The Court of Appeal (CA) has upheld a finding that an employee’s summary dismissal (i.e. without notice) following a finding of gross negligence was lawful as it amounted to gross misconduct.
In most instances, a finding of gross misconduct is made in relation to a particular act committed by the employee in question. However, in Adesokan v Sainsbury’s Supermarkets Ltd, it was instead the employee’s failure to act that led to such a finding.
Mr Adesokan was a regional manager for Sainsbury’s with over 25 years’ service. The supermarket conducts an annual staff survey, which it takes seriously as part of its goal to offer a positive working environment. In June 2013 Mr Adesokan and an HR colleague, Mr Briner, were responsible for conducting the survey for the stores in Mr Adesokan’s region.
Initially unbeknown to Mr Adesokan, Mr Briner emailed the relevant store managers with suggestions as to how their survey responses could be given to reflect well on Mr Adesokan’s region. On becoming aware of that email, Mr Adesokan instructed Mr Briner to get back in touch with the managers to clarify what he meant by it, which Mr Briner did not do.
Mr Adesokan did not seek to confirm that the instruction had been followed up until a few days before the survey closed and, when he discovered that it had not, he did not contact the store managers himself or escalate the issue to his own managers.
The supermarket’s CEO became aware of Mr Briner’s email some time later and both he and Mr Adesokan were dismissed for gross misconduct. Mr Adesokan argued in his original claim that summary dismissal was not a reasonable response taking into account his long unblemished service and that he had not sent the offending email.
The High Court disagreed and the CA upheld that decision. The CA decided that, as Mr Adesokan was a senior member of management, he should have taken steps to rectify the issue created by Mr Briner’s email. His failure to check that the instruction to Mr Briner to clarify his email was followed up, as well as his failure to address the issue himself, meant that he had acted in a grossly negligent manner to such a degree that it could reasonably be said to have undermined the company’s trust and confidence in him. As such, a finding of gross misconduct was merited.
While cases of misconduct must be decided on their own facts, this one is helpful to employers in that it confirms that both acts as well as failures to act can amount to gross misconduct. Moreover, it confirms that summary dismissal can be a reasonable outcome despite a long period of service with no previous misconduct.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.