Gross misconduct from gross negligence

25 January 2017

Yesterday the Court of Appeal gave judgment on Adesokan v Sainsbury’s Supermarkets Limited [2017] EWCA Civ 22. Whilst this was not an Employment Tribunal case – it came up from the High Court – it will be of interest to HR professionals and advisers.

It should be noted that the claim in the High Court was for wrongful dismissal (i.e. a contractual claim for notice pay) and not for unfair dismissal as per section 94 of the Employment Rights Act 1996.

Adesokan was employed by Sainsbury’s for 26 years. Before his dismissal he was a Regional Operations Manager managing 20 stores.

The key facts of the case related to an employee feedback procedure in place at Sainsbury’s: Talkback Procedure (TP). “The philosophy behind this procedure is the desire to ensure that staff should be engaged, motivated, and take pride in their work. It is believed that this will improve customer service which in turn leads to happier and more loyal customers.” All managers in the business were aware of the significance of TP and the need to have accurate reporting.

In essence, the HR business partner for Adesokan wrote to the store managers under Adesokan’s management and suggested fixing the TP by having the most loyal and eager employees complete the process. Adesokan was copied on the email but only read it a week later (when the TP was still running). Adesokan then advised the HR business partner to follow up with the store managers to “clarify what [he meant]”. Adesokan did not follow up with the HR business partner – to check he had done so – or the store managers directly.

When the email from the HR business partner was subsequently and anonymously disclosed to Sainsbury’s CEO an investigation in to Adesokan’s action began. This culminated in his dismissal for gross misconduct on the basis of gross negligence. In the dismissal letter is was noted that after the attempt to manipulate the scores “[Adesokan] failed to take any adequate steps to rectify this serious situation”.

Adesokan brought a High Court claim for breach of contract. He lost and appealed.

His grounds of appeal related to:

  • his (previously unblemished) length of service;
  • the sanction being too harsh;
  • the results of the TP not being impacted in the event;
  • the listed examples of gross misconduct not including negligence (or if, they did, then only negligence towards third parties); and
  • his assertion that there was no serious breach of policy or procedure by his personal actions or inactions.

None of the grounds were successful and the Court of Appeal found that Sainsbury’s were entitled to dismiss for gross misconduct; it was a conclusion that had been open to the High Court judge. The Court of Appeal re-confirmed that listed examples of gross misconduct (for example in handbooks or contracts) are not to be seen as conclusive lists.

If you would like to read the judgment click here.

If there is a matter you would like to discuss with our team then contact us here.