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Published 6 February 2017
In this case, the Court of Appeal held that gross negligence can constitute gross misconduct, justifying dismissal without notice.
Mr Adesokan was employed by Sainsbury's for 26 years before he was summarily dismissed. At the time of his dismissal, he was a Regional Operations Manager, one of the more senior posts in the company, and responsible for twenty stores.
Sainsbury's operates the "Talkback Procedure", or "TP", which is the process whereby the level of engagement of staff is quantified. It is considered by Sainsbury's to be very important, and is deeply engrained in the company's culture. As Regional Manager, Mr Adesokan was responsible for ensuring the successful implementation of TP in his region.
A Human Resources Partner, Mr Briner, worked alongside Mr Adesokan. Mr Briner sent out an inappropriate email about TP to five store managers in Mr Adesokan's region. The advice conveyed in the email offended the philosophy of TP and risked compromising the results of the process. The email was ostensibly sent jointly by Mr Adesokan and Mr Briner, although at the time Mr Adesokan knew nothing about it. When Mr Adesokan became aware of the email, he asked Mr Briner to clarify what he meant with the store managers. However, Mr Briner did not do so, and Mr Adesokan did not check whether or not he had done. When Mr Adesokan found out that Mr Briner had not clarified the email, he did nothing to remedy the problem: he did not contact the store managers, nor did he alert more senior management. Sainsbury's CEO was anonymously sent a copy of the email. An investigation was carried out, which led to disciplinary charges being instigated against Mr Adesoken. While it was accepted that Mr Adesokan was not complicit in any way with Mr Briner in sending out the email, at the conclusion of a disciplinary process, he was summarily dismissed for gross misconduct. The dismissal letter stated that, "You were accountable for Talkback in your region…You were aware that your HR partner had communicated…in a way that deliberately set out to manipulate…You failed to take any adequate steps to rectify this serious situation…it is my belief that these demonstrate gross negligence on your part which is tantamount to Gross Misconduct."
Mr Adesokan sued Sainsbury's for breach of contract in respect of his notice period. The question for the judge in the High Court was whether the appellant had committed gross misconduct and, if so, whether it justified summary dismissal under the contract. The judge found that Mr Adesokan's omissions did amount to gross misconduct which seriously damaged the trust and confidence in Mr Adesokan so that Sainsbury's could not be regarded as obliged to continue to employ him. This was in spite of the fact that Mr Adesokan had been neither wilful nor dishonest.
Mr Adesokan appealed. The main point of appeal was that his conduct was not capable, as a matter of law, of amounting to gross misconduct. The Court of Appeal examined when misconduct can be regarded as "gross". Looking at existing case law, the Court said that the question for the High Court judge had been whether the negligent dereliction of duty was "so grave and weighty" as to amount to justification for summary dismissal. The Court of Appeal held that it was open to the High Court to come to the conclusion that it had been. Mr Adesokan's responsibility for ensuring the implementation of TP was critical to this conclusion and it was his duty to ensure that the risk of undermining the TP process created by Mr Briner's email was remedied. His failure to do so was a serious dereliction of his duty. However, the Court of Appeal also cautioned that this case was unusual: "it ought not readily to be found that a failure to act where there was no intentional decision to act contrary to or undermine the employer constitutes such a grave act of misconduct as to justify summary dismissal."
This case shows that employers can summarily dismiss employees without being in breach of contract for negligence. However, cases where this can happen will be the exception rather than the rule.
Employers should note that this was a wrongful rather than unfair dismissal claim, and related to Mr Adesokan's entitlement to notice. Although the argument was not successful in this case, it is a reminder that an employee may be fairly dismissed for gross misconduct, but still have a potential claim for breach of contract in relation to their notice period. Employers who are summarily dismissing employees need to be particularly conscious of both contractual and statutory rights.
Mr Colin Adesokan and Sainsbury's Supermarkets Ltd  EWCA Civ 22
London - Walbrook
+44 (0)20 7894 6583
+44 (0)20 7894 6564
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