The Court of Appeal has considered whether or not, by failing to correct an error made by another employee, a manager committed gross misconduct.
Adesokan v Sainsbury’s Supermarkets Limited  EWCA Civ 22
Mr Adesokan had been employed by Sainsbury’s for 26 years, rising to the senior rank of Regional Operations Manager responsible for 20 stores. In June 2013, he was responsible for managing the Talkback procedure in his region.
Talkback is an essential component of Sainsbury’s commercial and personnel strategies. Sainsbury’s uses it to engage with the whole of its workforce with a view to resolving issues and thereby providing a better working environment which is hoped will be reflected in enhanced customer service. The Court described this process as deeply engrained in the culture of Sainsbury’s and said that managers would have been “under no illusion that Talkback must not be interfered with or influenced by management“, and noted that “People got sacked for offending [Talkback] and [Mr Adesokan] knew that“.
On 17 June 2013, Mr Briner, a Human Resources Partner that Mr Adesokan worked alongside, sent out an email on Mr Adesokan’s behalf encouraging managers carrying out Talkback to focus on getting responses from the “most enthusiastic” employees only and that doing so would “show everyone how amazing we are“. The tone of that email was clear that managers were encouraged to cherry-pick participants in an effort to generate misleadingly positive results.
It was accepted by all parties that, although the email went out from his account, Mr Adesokan knew nothing about it. When he found out about that email he told Mr Briner to clarify the situation. In July 2013, when Mr Adesokan found out that Mr Briner had failed to do so, he took no further action.
In September 2013, Sainsbury’s CEO anonymously received the email of 17 June 2013 and instigated an investigation. Whilst Mr Adesokan was found not to have been complicit with Mr Briner’s actions, he was nevertheless dismissed without notice for gross negligence “which“, Sainsbury’s said, “is tantamount to Gross Misconduct“.
Mr Adesokan brought a claim for wrongful dismissal in the High Court. The Court found that, whilst Mr Adesokan had not been dishonest or taken a conscious decision not to deal with Mr Briner’s wrongdoing, his failure to deal with the situation (or even report it to his superiors) amounted to gross misconduct. As a result, the High Court judge held, he had “so seriously damaged the trust and confidence” Sainsbury’s had in Mr Adesokan that it was entitled to dismiss him without notice.
Mr Adesokan appealed to the Court of Appeal.
The question to be asked in cases of negligence amounting to gross misconduct, said the Court of Appeal, is whether the “negligent dereliction of duty […] was so ‘gave and weighty’ as to amount to a justification for summary dismissal“. Lord Justice Elias noted that Mr Adesokan had been responsible for ensuring Talkback was carried out properly in his region and had failed in that duty by neglecting to take steps (or only taking steps that were “plainly insufficient“) to remedy Mr Briner’s misdeed when it was discovered. The Court of Appeal endorsed the High Court’s view that a serious breach of a policy or procedure, even by omission, was capable of amounting to a dereliction of duty. As a result, “Sainsbury’s was entitled to dismiss summarily for gross misconduct“.
This case will be welcome news for employers who want to safeguard their critical policies and procedures, especially where they may be concerned about attempts to frustrate the objectives behind them. Conversely, employees – especially those in senior, managerial positions – need to take note that failing to deal with issues of misconduct as they arise can create just as many issues as committing the misconduct yourself. However, both employers and employees should be cautious about relying too heavily on Adesokan v Sainsbury’s Supermarkets. The case is based on its own facts that will not exist in every circumstance. A central point throughout both the High Court’s and the Court of Appeal’s judgments is the fact that Talkback was a crucial part of Sainsbury’s culture. An employer who dismisses a manager for failing to rectify another employee’s breach of a less significant policy (or a policy that is, at least, considered by the business to be less significant) might not be able to defend its position so robustly.
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