Can negligence amount to misconduct?

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A recent court case examined whether serious negligence can amount to gross misconduct where the negligence in question was failing to correct someone else’s error.

Adesokan v Sainsbury’s Supermarket Limited

Mr Adesokan had a senior position with Sainsbury’s as a Regional Operations Manager.

In 2013, the HR partner working alongside him sent an email to store managers about the upcoming Talk Back exercise, an employee engagement tool that was a key part of their staff strategy and intrinsic to the culture within the organisation.  In it, the HR partner suggested that the managers focus predominantly on getting the most enthusiastic colleagues to complete the survey; that unlike in previous years, where 100% completion was targeted, this time a 60% completion rate would be satisfactory. Mr Adesokan recognised that this was not in keeping with the aims of the Talk Back tool and he instructed the HR partner to clarify what he meant with the store managers. He did not make any further checks as to whether this had been done. The HR partner did not clarify what he meant and the original email remained in circulation.

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 that the HR partner had deliberately set out to manipulate the Talk Back scores but had failed to take any steps to rectify the situation. 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 that they 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 trust and confidence in Mr Adesokan to the extent that Sainsbury’s could not continue to employ him. Mr Adesokan took 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 cover negligent acts. Finally, he argued that there was no breach of procedure in failing to correct a breach of the procedure made by somebody else and for which he was therefore not responsible. Mr Adesokan also argued that the Talk Back exercise was not redone and so there could not 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. Depending on the details of the case, 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 need support with a disciplinary issue or would like us to review your disciplinary procedure, please do get in touch.

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