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When conduct is judged not gross

Chris Cook

The Court of Appeal recently held that a negligent omission by a senior employee amounted to gross misconduct, warranting dismissal with immediate effect. From Chris Cook, Partner and Head of the employment department at law firm SA Law.

In Adesokan v Sainsbury’s Supermarkets Ltd, it was argued that an employee’s failure to take adequate steps to remedy manipulation of survey scores, for which the employee was accountable, was an act of gross negligence and constituted gross misconduct. The Court of Appeal agreed with the High Court’s view that the employee’s dereliction of duty was “so grave and weighty” that it undermined the trust and confidence of the employment relationship and, therefore, summary dismissal was justified.

The Court of Appeal reaffirmed the approach taken in previous case law in this area; namely, that there is no fixed rule of law defining the degree of misconduct which will justify dismissal. Therefore, the question of whether the misconduct proved establishes the right to dismiss an individual depends on the facts. The Court of Appeal acknowledged that dishonesty and other actions which “poison the relationship” will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.

The Adesokan judgment highlights the need for employers to review their policies and procedures and ensure that they thoroughly outline any actions or omissions that may constitute gross misconduct, specifically in relation to their particular business. Following the Court of Appeal’s reasoning in this case, employers should consider including specific wording in this non-exhaustive list to account for any serious act or omission that could lead to a serious loss of trust and confidence. At the outset and during their employment, employees should expressly be made aware of the existence of these policies, the requirement to adhere to them and the consequences of breaching them. Regular training sessions will result in greater awareness of the importance of observing these policies.

Mr Adesokan was a regional operations manager with responsibility for 20 stores. It is likely that his seniority contributed to the finding that his negligent omission was so serious to constitute gross misconduct. It is important that employment contracts for senior employees set out the full extent of their duties and their accountability and responsibilities for specific tasks or projects. Employers should include watertight provisions in respect of their right to terminate employment without notice, setting out in full any acts or omissions that may constitute gross misconduct.  These reminders will hopefully act as a reminder, and a deterrent, to employees like Mr Adesokan who consider that they are not doing anything wrong, from a legal perspective, by failing to fulfil a particular task or responsibility.

It is worth bearing in mind that tribunals and courts will not easily find that an omission constitutes gross misconduct. However, it is possible that gross negligence can amount to gross misconduct. The context in each case is important and if there is any doubt regarding the seriousness of the offence, employers should ensure that they undertake a comprehensive investigation to assess its severity and to reach a conclusion as to whether or not it truly undermines the trust and confidence of the employment relationship. Employers should remember that when considering whether conduct should be characterised as gross misconduct, the conduct must be so serious that it goes to the root of the contract, entitling the employer to dismiss the employee with immediate effect.

In Adesokan, the Court of Appeal held that the judge was justified in reaching his conclusion, given the particular circumstances of the case. The critical feature of justification was that Mr Adesokan was responsible for ensuring successful implementation of this particular survey in his region and, therefore, it was his duty to at least take further steps to remedy the situation.

salaw.com

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