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Gross Negligence - Can Employees Be Disciplined for Failing to Act?

on Thursday, 22 June 2017.

Schools will always have considered taking disciplinary action against staff where an employee has failed to report safeguarding concerns or has failed to highlight any circumstance that may pose a risk or an increased risk to children.

This decision provides important guidance of how the disciplinary allegations may be framed to improve the prospects of disciplinary action being considered fair.

An Example - Adesokan v Sainsbury's Supermarkets Ltd

Mr Adesokan (Mr A) was a Regional Operations Manager responsible for 20 stores. Sainsbury's had a procedure called Talkback Procedure (TP) which is the process whereby the level of staff engagement is quantified and assessed by staff giving information in absolute confidence about their working environment and their relationships with colleagues, especially line and senior management.

The TP is deeply engrained in Sainsbury's culture and designed to ensure that staff are engaged, motivated and take pride in their work. TP also influences performance progression, target setting and pay decisions.

Mr A worked closely with an HR Business Partner (Mr B) who, in June 2013, sent out an email to five store managers under Mr A's control. The email undermined the TP and risked compromising the results. It advised store managers not to worry about obtaining a 100% completion rate and to instead target the store's most enthusiastic staff to skew the results of the feedback.

When Mr A became aware of the email, he told Mr B to clarify what he meant with the store managers, but did not follow this up. When Mr A became aware that Mr B had not acted in accordance with his instructions he still did nothing to remedy the problem, did not contact store managers himself and did not alert senior management.

Sainsbury's CEO was sent an anonymous copy of the email and an investigation was instigated. Mr A was summarily dismissed for gross negligence following a formal disciplinary procedure. He brought a claim for wrongful dismissal.

The case reached the Court of Appeal (CA), largely to consider whether an allegation of gross negligence could amount to gross misconduct and be considered a fair reason for a dismissal.

Mr A was responsible for ensuring the successful implementation of the TP in his region. Once it had become known to him that the integrity of the process was being undermined or at least was at risk of being undermined, it was his duty to ensure that this was remedied.

Given the significance that Sainsbury's placed on the TP, Mr A was in serious dereliction of his duty and this was capable of constituting gross misconduct.

How Does This Apply to a School?

It is not just acts which may be disciplined but also failures to act which may amount to a gross dereliction of duty, gross negligence and may then meet the requirements for a gross misconduct dismissal.

The CA did warn however, that "it ought not readily be found that a failure to act where there was no intentional decision to act contrary to, or undermine the employer's policies, constitutes such a grave act of misconduct as to justify summary dismissal".

Safeguarding is central to everything within a school environment. Children and their welfare are of paramount importance so that this case does provide that a greater emphasis may be placed on a failure to act in accordance with child protection policies and procedures. Using the language of gross dereliction of duty and gross negligence may be considered to be potentially fair reasons for a dismissal (depending on the facts). We recommend that Disciplinary Rules and Disciplinary Procedures are updated to refer specifically to gross negligence and gross dereliction of duty.

If you would like further information, please contact Alice Reeve in our Education team on 0117 314 5383.

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