Gross negligence was gross misconduct

Adesokan v Sainsbury’s Supermarkets Ltd [Court of Appeal] | 2017

Sainsbury’s have what they call ‘Talkback’, which is a process they use to measure employee engagement.  It is sacrosanct within Sainbury’s.

Mr A was a Regional Operations Manager for Sainbury’s, with responsibility for 20 stores.  He had been employed for 26 years. He worked with Mr Briner, a Human Resources Partner. Mr Briner sent an email to five store managers within Mr A’s region. The email suggested, as part of Talkback, that they: ‘should focus predominantly on getting [their] most enthusiastic colleagues to fill in the survey; using [their] huddles and briefings as a way of engaging these people. Slightly different to other years 100% completion is less important as long as you have a completion rate above 60% you will get a well-rounded view of your store.’

Mr Briner’s email ‘offended the philosophy of Talkback’. When Mr A became aware of the email he asked Mr Briner to clarify with the store managers what he meant.  Mr Briner did not. Mr A did not check. The email was sent a further two times. When Mr A realised Mr Briner had not actioned his request, he did nothing.

Sainbury’s dismissed Mr A without notice.  Sainbury’s took into account that Mr A was responsible for Talkback in his region, that Mr A was aware that Mr Briner had attempted to manipulate the results, and failed to take adequate steps to rectify the situation.  This was ‘gross negligence … tantamount to gross misconduct’.

Mr A brought a claim for dismissal in breach of contract, known as wrongful dismissal.

The High Court had to answer whether Mr A’s ‘negligent dereliction of duty was so grave and weighty as to amount to a justification for summary dismissal’.  It decided that it did.

Upholding this decision, the Court of Appeal took into account that:

• Mr A was responsible for the integrity of Talkback.
• Talkback’s integrity was at risk of being undermined by Mr Briner’s email.
• It was Mr A’s duty to remedy this.
• Mr A took insufficient action.
• Mr A’s failing had the effect of undermining the trust and confidence of the employment relationship and was capable of being gross misconduct.

This case was decided on its specific facts.  The Court noted that it is rare for a failure to act, without any deliberate intent, to amount to gross misconduct.  Mr A, however, given his position and the importance of Talkback, should have done more and his failure to do so was gross misconduct.