Failure to act may constitute gross misconduct

31 March 2017

The Court of Appeal has recently ruled that an act of gross negligence can result in the fair summary dismissal of an employee for gross misconduct.

The Claimant, Mr Adesokan (“Mr A”) had been employed by Sainsbury’s for 26 years, most recently as Regional Operations Manager. He worked alongside Mr Briner (“Mr B”), an HR Manager. In 2013, Mr A and Mr B were to complete Sainsbury’s ‘Talkback’ staff survey and during the process, Mr B sent an email to other store managers informing them of ways in which they might be able to influence the results and ultimately present Mr A’s region in a better light. Mr B presented the email as though it was sent jointly from Mr A and himself. When he became aware of the email, Mr A instructed Mr B to clarify with the recipients what he meant in that email. However, Mr B ignored this request.

Mr A did not then check that his instruction had been carried out.

The original email was then circulated again. Mr A discovered that Mr B had not carried out his earlier request to clarify the situation with the store managers. However, Mr A again failed to take any other action or contact his superiors for guidance.

The offending email was later brought to the company’s attention. Mr A was subsequently disciplined and the Company summarily dismissed him for gross misconduct.

Mr A brought a claim for breach of contract on the basis that his actions were not capable of amounting to gross misconduct. The High Court Judge ruled that although Mr A had not been dishonest and his actions were not deliberate, his failure to take any corrective steps amounted to gross misconduct as the Company had lost trust and confidence in him as a result.

Mr A appealed the decision on the basis that he did not send the email and his failure to take any corrective action was not deliberate. Furthermore, he had 26 years of service with a clean disciplinary record and had caused his employer no harm.

The Court of Appeal disagreed, stating that, for an employee of Mr A’s standing, when ‘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 … procedure played in the culture of Sainsbury’s, he had to correct the message sent by Mr B in the email, or at least take steps to ensure that this was done. The steps he did take, requiring Mr B to clarify the situation were 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 A’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 A had not deliberately failed to act, but he was negligent in failing to act.

This principle has application to any omission which has serious implications. Schools are particularly concerned about responding to concerns about safeguarding. Schools are familiar with their duty to respond to concerns relating to the safety and welfare of pupils according to the statutory safeguarding duty and procedures set out in Keeping Children Safe in Education. It follows that failure of a member of staff to respond to safeguarding concerns appropriately has the potential to be viewed as serious or gross misconduct.

Of course, each case will turn on its own facts. Clearly the degree of trust and confidence placed upon more senior staff would be significantly greater than junior staff. While senior staff and the Designated Safeguarding Lead have enhanced training and responsibility for safeguarding matters, the safeguarding duty is the responsibility of all staff and Schools may wish to emphasise the standards of conduct required. In this case the unblemished employment record did not mitigate the employee’s omission to take steps to rectify the situation.

Schools would be wise to review disciplinary procedures to ensure they include clear, non-exhaustive, examples of conduct or circumstances which may constitute gross misconduct so as to include serious omissions/negligence.

By Ben Collingwood

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