When does Gross Negligence amount to Gross Misconduct?

Dismissal without notice

In this case the Court of Appeal have analysed what constitutes gross misconduct and whether a finding of gross negligence will also be gross misconduct.

The Law

In order to dismiss an employee without giving notice the employer must be satisfied that the employee has done something which could be classed as gross misconduct.

Case law on this point has developed over time and it is accepted that what constitutes gross misconduct will depend on the facts of the particular case. Gross misconduct can include situations where the employee has failed to act (omissions) as well as deliberate and non-deliberate acts or conduct.

The Facts

Mr Colin Adesokan had been employed by Sainsbury’s for 26 years and at the time he was dismissed he was employed as the Regional Operations Manager.

Sainsbury’s operate a process of staff surveying to measure engagement, motivation and feedback from staff, known as Talkback.

In June 2013 at the time of a Talkback process involving a number of Mr Adesokan’s stores, five store managers received an email from Mr Briner, HR Partner. The email basically tried to influence the scores of the Talkback process by urging Store Managers to ensure that employees who were engaged and positive completed the survey, rather than those who may give negative feedback. Mr Briner worked alongside Mr Adesokan, and although Mr Adesokan, had not been involved in compiling and sending the email, it appeared to have come from both Mr Briner and Mr Adesokan.

When Mr Adesokan found out about the email he urged Mr Briner to clarify the content of the email to the Store Managers, however Mr Briner did not do so and Mr Adesokan did not follow up to ensure it was done.

The CEO of Sainsbury’s was copied into the email anonymously and an investigation begun into what had happened.

Although it was accepted that Mr Adesokan was not complicit with Mr Briner he was subject to disciplinary proceedings for gross misconduct because he had failed to take any adequate steps to remedy the situation caused by Mr Briner’s email.

Mr Adesokan was dismissed for gross negligence which Sainsbury’s stated was tantamount to gross misconduct.

Mr Adesokan made a claim in the High Court arguing that his misconduct was not sufficiently serious to be gross misconduct and to justify Sainsbury’s decision to summarily dismiss him.

The Decision 

At the High Court the Judge found in favour of Sainsbury’s that Mr Adesokan’s failure to take active steps to remedy the situation caused by Mr Briner’s email was gross misconduct, Mr Adesokan appealed.

The Court of Appeal did not agree with Mr Adesokan’s appeal and upheld the original decision that Sainsbury’s were entitled to dismiss Mr Adesokan without notice for gross misconduct.

In particular, within the judgement Lord Justice Elias stated:

In my view the critical feature justifying this conclusion is that the appellant, as Regional Manager, was responsible for ensuring the successful implementation of the TP in his region. He was not the person who would carry out the exercise – that would have been the responsibility of Mr Briner – but once it became known to him that the integrity of the process was being undermined or at least was at risk of being undermined as a result of the email, it was his duty to ensure that this was remedied. Given the critical role which TP played in the culture of Sainsbury’s, he had to correct the message sent by Mr Briner in the email, or at least take steps to ensure that this was done. The step he did take, requiring Mr Briner to clarify the situation, was not enough, or at least it was plainly insufficient once he knew that this order had been ignored and thereafter he did nothing further about it.

Given the significance placed by the company on the TP, the judge was entitled to find that this was a serious dereliction of his duty. He found that this failing constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship. The appellant seems to have been indifferent to what in the company’s eyes was a very serious breach of an important procedure.”

Points to Note

This case is an interesting illustration of the degree of trust and confidence an employer can rely on with an employee. It was acknowledged by all parties that Mr Adesokan had not been responsible for the misconduct here, namely the email to store managers. However, such was the importance of the Talkback procedure and the level of trust and confidence required of Mr Adesokan that Sainsbury’s could justify their decision to dismiss him because of his failure to act.

Interestingly it was also accepted by all that Mr Adesokan had not deliberately failed to act but rather was negligent in failing to act.

In my opinion the level of trust and confidence and requirement to act in good faith would be higher for someone in a senior position, such as Mr Adesokan, and that the outcome could possibly have been different if it had involved a more junior colleague or manager.

Action to take

1. Check your internal disciplinary procedure and what it says about gross misconduct, and make sure it is fit for purpose. Although it did not effect this case, both the High Court and Court of Appeal reviewed the content in detail when analysing this case;

2. If you find you have a case involving an employee’s failure to act and you are deciding on disciplinary action seek advice before taking action;

3. Ensure that staff who are dealing with disciplinary issues have sufficient training and/or support to do so;

4. For a no obligation discussion please do not hesitate to contact me; 023 8098 2006, 01983 897003 or alison@realemploymentlawadvice.co.uk

Adesokan v Sainsbury’s Supermarkets Limited [2017] – Court of Appeal

You can read the full judgement here

 

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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