Can you dismiss for gross misconduct for something an employee didn’t do?
It is of course very well-established law that if an employee does something which amounts to gross misconduct, this entitles their employer to terminate their employment without notice (summary dismissal).
But what if the problem has arisen from the fact that the employee has done nothing, i.e. a negligent failure to act? Can an employee ever be fairly summarily dismissed for something they didn’t do, rather than something they did?
That was the issue explored by the Court of Appeal in the recent case of Adesokan v Sainsbury’s Supermarkets.
Mr Adesokan had 26 years’ service with Sainsbury’s, and during his career he had worked his way up to be Regional Operations Manager with responsibility for 20 stores. In his role, he worked alongside a Human Resources Partner. Sainsbury’s has a company-wide commitment to a process called Talkback, whereby all staff are able to give feedback to the company in complete confidence about their views on things like their working environment and their relationships with managers and colleagues. Sainsbury’s had emphasised to all staff that the Talkback process should not be interfered with or influenced by management in any way.
Despite this, the Human Resources Partner sent an email to five store managers, effectively asking them to distort the Talkback results by encouraging feedback from more ‘committed’ staff members. Although it was initially suspected that Mr Adesokan was involved with that email, it was later accepted that he had known nothing about it. Once he did become aware of it, he had asked the Human Resources Partner to clarify the position with the managers. However, Mr Adesokan did not ever follow up to check that this clarification happened, he did not contact the store managers themselves to confirm the correct approach, and he did not alert anyone else at the company to what had happened.
Following an investigation and disciplinary process, Mr Adesokan was dismissed for gross misconduct for his failure to address the inappropriate action taken by the Human Resources Partner. (Presumably disciplinary action was also taken against the Human Resources Partner, but that has not been reported).
Interestingly, the case which progressed to appeal was not one which was brought in the Employment Tribunal. Mr Adesokan had instead pursued a claim for breach of contract/wrongful dismissal (i.e. a claim for his notice pay) in the civil courts – presumably because his notice pay was worth more than the Employment Tribunal’s limit of £25,000 for such claims.
At the High Court, the judge rejected Mr Adesokan’s claim, so he subsequently appealed to the Court of Appeal. At the Court of Appeal it was argued on his behalf that summary dismissal had been inappropriate because he had not acted deliberately or dishonestly, and also because he had told the Human Resources Partner to correct the mistake.
However, the Court of Appeal rejected the appeal. It was found that it was not enough that he had told the Human Resources Partner to correct the mistake – he had failed to take active steps to deal with the issue. As a senior member of staff it was to be expected that he would take action, and he had not. There was no requirement in the Court of Appeal’s view for Mr Adesokan’s inaction to have been dishonest or deliberate. Each case would depend on its own facts, but in this case Mr Adesokan’s inaction was a serious breach of Sainsbury’s policies and procedures, which meant that Sainsbury’s were justified in feeling that they could no longer have trust and confidence in him.
So in answer to the question, this case illustrates that yes, there can be circumstances when an employee can be summarily dismissed for something they didn’t do, if it amounts to gross negligence. Personally I am surprised that an appeal to the Court of Appeal was needed in order to establish that, as it seems obvious that this should be the case! However, cases of summary dismissal for gross negligence are relatively rare, and what helped Sainsbury’s in this case was the fact that their Talkback process was something which they were able to show was genuinely embedded in their company culture. As such, they could show that it was a sufficiently important issue that a senior member of staff would have a duty to deal with any inappropriate behaviour they might come across.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or email@example.com).