Adesokan v Sainsbury's Supermarkets Ltd

Gross misconduct is not confined to dishonest or deliberate conduct. A negligent dereliction may justify summary dismissal if, viewed objectively, it is sufficiently grave to destroy or seriously damage the employer’s trust and confidence in the employee. The inquiry is fact-sensitive and depends on the employee’s responsibility, knowledge of the risk and failure to take adequate corrective action. Actual harm need not have occurred where the omission endangered a core procedure. Contractual examples of gross misconduct may encompass conduct which undermines a policy’s operation even without directly breaching it. An appellate court will not displace a trial judge’s evaluative conclusion on undisputed facts unless it lies outside reasonable disagreement.

The appellant had worked for the respondent for 26 years and was a Regional Operations Manager. During a staff-engagement survey known as the Talkback Procedure, his Human Resources partner sent store managers an email encouraging them to seek responses from enthusiastic staff. The appellant became aware of the email, instructed the partner to clarify it, but did not ensure that this occurred. When he later learned that no clarification had been sent, he took no further action.

The respondent summarily dismissed him for gross misconduct. HH Judge Gore QC, sitting as a Deputy Judge of the High Court, held that his omissions were a serious dereliction of his own responsibility and lawfully justified summary dismissal. The appeal challenged whether negligent omissions could amount to gross misconduct and whether the contractual disciplinary policy covered them.

1. The appeal was unanimously dismissed. The appellant’s wrongdoing was not guilt by association with the Human Resources partner. It was an independent and serious dereliction of his own responsibility to ensure the proper operation of the Talkback Procedure.

2. Whether misconduct justifies summary dismissal is fact-sensitive. Gross misconduct is not limited to dishonesty or intentional wrongdoing. Conduct falling short of dishonesty may nevertheless be sufficiently grave and weighty to be incompatible with the employee’s duty and to destroy or seriously damage the employment relationship of trust and confidence: [1998] AC 20, [1999] IRLR 288 and [1967] 2 QB 279.

3. The High Court judge was entitled to conclude that the appellant’s omissions met that standard. He was responsible for implementation of a procedure central to the employer’s culture and performance management. Once he knew that the email put its integrity at risk, an instruction to the sender to clarify matters was insufficient. After learning that no clarification had been given, he had to take effective corrective steps or report the matter. The absence of proved harm did not mitigate the omission, because senior management had to be informed in order to decide whether remedial action, including repeating the process, was required.

4. The contractual examples of gross misconduct were illustrative rather than exhaustive. They could encompass negligent conduct. A serious breach of policy or procedure included conduct which undermined the operation of a policy, although it was not itself a direct breach of the procedure. The conduct also seriously breached the standards expected of the appellant and fell within the contractual definition of gross misconduct.

5. On an appeal involving an evaluative conclusion from undisputed primary facts, the court could intervene only if the conclusion was wrong and outside the bounds of reasonable disagreement. The judge’s conclusion was open to him.

6. It was unnecessary to decide the notice-period damages issue. Elias LJ nevertheless stated that [1981] Ch 448 remained binding on the Court of Appeal and was not inconsistent with [2013] 1 AC 523.

• Court of Appeal (Civil Division) — unanimously dismissed the appeal: [2017] EWCA Civ 22.
• High Court of Justice, Queen’s Bench Division — HH Judge Gore QC, sitting as a Deputy Judge, held that the appellant’s gross misconduct lawfully justified summary dismissal. No citation for that decision was stated in the judgment.