Labour & European Law Review Weekly Issue 511 15 March 2017
An employee may be summarily dismissed for gross misconduct where they have acted in breach of contract. In Adesokan v Sainsbury’s Supermarkets Limited, the Court of Appeal considered whether gross negligence could amount to gross misconduct justifying dismissal without notice.
Mr Adesokan, had worked for Sainsbury’s for 26 hears, he held a senior post as a Regional Operations Manager responsible for 20 stores. Sainsbury’s had a staff engagement procedure the results of which determined the level of staff engagement and which was used to set targets and influence performance setting.
In June 2013 Mr Briner a Human Resources Partner who worked alongside Mr Adeskokan sent an e-mail to five store managers under Mr Adesokan’s jurisdiction with a message which was contrary to the staff engagement procedure and could be seen as manipulating the results.
When Mr Adesokan became aware of the e-mail about a week later, he told Mr Briner to “clarify what he meant” in his email to the store managers. Mr Adesokan subsequently found out that Mr Briner had not done as he asked but he still did nothing to remedy the problem.
After the e-mail came to the attention of the CEO, Mr Adesokan’s line manager carried out a disciplinary investigation. This ultimately resulted in his summary dismissal for gross negligence which Sainsbury’s held to be tantamount to gross misconduct. Mr Adesokan claimed wrongful dismissal. The question for the court was whether he had committed gross misconduct so as to justify summary dismissal.
High Court decision
The High Court judge held that although he did not consider Mr Adesokan had been either wilful or dishonest in failing to remedy the offending email he found that he was in serious dereliction of his own duty to the company to ensure that the staff engagement was properly carried out.
The judge reasoned that Mr Adesokan either knew or ought to have known that:
- this was a breach of a core part of the company’s operating process and philosophy and that people were sacked for offending it
- that the email could potentially affect the integrity of the results and therefore the impact that that would have on measuring changes in performance and potentially also on deployment of staff
- both his and Mr Briner’s managers should have been made aware so they could consider what had been done.
The judge concluded therefore that his failure to act amounted to gross misconduct. It undermined the trust and confidence necessary for an employment relationship to such an extent that the summary dismissal was lawful. Mr Adesokan appealed arguing that gross misconduct did not stretch to include negligent acts. Nor could it be said to be a breach of procedure as he was not responsible for the procedure.
Decision of Court of Appeal
The Court of Appeal held that the question for the county court judge was whether the negligent dereliction of duty was so grave and weighty that it could justify summary dismissal. When determining whether misconduct is gross the focus is on the damage to the relationship between the parties. While dishonesty and deliberate actions which poison the relationship fall into the category of gross misconduct so does gross negligence in an appropriate case.
The Court of Appeal held that the judge was entitled to conclude that this was a case of gross misconduct, the critical feature being that as a regional manager, Mr Adesokan was responsible for ensuring the successful implementation of the engagement exercise in his region.
Given the significance placed by the company on the engagement exercise Mr Adesokan should have either corrected the message sent by Mr Briner or at least taken steps to ensure that was done. His failure to do so constituted gross misconduct because it undermined the trust and confidence in the employment relationship.
However, in reaching its decision the Court of Appeal cautioned that judges should not readily find gross misconduct where an employee had failed to act and in doing so had not intentionally decided to act contrary to or undermine the employer’s policies.
This case is very specific to its facts and employers should be wary of dismissing an employee for gross misconduct for wilful neglect of duties where there has been a one-off error of judgement.