Can gross negligence constitute gross misconduct?

David Potter, Freeths, Nottingham

The Court of Appeal has held in the case of Adesokan v Sainsbury’s Supermarkets Ltd that in some circumstances gross negligence can constitute gross misconduct.

Facts

Mr Adesokan was employed by Sainsbury’s for 26 years, latterly as a Regional Operations Manager. This was a senior role with responsibility for 20 stores. He became aware that an HR Manager had issued an email which attempted to interfere in and subvert an extremely important management consultation exercise, but did nothing to get it withdrawn or to remedy the situation.

In a disciplinary hearing it was decided that Mr Adesokan’s inaction demonstrated gross negligence which was “tantamount to gross misconduct” and he was therefore dismissed.

Mr Adesokan sued for breach of contract arguing that his actions did not amount to gross misconduct and did not justify dismissal without notice.

The High Court, and subsequently the Court of Appeal, rejected his appeal. Although he was not dishonest and had not made a conscious decision not to take steps to eliminate the effects of the HR Manager’s email, it was decided that in view of his senior position his failure to take active steps to remedy the situation amounted to gross misconduct.

Comment

It is clear from the decision that gross misconduct is not limited to cases of intentional wrongdoing or dishonesty. Not every negligent act, or failure to act, will amount to gross misconduct. Whether it does will depend on the individual facts including the seniority of the employee; what type of work they are doing; and whether the negligence has resulted in a loss of trust and confidence.

Employees should be given ‘advance warning’ of what will be viewed as gross misconduct by reference to the employer’s standards of conduct as set out in the disciplinary policy and communicated to all employees.

For further information please contact:
David Potter
Partner
0845 2746819