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I love this recent EAT finding in Ham v The Governing Body of Beardwood Humanities College where is was observed [15] ‘that the expression “gross misconduct” is steeped in industrial history, predating  the introduction of the statutory concept of unfair dismissal, introduced by the Industrial Relations Act 1971.  It is convenient shorthand for the old common law concept of wrongful dismissal: that is, where the employee is guilty of repudiatory conduct entitling the employer to summarily dismiss him without notice or pay in lieu thereof.  The expression does not appear in s.98 of the Employment Rights Act.’

“Employment Tribunals have a separate wrongful dismissal jurisdiction under the Extension of Jurisdiction Order 1994.  However, unfair and wrongful dismissal are separate and distinct causes of action: see Redbridge London Borough Council v Fishman [1978] ICR 569; applied in Farrant v Woodroffe School [1978] ICR 184.  A wrongful dismissal may be unfair; a fair dismissal may be wrongful.”

So, to comply with Section 98(4) employers should avoid using the outdated term of gross misconduct and use the terms “fair reason for dismissal” are …..examples of conduct !?   Not sure that will catch on but who knows.

Citation: [2014] UKEAT 0379_13_0404