Adesokan v Sainsbury’s Supermarket Ltd [2017] EWCA Civ 22
Despite the prevalence of the term in commercial documents, particularly in clauses limiting liability, our civil law has no concept of gross negligence as distinct from simple negligence. Similarly, in an employment context, gross misconduct is not to be found in the Employment Rights Act 1996; misconduct being one of the five potentially fair reasons for dismissing an employee.
When contracts, policies and procedures mention gross misconduct, this is usually with reference to summary dismissal – immediate dismissal without notice. Gross misconduct, then, is misconduct which is so serious as to amount to repudiatory breach by the employee of the employment contract.
But how does gross negligence relate to gross misconduct? Can an employee be so negligent that their conduct amounts to a repudiatory breach and justifies summary dismissal? In Adesokan v Sainsbury’s Supermarket Ltd the Court of Appeal held that it could.
Mr Adesokan had worked for Sainsbury’s for 26 years and held a senior post, Regional Operations Manager. In June 2013, the company ran a staff engagement exercise which sought to gauge the satisfaction of all members of staff, however, its effectiveness was undermined by an e-mail sent from a HR partner to several of Mr Adesokan’s direct reports, encouraging them to only seek the views of the more committed members of staff within their stores. After an investigation, the company found that Mr Adesokan was not complicit with the HR partner; indeed, he was not initially aware of the e-mail. However, Mr Adesokan was nevertheless summarily dismissed on the basis that he became aware of the e-mail and failed to take adequate steps to rectify the situation – in the company’s belief his inaction demonstrated gross negligence tantamount to gross misconduct.
In reaching judgment, the Court considered the damage to the relationship between the parties and whether this can be sufficient to amount to gross misconduct where the conduct concerned is not dishonest or deliberate misconduct – such as gross negligence. All questions of whether certain cases of misconduct establish the right to dismiss will depend upon the facts.
Despite observing that an unintentional act, or a failure to act, ought not readily be found to constitute gross misconduct justifying summary dismissal, the Court found that the facts of this case fell within that exceptional class of misconduct, particularly given the significance placed by the company on the staff engagement exercise (which was a recurrent practice that was deeply ingrained in the company’s culture). The fact that it was accepted that the e-mail had not influenced the store managers to who it was sent, and the fact that Mr Adesokan’s inaction was not an express breach of policy or procedure, did not affect the outcome. Instead, the Court found that Mr Adesokan was guilty of a serious breach of the standards expected of him (which fell within the definiditon of gross misconduct in the Company’s Disciplinary and Appeal Policy). Accordingly, the company was entitled to summarily dismiss Mr Adesokan for gross misconduct.
Although, as stated above, whether misconduct justifies summary dismissal is a question of fact, businesses would be advised to pay attention to the definitions of gross misconduct in their disciplinary procedures and keep these under regular review based on their changing requirements and operations. Please contact the Employment Team at Jacksons Law Firm for advice and assistance with drafting, reviewing or amending employment policies or procedures, as well as training on implementing and using policies and procedures effectively.
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