Gross Misconduct Notice UK: Letter, Law & Process

At a glance

• Legal basis: the right not to be unfairly dismissed sits in section 94 of the Employment Rights Act 1996; fairness is tested under section 98.
• Conduct as a reason: conduct is one of five potentially fair reasons for dismissal listed in section 98(2), alongside capability, redundancy, statutory illegality, and "some other substantial reason".
• The reasonableness test: section 98(4) asks whether the employer acted reasonably in treating the conduct as sufficient grounds for dismissal — not just whether the conduct happened.
• The Burchell test: tribunals ask whether the employer genuinely believed the employee was guilty, on reasonable grounds, following a reasonable investigation (British Home Stores Ltd v Burchell, 1978).
• Qualifying period: currently 2 years' continuous service under section 108 ERA 1996 — falling to 6 months from 1 January 2027 under the Employment Rights Act 2025 (not yet in force; check GOV.UK). Automatically unfair dismissals need no qualifying period.
• The Acas Code: an unreasonable failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures can increase a tribunal award by up to 25% under section 207A TULRCA 1992.
• Right to be accompanied: employees have a statutory right under section 10 of the Employment Relations Act 1999 to bring a colleague or trade union representative, not a solicitor.
• Gross misconduct and notice: it can justify summary dismissal (without notice or pay in lieu), but GOV.UK is explicit that a fair procedure must still be followed even then.

What a gross misconduct notice is

A Notice of Disciplinary Meeting for gross misconduct is a written invitation from an employer to an employee, setting out allegations serious enough that dismissal without notice is a possible outcome. Gross misconduct is not defined in statute. GOV.UK describes it as behaviour that is "very serious or has very serious effects" — commonly theft, fraud, physical violence, gross negligence, or serious insubordination — but what counts in a given workplace ultimately depends on the employer's own disciplinary policy and the circumstances.

The notice itself is not a decision. It is a procedural step that follows an initial investigation and gives the employee proper warning of the case they need to answer. Under the Acas Code of Practice on Disciplinary and Grievance Procedures, the employee must be told the nature of the allegation, invited to a hearing, and given a genuine chance to respond, with the right to be accompanied. Skipping these steps can render a later dismissal unfair, even where the misconduct is clearly made out.

Conduct is one of five potentially fair reasons for dismissal set out in section 98(2) of the Employment Rights Act 1996 — the others being capability, redundancy, statutory illegality, and "some other substantial reason". Having a potentially fair reason is only the first hurdle: section 98(4) then asks whether the employer acted reasonably in treating that reason as sufficient to dismiss, judged objectively and in light of the size and resources of the employer.

The legal framework: why the process matters as much as the misconduct

The Burchell test

Since 1978, tribunals assessing a conduct dismissal under section 98(4) have applied the test set out in British Home Stores Ltd v Burchell. It asks three things: did the employer genuinely believe the employee was guilty of the misconduct; was that belief based on reasonable grounds; and did the employer carry out as much investigation into the facts as was reasonable in the circumstances. The employer does not need to prove guilt to a criminal standard, but all three limbs must be satisfied. A rushed investigation or a notice that does not fairly put the allegations to the employee can undermine the second and third limbs even where the first is not in doubt.

The qualifying period — and what is changing

To bring an ordinary unfair dismissal claim, an employee currently needs at least two years' continuous service, under section 108 of the Employment Rights Act 1996. Certain dismissals are automatically unfair regardless of length of service — for example those connected to whistleblowing, pregnancy, or asserting a statutory right — because section 108(3) exempts them from the qualifying period.

This is due to change. The Employment Rights Act 2025 will reduce the qualifying period from two years to six months, but — despite an earlier proposal for a day-one right — the government confirmed it will not be day one. Commencement regulations (the Employment Rights Act 2025 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2026) set 1 January 2027 as the date this takes effect, alongside removing the statutory cap on the compensatory award. Until that date, the two-year rule in section 108 remains the law. Always verify the current position on GOV.UK before relying on either figure, since commencement dates for employment reforms have moved before.

The Acas Code and the 25% uplift

The Acas Code of Practice on Disciplinary and Grievance Procedures sets out the minimum fair process: investigate, inform the employee of the allegation in writing, hold a meeting, allow the right to be accompanied, and offer an appeal. Following the Code is not itself a legal requirement, but under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal can increase a successful employee's compensatory award by up to 25% where the employer unreasonably failed to comply with it. The same section works both ways — a tribunal can also reduce an employee's award by up to 25% for their own unreasonable failure to follow the Code, for example refusing without good reason to attend a hearing.

