Gross [-cery] Misconduct

The recent case of Adesokan v Sainsbury’s Supermarkets Ltd [2017] EWCA Civ 22 illustrates that successfully evidencing gross negligence may not be as difficult as previously thought.

Facts

Mr Adesokan (Mr A) was employed by Sainsbury’s (S) for over 25 years, most recently as a Regional Operations Manager (ROM).
S runs a process known as the Talkback Procedure (Talkback) which is a method of measuring staff engagement and in turn customer satisfaction. Staff provide information through Talkback, in confidence, and the information gathered is used to determine career progression, pay and bonuses etc. The process requires staff to give an honest account of their experience at work and it is therefore important that the process is not manipulated or abused.
In June 2013 S conducted a Talkback procedure in the region that Mr A managed. As part of that process the HR Partner, Mr Binder, sent an email that asked the relevant store managers to ‘…focus predominantly on getting your most enthusiastic colleagues to fill in the survey… 100% completion is less important as long as you have a completion rate above 60%... So focus on the Colleague Engagement Index questions and less on 100% completion; let us know how it goes and please do ask us for any help and guidance!’ This email was clearly in contradiction to the ethos of the Talkback procedure.
Mr A became aware of the email approximately one week later. He emailed the HR Partner asking for clarification but took no further action. Mr A did not, for example, tell senior managers or correct the HR Partner’s statement to the store managers.
When S found out about the email Mr A was disciplined on the grounds that he was accountable for Talkback in his region, he was aware that the HR Partner had told managers to manipulate the Talkback scores and failed to take adequate steps to right the wrong. S decided to dismiss Mr A was dismissed for gross negligence, which it was argued was tantamount to gross misconduct. Mr A was therefore dismissed for gross misconduct without notice.
Mr A brought a claim for breach of contract in the High Court arguing that because his actions were not dishonest he did not commit a gross misconduct and therefore the decision to dismiss him without notice was unlawful.

The High Court Judge concluded that because it was the direct responsibility of Mr A to ensure the integrity of the Talkback process, his failure to correct the email by the HR Partner called into question his willingness to protect, and his commitment to the process. A was in ‘serious dereliction’ of his own duty to the company. Mr A’s claim was therefore dismissed.

Court of Appeal

Mr A appealed the decision to the Court of Appeal arguing, in the main, that his actions were not capable, as a matter of law to amount to gross misconduct as the negligent act was not so bad as to be ‘gross’ particularly given that his actions did not cause any prejudice to the Talkback results.

The Court of Appeal disagreed.

When deciding whether the negligent dereliction of duty amounted to gross misconduct one must consider whether the actions were “so grave and weighty” to amount to a justification for summary dismissal. The Court of Appeal in this case decided that it was open to the High Court to find that Mr A’s actions met this definition because he, as ROM was responsible for ensuring that the integrity of the Talkback procedure was not being, or at risk of being, undermined. It was his duty to take steps to prevent that from happening and this duty went further than simply emailing the HR Partner to clarify what he meant.

Comment

What is clear is that where an employer views a policy or procedure as an important part of its culture, the failure by a manager who is responsible for the integrity of the procedure can amount to an omission that is sufficient to stray into the realms of gross misconduct and which may justify dismissal.

The High Court had found that Mr A had not done enough to meet his duty but not go so far as to determine what A could have done to alleviate the negligence so that it did not fall into the ‘Gross’ category. It is understandable that it did not do so as all cases ought to be determined upon their own facts. However we wonder whether the outcome would have been different if, for example, Mr A had specifically instructed the HR Partner to retract the email, and the HR Partner did not do so.

We would caution employers from running off and using this case as a tool to dismiss underperforming employees; to this end the Court of Appeal gave a warning that not all ‘failures to act’ that are contrary to, or undermine an employer’s policy, constitute a grave act of misconduct so bad as to permit dismissal without notice. Taking such action is rarely without an element of risk. Our advice is that each case must be considered on its own merit in light of the factual context.

If you have a similar issue or any other employment concern,  please contact our employment team on 0113 203 1999.