, and your conclusion is reasonable on the balance of probabilities, you are far better placed to defend a dismissal.

2025 Legal Updates: What's Changed and What's Coming

The legal principles around gross misconduct have been stable for years, but each year brings new cases that tweak how those principles apply. In 2025, several Employment Appeal Tribunal decisions stand out for employers facing summary dismissal decisions.

Litigated tracks these rulings in real time and explains what they mean for businesses and employees. That steady flow of analysis helps you adjust policies and processes before a tribunal points out your gaps. Below are the key updates for 2025, with practical takeaways you can use straight away.

Key 2025 EAT Rulings Affecting Gross Misconduct Cases

Impact Recruitment Services Ltd v Ms I Korpysa [2025] EAT 22 is a headline case for 2025. The employer believed, wrongly but genuinely, that the employee had resigned. The EAT confirmed that a genuine but mistaken belief can still be a fair reason for dismissal, as long as that belief was reached reasonably. For gross misconduct, this strengthens your position if you act on evidence that later turns out to be incomplete, provided your investigation at the time was thorough and solid.

The key message from Korpysa is that tribunals focus less on whether you reached the “right” answer, and more on whether you followed a fair process and formed a reasonable belief at the time. Your dismissal and appeal letters should make that reasoning visible, rather than claiming absolute certainty where the facts were disputed.

In Mrs B. Sritharan v Deloitte LLP & Mr P. Gooch [2025] EAT 5, the EAT looked at victimisation and how an employer’s “collective memory” of someone’s past complaints can taint later decisions. The case warns you that decision‑makers must judge the current gross misconduct allegation on its own facts, without being influenced by irritation at prior grievances or whistleblowing. For safety, use managers who were not involved in past complaints, and keep old issues out of your reasoning unless they are part of a formal disciplinary record.

First Greater Western Ltd v Moussa [2024] EAT 82, although decided in 2024, continues to shape 2025 practice. It highlights how “institutional bias” can creep into investigations and hearings even where individual managers think they are acting fairly. For you, it reinforces the need for impartial investigators, clear separation of roles, and written explanations that show you made up your mind based on the evidence, not workplace gossip or long‑standing dislike.

Together, these cases push employers towards better documentation, more independent decision‑making, and a stronger link between evidence and outcome in gross misconduct cases.

Emerging Changes: Right to Switch Off and Enhanced Compensation

Alongside case law, wider policy changes in 2025 also affect how you handle misconduct and discipline.

A proposed ACAS Code on the “right to switch off” aims to guide employers and staff on contact outside normal working hours. While not law yet, it may influence how tribunals view cases involving out‑of‑hours conduct or expectations around constant availability. For example, disciplinary action against someone for not answering late‑night messages could look harsher where you have never set clear rules about contact outside working time.

Increases to the compensation cap for unfair dismissal also raise the stakes. The compensatory award is now capped at the lower of 52 weeks’ pay or a higher statutory figure, which rises each year. When you add uncapped discrimination awards on top, the cost of mishandling a gross misconduct dismissal can be very high.

Post‑pandemic, tribunals pay extra attention to mental health and hybrid working. Misconduct that happens at home, on work systems, or in mixed personal/work channels (such as WhatsApp groups) needs careful context. You should review and update your policies to cover remote conduct, device use, and work‑related messaging outside standard hours.

Litigated follows these developments and turns them into short, practical updates you can act on. Regularly checking that guidance gives you an early warning system, so you can adjust your disciplinary policies and training before small errors turn into tribunal disputes.

Documentation and Evidence: Building Your Bulletproof Case

In tribunal hearings over gross misconduct, paperwork often matters as much as witness evidence, particularly when tribunals examine whether proper procedures around How to Document Employee issues were followed throughout the disciplinary process. Judges and panel members rely heavily on what you wrote at the time to decide whether you acted fairly. If it is not documented, it is usually treated as if it never happened.

Good documentation has two main roles. First, it helps you make better decisions in real time, because you can see the steps you have taken and the gaps still to fill. Second, it becomes your record in any later claim for unfair dismissal, wrongful dismissal, or discrimination.

Below is a practical checklist of the key records you should build and keep for every gross misconduct case. Each group of documents helps you prove parts of the Burchell Test and your compliance with the ACAS Code.