What the notice must include

1. Carry out a fair investigation first. Before issuing any notice, gather the relevant facts — witness accounts, documents, CCTV or emails — and give the employee a chance to give their side informally where appropriate. The investigation should be proportionate to the seriousness of the allegation and properly documented; this is the evidence that will later support (or undermine) the Burchell test.
2. Decide whether suspension is necessary. Suspension is not automatic and should not be used as a punishment. GOV.UK guidance says it may be appropriate where there is a genuine risk to the investigation, other staff, or the business. If used, it should be on full pay, kept as short as possible, and the reasons recorded in writing.
3. Draft the notice with clear, specific allegations. The letter must set out the alleged acts of gross misconduct in enough detail for the employee to understand and respond to the case against them. Vague wording such as "unprofessional behaviour" is not enough. Reference the relevant clause of the disciplinary policy and attach any evidence the employer intends to rely on at the hearing.
4. Confirm meeting logistics and rights. Include the date, time, and location of the hearing, giving the employee reasonable notice to prepare — the Acas Code does not fix a number of days, but rushing this step is a common ground of challenge. State clearly that the meeting could result in dismissal without notice if the allegations are upheld, and confirm the statutory right under section 10 of the Employment Relations Act 1999 to be accompanied by a colleague or trade union representative.
5. Hold the hearing and communicate the outcome in writing. Chair the meeting fairly, allow the employee to put their case and ask questions, and avoid reaching a decision in the room unless it is genuinely clear-cut. Issue the outcome in writing, explaining the reasoning, the sanction (if any), and the right of appeal with a deadline for lodging it.

Worked example: a defective notice undoing a genuine case

Consider a fictional example. An employer, Meridian Logistics, dismisses a warehouse worker, Tomasz, after CCTV appears to show him removing stock without authorisation. The conduct, if proven, would clearly meet the threshold for gross misconduct. However, the notice sent to Tomasz simply states he is invited to "discuss a serious matter" the following morning, does not describe the allegation, does not mention his right to be accompanied, and the hearing goes ahead as scheduled even though Tomasz asks for more time.

At tribunal, the dismissal is found unfair — not because the CCTV evidence was doubted, but because the process failed the Burchell test and the Acas Code. The notice did not put a specific allegation to Tomasz, he was denied a fair opportunity to prepare or bring a colleague, and the investigation was not adequately documented. Because Meridian Logistics unreasonably failed to follow the Acas Code, the tribunal also applies an uplift to Tomasz's compensatory award under section 207A TULRCA 1992. The underlying conduct may have been genuine; the flawed notice and process is what made the dismissal unfair.

Common mistakes that make a dismissal unfair

• Vague allegations. A notice that does not specify what the employee is alleged to have done, and when, gives them no real opportunity to respond.
• No real investigation. Deciding the outcome before the hearing, or failing to gather evidence properly, undermines the "reasonable investigation" limb of the Burchell test.
• Rushed timelines. Giving little or no time to prepare, or scheduling the hearing before evidence has even been shared, risks being found procedurally unfair.
• Denying the right to be accompanied. Failing to mention or honour the section 10 right is both an Acas Code failure and, on its own, can support an unfair dismissal finding.
• No appeal offered. The Acas Code expects a right of appeal after any dismissal; skipping it is a further Code failure that can increase an eventual award.
• Treating suspension as automatic. Suspending as a default response, rather than a considered decision, can itself damage the employer's position.

What to do next

1. If you are an employer: do not send a gross misconduct notice until the investigation is complete and documented, and check the letter against the Acas Code checklist — specific allegations, reasonable notice of the hearing, the right to be accompanied, and a stated right of appeal.
2. If you are an employee who has received a notice: read it carefully for what is actually alleged, note the hearing date, and consider who you will ask to accompany you under section 10 of the Employment Relations Act 1999.
3. Check your service. Whether you can bring an ordinary unfair dismissal claim currently depends on having two years' continuous service under section 108 ERA 1996 — unless the reason for dismissal is one of the automatically unfair categories, which need no qualifying period.
4. Keep a written record. Whichever side you are on, keep copies of the notice, any evidence referred to, and notes of what was said at each stage — this record is what a tribunal will look at if the process is later challenged.
5. Take advice early. If the allegations are serious, disputed, or the process feels rushed, speaking to a legal adviser before the hearing — not after the dismissal — gives you the best chance of protecting your position.

This guide provides general information about how gross misconduct notices and the disciplinary process work in England and Wales. It is not legal advice and is not a substitute for advice tailored to your specific circumstances. The law described was accurate as at August 2026 and is subject to change — always check GOV.UK and legislation.gov.uk for the most current position, particularly on the qualifying period reform due from 1 January 2027.

Last reviewed: August 2026 by a non-practising solicitor · Next review due: August 2027 or on legislative change.