Julie Sabba, Associate in our Employment team comments on a recent case where an employee was dismissed due to their failure to act rather than for wilful detrimental or negative actions.
The English Court of Appeal has held that in circumstances where a senior employee failed to correct a serious mistake, amounting to gross negligence, it constituted gross misconduct (Adesokan v Sainsbury's Supermarkets Ltd [2016]).
Facts
Mr Adesokan was a Regional Manager who became aware that a HR Manager had issued an email which attempted to interfere in and subvert an important management consultation exercise.
“Despite being aware of this email Mr Adesokan did nothing to get it withdrawn or to remedy the situation”.
In a disciplinary hearing it was decided that his inaction demonstrated gross negligence which was "tantamount to gross misconduct" and he was therefore dismissed. He sued for breach of contract.
Law
The Employment Rights Act 1996 (ERA) outlines several potentially fair reasons that can be relied upon to justify dismissing an employee. One such reason ‘relates to the conduct of the employee’, section 98(2)(b).
It may be either a single act of serious misconduct (usually termed gross misconduct) or a series of acts that are less serious.
Decision
The High Court held that even though the inaction of Mr Adesokan was not deliberate his negligence was so serious that it resulted in a "loss of trust and confidence" sufficient to justify dismissal. The Court of Appeal agreed that any decision on what amounted to gross misconduct turned on the specific facts of the case. Even though courts should not easily find that a mere failure to act amounted to gross misconduct, on the facts of this case, the senior position the claimant had in the company justified the dismissal.
Comment
Julie Sabba comments on the case as follows:
“We more commonly think of acts of gross misconduct, which allow employers to summarily dismiss employees, as being wilful actions by the employee that have a detrimental or negative impact in the workplace.
“Common examples are theft, fighting, fraud or serious health and safety breaches. What is less common is dismissing an employee where that person has simply failed to act.
“Employers should always be able to justify issuing any sanction, particularly one as serious as summary dismissal, but what is most important is being able to demonstrate a fair and reasoned analysis of the decision rather than focusing on whether or not the employee actually committed a tangible, positive act of wrongdoing. Attaching weight to the seniority of the employee or the impact of their inaction on the business are important factors that an employer can and should take into account.”
