In the recent case of Adesokan v Sainsbury’s Supermarkets Ltd, the Court of Appeal considered whether an employee’s one off “negligent” act could justify summary dismissal for gross misconduct.
Mr Adesokan was employed by Sainsbury’s as a regional operations manager responsible for 20 stores. Sainsbury’s operates a scheme, Talkback, a process whereby staff give information in confidence about their working environment and their relationships with management. The philosophy behind the process is to ensure that staff are engaged, motivated and take pride in their work. Mr Adesokan was responsible for the Talkback implementation in his region.
In June 2013, a HR business partner sent an email to store managers containing advice that “deliberately set out to manipulate the Talkback scores” by encouraging the managers to focus on getting their most enthusiastic colleagues to fill in the survey, rather than obtaining 100% completion from all staff. Mr Adesokan told the HR business partner to clarify what he meant by the email with the store managers, but failed to check that the HR business partner had done so and instead the offending email was circulated twice more. When Mr Adesokan became aware that the HR business partner had not done as he asked, he took no further steps. He did not contact the store managers directly to rectify the issue, nor did he alert more senior management to the issue.
Mr Adesokan was dismissed for gross misconduct and he pursued a claim for wrongful dismissal in the High Court. It is unclear why he pursued the claim in the High Court rather than the employment tribunal, although one explanation could be that damages for claims of wrongful dismissal are limited to £25,000 in the employment tribunal.
The High Court held that Mr Adesokan’s failure to take active steps to remedy the situation amounted to gross misconduct, because it undermined trust and confidence in the employment relationship.
Mr Adesokan appealed to the Court of Appeal on the basis that his “neglect” was not so serious that it could be described as “gross” and that summary dismissal for a single act of negligent wrongdoing was too harsh.
The Court of Appeal found that while courts should not readily find that a non-deliberate failure to act amounted to gross misconduct, this was an acceptable conclusion in this case given that; Mr Adesokan was responsible for ensuring the successful implementation of Talkback in his region, he understood the value that Sainsbury’s attached to a high performance culture (which was supported by Talkback) and had 26 years’ service and should therefore have been proactive in ensuring that the HR business partner had rectified the situation.
When determining whether misconduct falls within the category of gross misconduct, the question was whether the dereliction of duty was “grave and weighty”. The Court of Appeal held in this case that it was a serious dereliction of his duty and the fact no harm was actually caused was not a mitigating factor.
It is unusual for an employer to summarily dismiss an employee on the basis of “neglect of duties”, particularly where it is a one-off act. However, as this case demonstrates an employer is more likely to be able to rely on such a provision, the more serious the error and the more senior the employee. A key factor in this case was that the Talkback process was so deeply engrained in Sainsbury’s culture that it was clear that any threat to that process should have been proactively addressed.
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