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Negligence or Misconduct – does it matter?

Employment contracts and disciplinary procedures/rules will often make reference to “negligence in the performance of duties,” with a potential consequence being disciplinary action, including dismissal.

A recent Court of Appeal case considered whether serious negligence is capable of amounting to gross misconduct, particularly where the negligence in question was failing to correct someone else’s error.

Adesokan v Sainsbury’s Supermarket Limited

Mr Adesokan had been employed by Sainsbury’s for approximately 26 years; latterly as a Regional Operations Manager. This was a senior post within Sainsbury’s and gave him responsibility for 20 stores.

Sainsbury’s operate a procedure which they call the Talkback procedure. This is designed as an employee engagement tool to ensure that staff are engaged, motivated and take pride in their work. Sainsbury’s believe that the Talkback procedure improves customer service which in turn means customers are happier and more loyal. Sainsbury’s facilitate the procedure by trying to ensure that all staff are involved in the exercise and are able to give information in absolute confidence about their working environment and relationships with colleagues, including line managers and senior managers. The process is engrained in Sainsbury’s culture and forms part of their key staff strategy.

In 2013, the HR partner working alongside Mr Adesokan sent an email to store managers about the upcoming Talkback exercise. In it, the HR partner suggested that the managers focus predominantly on getting the most enthusiastic colleagues to fill out the survey. He set out that unlike previous years where 100% completion was targeted, this time a 60% completion rate was satisfactory. The tenor of this email was at odds with the concept of the Talkback procedure. Whilst Mr Adesokan didn’t send the email, he was responsible for the procedure in his stores and he became aware of the email a week after it had been sent, whilst the process itself had 10 days to run. He instructed the HR partner to clarify what he meant with the store managers but did not make any further checks as to whether this had been done. The HR partner did not clarify what he meant and the offending email was actually recirculated twice.

Sainsbury’s CEO was sent a copy of the email in September 2013 and subsequently Mr Adesokan was summarily dismissed following an investigation and disciplinary hearing.  The dismissing manager found that he was aware the HR partner had deliberately set out to manipulate the Talkback scores, had failed to take any steps to rectify the situation and the company believed that this demonstrated gross negligence which was tantamount to gross misconduct. Mr Adesokan brought a claim for wrongful dismissal.

The High Court considered all of the evidence and found that Mr Adesokan knew or ought to have known that the Talk Back procedure was a core part of Sainsbury’s operating process and philosophy. He knew that people had been sacked for offending it. He knew that the email had the potential to affect the integrity of the results and finally he knew that he either needed to do something about it or report it upwards so that the decision could be made on whether the approach taken was acceptable.

The High Court noted that these were omissions rather than positive acts of misconduct but nevertheless amounted to a serious breach of policy. Mr Adesokan had direct responsibility to either correct the breach or report it.

The High Court considered that the negligence amounted to gross misconduct as it had seriously damaged the trust and confidence in Mr Adesokan such that Sainsbury’s could not continue to employ him. Mr Adesokan appealed the decision to the Court of Appeal.

Decision

Mr Adesokan raised three grounds for his appeal. Firstly, he argued that his conduct did not amount to gross misconduct as a matter of law. Secondly, he submitted that under his contract, he could not be dismissed in these circumstances as the examples of gross misconduct did not envisage negligent acts. Finally, he argued that there was no breach of procedure in failing to correct a breach of the procedure by somebody else for which he was not responsible. Mr Adesokan also argued that the Talkback exercise was not redone and so there couldn’t have been any negative consequences of the inaction taken. This, he claimed, mitigated any misconduct.

Having considered all of these grounds and submissions the Court of Appeal found that it was not able to interfere with the High Court’s decision and Mr Adesokan’s negligence in this case was capable of amounting to gross misconduct.

Comment

The Court of Appeal commented that it will be rare for gross misconduct to be found where there is a failure to act without an intentional decision; however, as matter of law, gross negligence can amount to gross misconduct.

Whilst this will be fact sensitive, employers may be able to take disciplinary action up to dismissal if an employee’s negligence is so serious, including in any failure to act, such that the relationship can no longer continue.

If you have any queries about disciplinaries or any other HR queries do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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