In the case of Adesokan v Sainsbury’s (2017), the Court of Appeal found (1) that negligence can constitute gross misconduct justifying summary dismissal; and (2) if an employee has been wrongfully dismissed, their remedy will usually be limited to notice pay (rather than ongoing wages), even if they refuse to accept the lawful dismissal and continue to present themselves for work.
Mr Adesokan worked for Sainsbury’s as Regional Operations Manager and was responsible for twenty stores. In June 2013, an HR Business Partner (HRBP), with whom Mr Adesokan worked closely, emailed the managers of five of the stores for which Mr Adesokan had responsibility. The email sought to manipulate the process of obtaining employee feedback – a process engrained in Sainsbury's culture and a critical part of Sainsbury's strategy for achieving a desirable working environment. When Mr Adesokan became aware of this, he failed to take action to remedy the situation or to report the HRBP’s actions to senior management. When the CEO became aware of the email, an investigation was implemented. Although it was accepted that Mr Adesokan had not positively participated in the manipulation, Sainsbury’s found that his lack of action demonstrated gross negligence.
Sainsbury’s disciplinary procedure provided that gross misconduct was a breach of standards or rules so serious that it could lead to summary dismissal and that gross misconduct included any other serious breach that led to a loss of trust and confidence.
Sainsbury’s view was that Mr Adesokan’s gross negligence which was tantamount to gross misconduct and justified summary dismissal under the disciplinary procedure. He was therefore summarily dismissed for gross misconduct and he brought a claim for wrongful dismissal.
The Court of Appeal (CA) held that, given the significance placed by Sainsbury’s on the integrity of the employee feedback process, the High Court was entitled to find that Mr Adesokan’s failure to act was a serious dereliction of his duty, undermining trust and confidence, and so constituted gross misconduct. It did not matter that Mr Adesokan had not been wilful or dishonest.
Mr Adesokan’s contract permitted a summary dismissal for gross misconduct, partly because examples of gross misconduct given in the disciplinary procedure did envisage acts of negligence constituting gross misconduct.
A separate point which was only briefly addressed by the CA, was whether damages would have been limited to Mr Adesokan’s notice pay, if he had been wrongfully dismissed. There has been some recent debate about this point but the CA stated that its previous decision (Gunton v Richmond-Upon-Thames) remains good law. An employee can only claim notice pay plus pay for the time it would take to carry out a contractual disciplinary procedure, if they are wrongly dismissed. They cannot claim ongoing salary indefinitely.
Employers should ensure that in their disciplinary policies and employment contracts, it is clear that a failure to act and gross negligence can constitute gross misconduct justifying summary dismissal. However, a dismissal of an employee with more than two years’ service still needs to be ‘fair’ and satisfy the ‘range of reasonable responses’ test to avoid a tribunal finding of unfair dismissal. The employee in this case had not brought such a claim.
This case can also be relied upon by employers to support an argument that the employment relationship is terminated following a summary dismissal, despite an employee’s refusal to accept the termination.