Legal-ease: Committing gross misconduct by inaction

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Adesokan v Sainsbury’s Supermarkets reveals that a dereliction of duty can amount to gross misconduct

Colin Adesokan had worked for Sainsbury’s for 26 years; he was a regional operations manager responsible for 20 stores. Sainsbury’s operates a Talkback procedure. Staff are surveyed and the results are used to assess engagement and set strategy for improvement. The data also has an impact on performance, target setting, pay and bonuses.

HR partner Stephen Briner sent an email to store managers suggesting they get the most enthusiastic staff to complete the survey, so effectively seeking to manipulate the Talkback results. Adesokan became aware of this email only after it was sent; he asked Briner to clarify what he had meant. Briner did not do so however, and Adesokan did not follow this up or take any action.

When Briner’s email reached the CEO of Sainsbury’s, Adesokan was dismissed following a disciplinary procedure. The crux of the finding of gross misconduct was Adesokan’s inaction: he had failed to take adequate steps to prevent, stop or rectify the deliberate manipulation of the Talkback results.

Adesokan claimed breach of contract, arguing that his inaction did not amount to gross misconduct justifying dismissal. The High Court disagreed and held it was a serious dereliction of his duties in the context of the employer’s process and philosophy, and the impact the breach could have had.

Adesokan’s appeal was based on the gross misconduct finding being too harsh and the fact that the written policy defining ‘gross misconduct’ did not envisage negligent acts. The appeal was rejected. As a senior manager Adesokan was responsible for the success of the Talkback procedure and when he became aware that it was undermined he had a duty to remedy this. The examples of gross misconduct in the written policy were only examples and did in fact envisage acts of negligence.

The Court commented, however, that it should not readily be found that a failure to act constitutes such a grave act of misconduct as to justify dismissal.

It is possible to summarily dismiss for an act of negligence so serious that it results in a loss of trust and confidence, but the facts of the particular situation must be closely examined. Examples may include a manager turning a blind eye to discrimination, or failure to deal with health and safety risks by an employee whose role includes that responsibility.

Including a reference to serious neglect of duties as an example of gross misconduct within written disciplinary policies will assist with the fairness of any summary dismissal.

Nina Robinson a director at ESP Law, which provides HR magazine's HR Legal Service

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