Can you summarily dismiss somebody for gross negligence?

9 February, 2017

The Court of Appeal has confirmed in Adesokan v Sainsnegligencebury’s Supermarkets Ltd [2017] EWCA Civ 22 that gross negligence can amount to gross misconduct, justifying summary dismissal.

The claimant, Mr Adesokan, had been a Regional Operations Manager at Sainsbury’s for some 26 years when he was summarily dismissed for gross misconduct after failing to take action to remedy a serious breach of the company’s Talkback Procedure (TP), a process whereby levels of staff engagement are assessed.

While the TP was being undertaken, the HR Partner sent an email to a number of store managers stating “I think you should focus predominantly on getting your most enthusiastic colleagues to fill in the survey,” which risked compromising the results.  When this came to Mr Adesokan’s attention, he instructed the HR Partner to clarify what he meant with the store managers, but Mr Adesokan didn’t follow up to make sure that the HR Partner actually did so. The HR Partner didn’t clarify and when Mr Adesokan found out, he did nothing to remedy the situation himself. As a result, Sainsbury’s decided to dismiss Mr Adesokan on the basis that his failure amounted to gross negligence tantamount to gross misconduct. Mr Adesokan sued for wrongful dismissal.

The High Court held that although Mr Adesokan hadn’t been dishonest, he had committed gross misconduct because his behaviour had undermined the trust and confidence in the employment relationship. Mr Adesokan appealed.

The appeal was dismissed. The Court of Appeal held that whether or not behaviour is dishonest doesn’t matter; the focus should be on the damage caused to the relationship between the parties.  It did however, state that courts shouldn’t easily conclude that a failure to act where there is no dishonest intention amounts to gross misconduct.  Each case will turn on the facts.   

Counsel for Mr Adesokan also argued that his actions didn’t amount to gross misconduct as defined in his contract.  The Court of Appeal disagreed because there were examples of negligent conduct in the definition of gross misconduct, e.g. a breach of health and safety rules.

In light of this decision, employers should make sure that all staff, particularly managers, are aware of their obligations and the potential consequences for failing to adhere to them.

It is also worth checking how gross misconduct is defined in your contracts and/ or policies.  It shouldn’t be limited to deliberate acts and may expressly include acts of gross negligence.