If the beast from the east struck again
Stephanie Bowen | 08.03.2019
13.03.2017 Naomi Greenwood
Usually when an employee’s employment is terminated, the appropriate amount of notice must be given by the employer. The Employment Rights Act 1996 sets out the minimum amount of notice that must be given while an employee’s contract could also stipulate that a greater amount of notice must be provided. If the employer dismisses the employee without giving the statutory (or contractual) minimum notice, the employer could be sued for breach of contract or ‘wrongful dismissal’.
There are however certain situations where it will be appropriate for the employee to be ‘summarily dismissed’ (dismissed without any notice at all). One such situation is when an employee commits ‘gross misconduct’.
Whether an employee’s actions (or omissions) are sufficiently serious to constitute ‘gross misconduct’ is based on the facts of each case, and in the case of Adesokan v Sainsbury’s Supermarkets Limited  EWCA Civ 22 the question before the Court of Appeal was whether an employee’s ‘gross negligence’ equated to gross misconduct.
The Appellant (Mr Adesokan) had been employed by the Respondent (Sainsbury’s) for approximately 26 years when he was summarily dismissed for gross misconduct. An important part of the Respondent’s culture is the ‘Talkback Procedure’ – essentially a survey used to measure the level of engagement of the Respondent’s employees. The Appellant (who at the time of his dismissal was the Regional Operations Manager) worked with a Human Resources Partner (Mr Briner). In June 2013 Mr Briner emailed 5 store managers and instructed them to ask only their ‘most enthusiastic colleagues’ to complete the Talkback Procedure. Asking only ‘enthusiastic’ colleagues to complete a staff satisfaction survey clearly had the potential to distort its result. The Appellant initially asked Mr Briner to clarify his email though he did not check that Mr Briner had done as instructed. He later found out that nothing had been done, yet still did not inform more senior management or contact those managers answerable to him.
The Respondent’s CEO eventually found out what had happened and the Appellant was summarily dismissed for failing to rectify the effects of Mr Briner’s actions. The Appellant took the Respondent to court for wrongful dismissal.
At first instance the judge held that though the Appellant had not been dishonest, his omission could still amount to gross misconduct. The Court of Appeal agreed with the first instance decision. The court highlighted case law illustrating that what amounts to gross misconduct is a question of fact. Lord Justice Elias however stated that a key focus is ‘the damage to the relationship between the parties’ (see para 23). Deliberate acts of dishonesty could affect the employment relationship, but so could gross negligence. According to the court, judges should not be quick to hold that failures to act constitute gross misconduct. However in this case the judge at first instance was entitled to find that the Appellant’s failure to act was a ‘serious derelict of his duty’ because of the critical role the survey played in the Respondent’s culture. As such the Appellant’s failure to ensure the survey was carried out with integrity undermined the relationship of trust and confidence between him and his employer.
The lessons that can be drawn from this case are perhaps most relevant to senior managers or others in leadership positions. While failing to do something might not always justify summary dismissal, where a manager sees some wrongdoing by those under their control, they do have a duty to make sure such mistakes are corrected.
If you have any questions about whether the actions of one of your employees might constitute gross negligence please do not hesitate to contact a member of our team.