1. Investigation Phase Records
   • Create a short document that sets out the scope of the investigation. This can be as simple as a note naming the allegation, the time frame, and any linked policies.
   • Keep every witness statement, signed and dated, plus your notes from each investigatory meeting. These records show that you spoke to the right people and did not cherry‑pick evidence.
   • Maintain an evidence log listing every item you considered, such as CCTV clips, emails, IT logs, stock counts, or call recordings. For each, note where it came from and what it shows.
   • Add the employee’s own investigatory interview notes, with their explanations recorded fairly.
   • Finish with an investigation report that summarises the facts, explains what was and was not looked at, and states whether there is a case to answer at a disciplinary hearing.
2. Hearing Phase Records
   • Your starting point is the invitation letter, which should clearly list allegations, refer to possible gross misconduct, and enclose the supporting evidence.
   • Keep proof that the employee received this letter and documents in good time, such as email receipts or notes of hand delivery. These help you show that the employee had a real chance to prepare.
   • During the hearing, take detailed notes of what everyone says, including key questions and the employee’s answers. Record when and why you adjourned, especially if you paused to collect more evidence.
   • After the hearing, keep your decision‑making notes. These should walk through the Burchell Test, explain which facts you accepted, and record how you weighed mitigation.
   • Finish this phase with a detailed outcome letter that explains your reasoning in clear language, not vague conclusions.
3. Appeal Phase Records
   • If the employee appeals, keep their appeal letter or email, which sets out their grounds. This document often shapes what a tribunal will later focus on, so it is important evidence.
   • Record who heard the appeal and why that person was independent of the earlier stages.
   • Take careful notes during the appeal hearing, including any new evidence or arguments.
   • Prepare an appeal outcome letter that confirms whether you uphold or change the original decision and why. This letter is a key part of showing the tribunal that you offered and delivered a genuine second look at the case.
4. Background Policies and Training Evidence
   • Keep copies of the policies and training materials that sit behind your gross misconduct decision. This might include your disciplinary policy, code of conduct, equality policy, health and safety rules, IT and data policies, and any substance misuse procedures.
   • Add proof that the employee received or had access to these documents, such as signed acknowledgements or induction checklists.
   • Where training is relevant — for example, in safety, harassment, or data protection cases — keep attendance records and slides or handouts. This helps you show that the employee knew the rules they broke. It also supports your defence if the case includes discrimination claims, because you can show that you took reasonable steps to prevent bad behaviour at work.

Taken together, these records turn your account of events into a structured, persuasive narrative. They show that you treated the allegation of gross misconduct seriously, followed a fair process, and reached a reasoned decision based on the information you had at the time.

Conclusion

Handling gross misconduct in 2025 is about more than spotting serious behaviour. It is about combining a clear sense of when trust has been broken with a disciplined process that stands up in front of a tribunal. You act on a reasonable belief, not perfect proof, but you must be able to show how you reached that belief.

Summary dismissal feels attractive when an employee steals, assaults someone, or puts people at real risk. This guide has shown that even in those cases, skipping steps is where employers lose. A fair investigation, a well‑run hearing, a clear decision, and a genuine appeal are the real safeguards that make dismissal “safe” in legal terms.

You have also seen that some situations need extra care. Long‑serving staff with clean records, disputed facts, links to protected characteristics, and signs of bias all raise the risk level. In those cases, pausing to check your process — and often taking advice — is far better than rushing to a decision you may later regret.

Litigated exists to help you stay on top of these issues. By tracking cases like Korpysa, Sritharan, and Moussa, and turning them into practical guidance, Litigated gives you a clear line of sight on what tribunals expect from gross misconduct processes in the UK. With that support, you can protect your organisation, treat people fairly, and make confident decisions when it matters most.

FAQs

What Is the Difference Between Misconduct and Gross Misconduct?

Misconduct covers lesser breaches of your rules, such as lateness, minor rudeness, or small policy breaches. These usually call for warnings and a chance to improve. Gross misconduct involves behaviour so serious that it destroys trust, such as theft, serious violence, major safety breaches, or serious harassment. Gross misconduct can justify summary dismissal, but only after a fair process.

Can I Ever Dismiss Someone for Gross Misconduct on the Spot?

In practice, no. You can remove someone from the workplace straight away if there is a risk, but you still need to suspend on full pay and carry out an investigation and disciplinary process. “Summary” refers to the lack of notice, not the speed or absence of procedure. On‑the‑spot sackings almost always lead to unfair dismissal findings, even where the conduct was very serious.

Do I Have to Report Gross Misconduct to the Police?

You do not have a general legal duty to report gross misconduct to the police, though in some regulated sectors you may have extra duties. You can choose to make a report, especially in cases of theft, fraud, or serious assault. However, police involvement does not replace your need to investigate and run your own disciplinary process in line with employment law.

How Long Should a Gross Misconduct Investigation Take?

There is no fixed time limit, but the investigation should be as prompt as is reasonable in the circumstances. Straightforward cases may take a week or two. More complex allegations, such as fraud or multi‑person harassment, may take longer. What matters is that you keep moving, avoid unnecessary delays, and keep the employee updated, especially if they are suspended.

How Can Litigated Help Me Manage Gross Misconduct Cases?

Litigated focuses on UK employment law and tribunal decisions, with clear, practical analysis for employers, HR professionals, and individuals. By following Litigated’s coverage of cases like Impact Recruitment Services v Korpysa, Sritharan, and Moussa, you can update your policies, templates, and procedures in line with what tribunals expect. That support makes it easier to run fair investigations, take consistent decisions, and defend your gross misconduct dismissals if they are challenged.

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Nick

With a background in international business and a passion for technology, Nick aims to blend his diverse expertise to advocate for justice in employment and technology law.