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Court rules negligent omission can be gross misconduct

The case of Adesokan v Sainsbury’s Supermarkets Ltd centres around Sainsbury’s ‘Talkback’ procedure, which is essentially a comprehensive staff satisfaction survey. The supermarket has operated Talkback for years. It was “deeply ingrained in Sainsbury’s culture and… a critical part of Sainsbury’s strategy for achieving a desirable working environment”. Sainsbury’s places great emphasis on the integrity and validity of the process to ensure that feedback generated is genuine and complete – it follows that employees are expected not to interfere with that process in any way.

Mr Adesokan was a regional manager at Sainsbury’s with 26 years’ service. Alongside Mr Briner, a human resources partner, Mr Adesokun was responsible for undertaking the survey in June 2013. On day one of the process, Mr Briner sent an email to five store managers, suggesting ways they might influence the survey results to make Mr Adesokan’s region look good.

One week later, Mr Adesokun became aware of the email (which had been sent in his joint name). At this point the survey still had 10 days to run, so he instructed Mr Briner to “clarify what he meant with the store managers”. Mr Briner failed to do this and Mr Adesokun did not follow up. To make matters worse, the offending email was then recirculated twice. When the survey had three days left to run, Mr Adesokun discovered that Mr Briner had not followed his earlier instruction. However, this did not prompt him to fix the problem himself, or alert more senior management.

The email came to the CEO’s attention several weeks later. Sainsbury’s disciplined Mr Adesokun and found him guilty of gross misconduct. Accordingly, they were entitled under his contract to dismiss him immediately without notice.

Mr Adesokun argued that his conduct was not serious enough to be gross misconduct. He did not send the offending email. His actions were not deliberate or intentional. This was his only disciplinary offence in 26 years. Moreover, he did not cause Sainsbury’s any harm; in fact, the survey scores for his region were not affected. Mr Adesokun argued that a summary dismissal was too harsh for a one-off offence.

The Court of Appeal disagreed. Given Mr Adesokun’s seniority, once he discovered the email he should have taken active steps to fix the problem. Given the significance placed by Sainsbury’s on the Talkback procedure, this failure to act was negligent and a serious breach of the standards expected of him, which undermined trust and confidence and justified a finding of gross misconduct.

Whether conduct amounts to gross misconduct will be a question of fact in each individual case, but the real focus should be on the damage to the relationship between the parties. Dishonesty and other deliberate acts that poison the relationship are obviously damaging to trust and confidence but, in an appropriate case, acts of gross negligence can be too.

This will be a welcome decision for employers. It may be useful where the employment relationship has been seriously damaged through the unwitting/unintentional acts or omissions of an employee, even if that employee has a long and unblemished service.

Employers should check their disciplinary policies to ensure that any examples given of gross misconduct are not limited. It may also be wise to make specific reference to ‘negligent acts or omissions that lead to a loss of trust and confidence’.

Added: 30-01-2017

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