Case law updates

Negligent omission can be gross misconduct

In the case of Adesokan v Sainsbury’s Supermarkets Ltd the Court of Appeal has turned down an appeal that a one-off act of misconduct did not justify dismissal.

The case arose out of Sainsbury’s use of  ‘Talkback’, a staff satisfaction survey on which it places considerable value. The integrity and validity of the process is therefore critical.

Adesokan was a regional manager at Sainsbury’s with 26 years’ service. He was responsible for managing ‘Talkback’. In June 2013 his HR Advisor sent an email to five store managers, suggesting ways they might influence the survey results to make Adesokan’s region look good. Only later did Adesokun become aware of the email, which had been sent in his joint name. As the survey had ten days to run he instructed the HR Advisor to clarify what he meant with the store managers. This did not happen and Adesokun did not follow up. Moreover the offending email was circulated twice more. Three days before the survey closed Adesokun discovered these failures but took no action to fix the problem himself or alert his senior management.

When senior management discovered this, Sainsbury’s disciplined Mr Adesokun, found him guilty of gross misconduct and dismissed him summarily.

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

The Court of Appeal disagreed. Given Adesokun’s seniority, once he discovered the email he should have taken active steps to fix the problem. This failure to act was negligent, a serious breach of the standards expected, causing major damage to the relationship between the parties. This justified a finding of gross misconduct and summary dismissal.