Negligence May Be Gross Misconduct

Adesokan v Sainsbury's Supermarkets Limited [2017] EWCA Civ 22

Why care?

There were two important points to be considered in this case: what constitutes gross misconduct, and what the appropriate damages for wrongful dismissal should be.

An employer is entitled to summarily dismiss for gross misconduct. Whether something is gross misconduct is a question of fact. Gross misconduct should not be limited to cases of dishonesty or intentional wrongdoing (Neary v Dean of Westminster (1999)) and a court may also consider whether conduct was of " such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant" and, if so, give the employer the right to dismiss without notice: Sinclair v Neighbour (1967).

Turning to the damages question, In Gunton v Richmond-upon-Thames (1980), the Court of Appeal held that where an employee accepted the termination of their employment at trial if not before, a wrongfully dismissed claimant could only claim for notice pay and, where relevant, the time a proper contractual disciplinary process would have taken. The employee was not entitled to ongoing wages as he had ceased to discharge the obligation of work in return for the benefit of wages. In Geys v Societe Generale (2013), the Supreme Court held that a repudiatory breach (the summary dismissal of an employee pursuant to a PILON clause, but without operating the PILON precisely in accordance with the contract) does not automatically terminate the employment contract, rather the contract is not brought to an end until and unless the innocent party elects to accept the breach. Geys was authority to allow employees to refuse to accept their wrongful dismissal and to claim for continuing wages as a debt, rather than damages.

The case

The Claimant was employed by Sainsbury's for about 26 years, latterly as a Regional Operations Manager, until he was dismissed for gross misconduct.

Sainsbury's have monitored staff engagement for many years through the Talkback Procedure (TP). TP is a deeply engrained in Sainsbury's culture and the results also influence performance progression, target setting and decisions about pay and staff deployment. Given its importance within the company, great emphasis is placed on the integrity and validity of the process.

In June 2013 an HR manager, Mr Briner, sent an email to store managers which could have had the effect of tainting TP results. Although the email was ostensibly sent...