by Kate Russell

Summary dismissal

Summary dismissal is dismissal without notice or pay in lieu following an act of gross misconduct. This is determined by the organisation and an employer should list acts which constitute gross misconduct in its disciplinary procedure. Gross misconduct is an act which constitutes a fundamental breach of contract by the employee and examples are given in Conduct dismissal. In a case of gross misconduct, the employer may dismiss an employee without notice but must still follow all the usual disciplinary procedures, even if the latter admits to the gross misconduct.

You must be very careful in the way you apply your procedures.


In McElroy v Cambridgeshire Community Services NHS Trust [2015], the tribunal held that a reasonable employer would not have treated arriving at work smelling of alcohol as gross misconduct in the absence of evidence suggesting an adverse effect on the employee’s ability to do his job, or the absence of a previous warning given under the employer’s disciplinary policy. Moreover, the Trust’s substance misuse policy did not create an absolute ban on consuming alcohol shortly before coming to work. In other words, turning up to work smelling of alcohol did not constitute gross misconduct.

The tribunal said that the Trust should have been more vigilant in maintaining proper standards and commented that it could not have concluded that its employee was unfit for duty based on the definition of misconduct in their policies and found that the employee had been unfairly dismissed.

This case illustrates the need for an employer in this type of situation to ensure that it follows its procedures and keeps the disciplinary process under review. In particular, you should ensure that you have policies in place and that such policies are properly adhered to. Consider what action should be taken when conduct falls below the requisite standard and take the correct disciplinary steps. Once disciplinary proceedings have started they need to be kept under review and, where a disciplinary issue is upheld, the sanction needs to be appropriate. Indeed in this case, an official warning may have been the correct course of action.

The decision in this case should encourage you to consider whether your existing policies and procedures are sufficient, particularly in relation to discipline and dismissal. The fairness of a dismissal in these circumstances will come down to the specifics, including the state of the employee, his role and health and safety concerns. And of course your policies will dictate the action you should take, so it’s worth making sure that they set out very clearly what’s not acceptable.

Holiday and Summary Dismissal

The employee is entitled to his pay to the date of the dismissal and any holiday accrued but not taken. If the contract contains a clause that allows the organisation to withhold holiday pay in the event of a dismissal for gross misconduct, it can only be withheld in respect of holiday which exceeds the statutory minimum (four weeks). 


M worked for W as a steward. He had a term in his contract that, if he was dismissed on grounds of dishonesty, then the amount of pay for holiday accrued but not taken would be nil. M was dismissed, having admitted taking money from his employers. At the time of the dismissal he had accrued 26 days’ holiday. W refused to pay this, and M brought a claim in the employment tribunal. The Working Time Regulations (WTR) state that an employee is entitled to be paid in lieu of annual leave accrued but not taken at the time their employment ends. The court decided that an agreement not to pay the minimum statutory annual leave accrued under the WTR on the termination of an employee’s contract of employment was void.