Failing to Act Can Lead to Gross Misconduct

15 February 2017

The Court of Appeal has recently ruled that an act of gross negligence can result in the fair dismissal of an employee for gross misconduct. The Claimant, Mr Adesokan had been employed by Sainsbury’s for 26 years, most recently as Regional Operations Manager. At the relevant time, he worked alongside Mr Briner, an HR Manager. In 2013, Mr Adesokan and Mr Briner had to complete Sainsbury’s ‘Talkback’ staff survey and during the start of the process, Mr Briner sent an email to 5 other store managers informing them of ways in which they might be able to influence the results and ultimately put Mr Adesokan’s region in a good position. Mr Briner sent the email as though it was sent from both he and Mr Adesokan. When he became aware of the email, Mr Adesokan asked Mr Briner to clarify what he meant in that email with the store managers. However, Mr Briner ignored this request and Mr Adesokan did not check that it had been carried out.

The original email was then circulated again. When the survey only had a few days left, Mr Adesokan then found out that Mr Briner had not carried out his earlier request to clarify the situation with the store managers. Mr Adesokan at this point, still failed to take any action nor did he contact more senior management for guidance. Several weeks later, the offending email was brought to the attention of the Company’s CEO. Mr Adesokan was subsequently disciplined by Sainsbury’s and the Company found him guilty of gross misconduct. He was therefore dismissed immediately without notice.

Mr Adesokan brought a claim against his former employer for breach of contract but was unsuccessful. The High Court Judge ruled that although Mr Adesokan had not been dishonest and his actions were not deliberate, his failure to take any corrective steps to rectify the situation amounted to gross misconduct as Sainsbury’s had lost trust and confidence in Mr Adesokan and Sainsbury’s were therefore entitled to summarily dismiss him.

Mr Adesokan appealed the decision on the basis that his actions were not capable of amounting to gross misconduct. He did not send the email and his failure to take any corrective action was not deliberate or intentional. Furthermore, in his 26 years of service, this was his first disciplinary offence and he had caused Sainsbury’s no harm.

The Court of Appeal did not agree with Mr Adesokan. Lord Justice Elias stated that for an employee of Mr Adesokan’s standing, when he found out that the email had been sent and ‘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 it was remedied. Given the critical role which the ‘Talkback’ procedure 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 steps he did take, requiring Mr Briner to clarify the situation was not enough, or at least it was plainly insufficient once he knew that the order had been ignored and thereafter he did nothing about it.’

The Judge was therefore entitled to find that this amounted to a ‘serious dereliction’ of Mr Adesokan’s duty and that this ‘failing constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship.’ Furthermore, the Court of Appeal accepted that Mr Adesokan had not deliberately failed to act, but he was negligent in failing to act.

This is an interesting case on what amounts to gross misconduct and each case will turn on their own individual circumstances. Mr Adesokan was a senior employee and therefore the degree of trust and confidence placed upon him by Sainsbury’s would be significantly greater than a more junior colleague. It did not matter that he had an unblemished work history, he should have taken corrective steps to rectify the situation. To avoid claims being brought like the one above, employers may wish to include in their disciplinary policy clear examples of what constitutes gross misconduct and go as far as saying that acts of negligence will be classed as misconduct.

By Emily Jones

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