Dismissed for Gross Misconduct: Your Rights Explained

If your employer dismissed you for gross misconduct, you may have two separate claims: unfair dismissal and wrongful dismissal. A tribunal decides each claim in a different way. On Friday 6 November 2026, the Employment Appeal Tribunal explained the difference in Department for Work and Pensions v Kiani [2026] EAT 168. This article explains the law on each claim, what the Employment Appeal Tribunal decided, and the time limits for making a claim.

What gross misconduct means

Gross misconduct is conduct so serious that an employer may dismiss an employee without notice. Disciplinary policies often give examples, such as theft, fraud, violence or a serious breach of data security rules. Whether conduct is gross misconduct in law depends on what the employee did, judged objectively. A label in a disciplinary policy is not conclusive.

Unfair dismissal: the legal basis

Section 94 of the Employment Rights Act 1996 gives an employee the right not to be unfairly dismissed. Under section 98(1), the employer must show the reason for the dismissal. Conduct is one of the potentially fair reasons listed in section 98(2).

Under section 98(4), the tribunal then decides whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissing the employee, taking account of the size and administrative resources of the employer. In a conduct dismissal, tribunals consider the following questions, drawn from British Home Stores Ltd v Burchell [1980] ICR 303 and later cases:

• whether the employer genuinely believed that the employee committed the misconduct.
• whether the employer had reasonable grounds for that belief.
• whether the employer had carried out as much investigation as was reasonable.
• whether dismissal fell within the band of reasonable responses open to a reasonable employer.

The tribunal must not decide the case on the sanction it would have chosen. Different reasonable employers may reach different decisions on the same facts, and a dismissal may be fair even where another employer would have given a final written warning.

For dismissals before Friday 1 January 2027, an employee usually needs two years of continuous employment to bring an ordinary unfair dismissal claim. For dismissals from Friday 1 January 2027, the government plans to reduce the qualifying period to six months.

Wrongful dismissal: a separate claim

Wrongful dismissal is a claim for breach of contract. A wrongful dismissal claim usually arises where an employer dismisses an employee without the notice due under the contract of employment or under section 86 of the Employment Rights Act 1996.

Under section 86, an employee with one month or more of continuous employment is entitled to at least one week's notice. After two years, the minimum notice is one week for each complete year of continuous employment, up to twelve weeks. Where the contract gives a longer notice period, the employee is entitled to the longer period.

Under section 86(6), either party keeps the right to treat the contract as ended without notice where the conduct of the other party allows this. An employer may therefore dismiss without notice only where the employee has committed a serious breach of contract, often called a repudiatory breach. In a wrongful dismissal claim, the tribunal decides on the evidence whether the employee committed a serious breach. The employer's belief is not enough.

No qualifying period of employment applies to a wrongful dismissal claim.

What the Employment Appeal Tribunal decided

The claimant in Kiani joined the Department for Work and Pensions in 1997 and worked as a work coach. In December 2019, she accessed her adult son's Universal Credit account on five occasions without a business reason or authorisation. She told her line manager what she had done. Under the department's information security policy, repeated access to a family member's record without a business reason was gross misconduct, and the possible outcomes were dismissal or a final written warning. She was dismissed without notice in August 2020.

The Employment Tribunal found the dismissal unfair and wrongful, ordered reinstatement, and assessed her contribution to the dismissal at 20%. The Employment Appeal Tribunal allowed the employer's appeal on all grounds.

On unfair dismissal, the Employment Appeal Tribunal held that the Employment Tribunal had stated the correct legal test but had then formed its view of the mitigation and decided what the outcome should have been. Under the employer's policy, the listed penalties were guidance only, and the Employment Tribunal had wrongly treated a final written warning as required. The Employment Tribunal had therefore substituted its view for the employer's view.

On wrongful dismissal, the Employment Appeal Tribunal held that the question is whether a serious breach of contract took place, judged objectively. Neither the description of the conduct in a disciplinary policy nor the employee's acceptance of that description is conclusive of the legal question. Mitigation may be relevant to the sanction, but mitigation does not change the nature of the conduct. The Employment Tribunal had included mitigation when deciding whether a serious breach took place, which was an error.

The Employment Appeal Tribunal also held that the Employment Tribunal had not explained why it chose a 20% reduction. The Employment Appeal Tribunal directed the parties to send written submissions on the outcome of the case.

What the judgment means for you

• In an unfair dismissal claim, the tribunal considers what your employer believed and whether your employer acted reasonably, not the sanction the tribunal would have chosen.
• Where a disciplinary policy lists more than one possible outcome, your employer has a choice, and a tribunal will consider whether the choice was reasonable.
• In a wrongful dismissal claim, the tribunal decides objectively whether you committed a serious breach of contract.
• Mitigation, such as illness, long service or an early admission, may affect the sanction but does not change what you did.

Compensation and reductions

If a tribunal finds a dismissal unfair, the tribunal may order reinstatement, re-engagement or compensation. Under sections 122(2) and 123(6) of the Employment Rights Act 1996, a tribunal may reduce the basic award and the compensatory award where the employee's conduct contributed to the dismissal. Where a fair procedure would have led to dismissal in any event, the tribunal may reduce compensation, in some cases to nothing. A finding that an employer did not follow a fair procedure does not mean that compensation will follow.

Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal may increase or reduce an award by up to 25% where the employer or the employee unreasonably failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

In a wrongful dismissal claim, damages are usually the pay and contractual benefits the employee would have received during the notice period.

An illustrative example (not a real client)

Daniel works as a warehouse supervisor. He has four years' continuous employment, a clean disciplinary record and a contract that gives him six weeks' notice. After a single disagreement with a colleague, in which neither person used threats or violence, his employer dismisses him without notice for gross misconduct.

Daniel may have two claims. In an unfair dismissal claim, the tribunal would consider the employer's investigation, the employer's belief and whether dismissal fell within the band of reasonable responses. In a wrongful dismissal claim, the tribunal would decide on the evidence whether a single disagreement without threats or violence was a serious breach of contract. If the tribunal found no serious breach, Daniel may recover damages for the six weeks' notice in his contract.

Time limits

For most claims where the dismissal took place on or after Thursday 1 October 2026, the time limit for an unfair dismissal claim is six months less one day from the effective date of termination. Where the dismissal took place before Thursday 1 October 2026, the time limit is three months less one day.

For breach of contract claims in England and Wales, the six month limit applies where the contract ended on or after Thursday 1 October 2026. In Scotland, the six month limit applies where the contract ends on or after Monday 9 November 2026.

Before making a claim, you must notify ACAS for early conciliation. ACAS early conciliation may extend the time limit. Read more in our guide to employment tribunal time limits.