Serious or gross misconduct? Driving without a valid licence

The distinction between serious and gross misconduct is not always fully understood by employers. For example, an employee knowingly drove a company vehicle whilst aware that their driving licence was no longer valid: is this gross misconduct or serious misconduct?

To be considered a serious offence, the misconduct must be of such a nature that it makes it impossible for the employee to remain with the company, even during the period of their notice.

The degree of seriousness of the misconduct must be assessed on a case-by-case basis. The same behaviour may be regarded, depending on the circumstances, the individuals involved, etc., as minor misconduct or serious misconduct.

Gross misconduct, on the other hand, implies an intention to harm the employer. In other words, it involves the employee’s deliberate intent to cause harm to the employer.

This is the most severe of all disciplinary sanctions and can therefore only be imposed in exceptional cases.

It is not sufficient for the employee simply to commit a serious act. Even theft is not sufficient to justify gross misconduct if it is motivated by personal gain rather than a desire to harm the company.

Whether the misconduct is classified as serious or gross, in both cases the employee is dismissed immediately and loses their right to:

• To severance pay;
• To notice pay;

However, the employee retains their entitlement to compensation for paid annual leave. In the case of gross misconduct only, you may bring a claim for liability against your employee and seek damages to compensate for your loss.

Case study

The courts have ruled on the case of a lorry driver who, for one month, had been driving a company vehicle whilst his driving licence was no longer valid because he had failed to renew his medical fitness certificate. He was dismissed by his employer for serious misconduct.

The Court upheld the dismissal, finding that the employee had deliberately exposed the employer to the extremely serious consequences of driving a heavy goods vehicle without a licence (risk of criminal prosecution, impoundment of the vehicle and its load, etc.). He had failed to undergo the medical examination required for the renewal of his licence.
The judges concluded that the employee had breached his employment contract in bad faith. He was therefore ordered to pay damages to his employer.

However, the Court of Cassation quashed this decision. It reiterated that only gross negligence can give rise to the employee’s financial liability. Serious misconduct cannot result in the payment of damages for breach of contract, regardless of whether the employer has suffered serious harm.
Furthermore, for conduct to be classified as gross negligence, it must be demonstrated that there was an intention to cause harm to the employer. In this case, the judges had not identified any facts other than those referred to in the letter of dismissal that might constitute gross negligence.