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Gross Negligence - When Can Employees be Dismissed for Failing to Act?

on Friday, 21 April 2017.

Court of Appeal upholds decision to dismiss a manager for gross misconduct for their failure to correct an employee's misconduct and failing to report it to senior management.

Adesokan v Sainsbury's Supermarkets Ltd


Mr Adesokan (Mr A) was employed by Sainsbury's for some 26 years. At the time of his dismissal, he was a Regional Operations Manager of Sainsburys, 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. It also influences performance progression, target setting and pay decisions.

Mr A worked closely with a HR Business Partner (Mr B) who, in June 2013, sent out an email to five store managers under Mr A's jurisdiction which undermined the TP and risked compromising the result. In summary, the email advised store managers to not 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 this 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 and did not contact the store managers directly to discuss the approach or alert senior management.

Sainsbury's CEO was sent an anonymous copy of the email and an investigation was instigated, which resulted in Mr A being told that he was being summarily dismissed for gross negligence.

Mr A brought a claim for wrongful dismissal.

Employment Tribunal (ET)

The ET dismissed Mr A's claim. Although Mr A was not dishonest and had not made a conscious decision not to take steps to eliminate the effects of Mr B's email, his failure to take active steps to remedy the situation amounted to gross misconduct. This gross misconduct so undermined the trust and confidence in the employment relationship to justify summary dismissal.

Mr A appealed.

Court of Appeal (CA)

The CA dismissed Mr A's appeal. 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, the ET judge was entitled to find that this was a serious dereliction of his duty constituting gross misconduct.

Best Practice

Schools may often want to take action against employees for summary dismissal where those employees have failed to report safeguarding concerns or have failed to highlight any circumstance that may reasonably be considered to pose a risk or an increased risk to children.

This decision is helpful to demonstrate that gross negligence can, in some cases, constitute gross misconduct. 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".

In this case, it was key to the CA's decision that great emphasis was placed on the integrity and validity of the TP. Schools already place significant emphasis on safeguarding, but reinforcing this with clearly set out duties in employment contracts and policies will aid any decision to dismiss for failing to act in accordance with these requirements.

For more information, contact Jenny Marley in our Academies team on 0117 314 5378.