Tue 31 Jan 2017

Can gross negligence equate to gross misconduct

The Court of Appeal considers whether a negligent failure to act by an operations manager amounted to gross misconduct justifying summary dismissal.

It is often assumed that for a conduct dismissal to take place there must have been some intent to do wrong on the part of the employee, and that negligence would perhaps more correctly fall under the category of poor performance - something that would not usually result in summary dismissal.

The Court of Appeal has considered this point in the case of Adesokan v Sainsbury's Supermarkets Limited.  Mr Adesokan was a regional operations manager for Sainsbury's with responsibility for 20 stores.  Sainsbury's have a "Talkback Procedure" which measures the level of engagement of Sainsbury's staff.  The procedure has been operating from many years and is considered important in achieving a desirable working environment.  All staff are involved in the procedure, and they can use it to give information in complete confidence about their working environment, colleagues and managers.  All managers were aware that the procedure must not be interfered with or influenced by management.

Mr Adesokan's HR partner, a Mr Briner, sent an email to managers of 5 of the stores under his responsibility which suggested attempting to influence who completed the Talkback Procedure.  Although not involved in the sending of the email Mr Adesokan became aware of it a week later.  He told Mr Briner to clarify what was meant by the email to store managers, but Mr Briner did not do so and Mr Adesokan did not check.  Nor did he contact the store managers himself or make more senior managers aware of what had happened.

Mr Adesokan was subsequently disciplined.  It was accepted he was not involved in the production of the email but he was dismissed on the basis that his failure to act was gross negligence which was "tantamount to gross misconduct".  Mr Adesokan sued Sainsbury's for wrongful dismissal in the High Court, however his claim was dismissed, the Judge finding that the failure to act did amount to gross misconduct.  Mr Adesokan appealed.

As part of the appeal a submission was made that gross misconduct was limited to cases of intentional wrongdoing or dishonesty.  The Court of Appeal rejected that submission taking the view that an act of gross negligence can in some cases equate to gross misconduct.  The Court of Appeal accepted the High Court Judge's conclusion that Mr Adesokan's failure to act was a serious dereliction of duty which amounted to gross misconduct because it undermined the trust and confidence in the employment relationship. 

It was accepted in this case that this was simply a failure to act - there was no intent involved on the part of Mr Adesokan.  While in this case the court found that gross misconduct had occurred this was very much influenced by the particular facts of the case, including the senior position Mr Adesokan held, the importance of the integrity of the Talkback Procedure and how serious the undermining (albeit unintentional) of the procedure was considered to be.  It should be borne in mind that courts and Employment Tribunals will not easily find that an unintentional failure to act will amount to gross misconduct.

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