It is rare for an employer to rely on an employee's negligence as a sufficient reason to dismiss. This is particularly the case where there has been a one-off error. Also, it is likely that a more reasonable approach would be to give the employee an opportunity to improve their performance. This would involve following a performance improvement procedure. However, there may be exceptions, where the error is serious and the employee is senior enough, that a negligent act may be sufficiently serious to warrant dismissal without notice.

In Adesokan v. Sainsbury's Supermarkets Limited [2017] EWCA Civ 22 the Court of Appeal held this was one such case. Mr Adesokan had been employed by Sainsbury's for 26 years. He held a senior role – Regional Operations Manager – and had responsibility for 20 stores.

Mr Briner was a colleague of Mr Adesokan's. Mr Briner emailed five store managers to encourage them to get employees loyal to the company to complete the company's staff engagement survey. Such an approach ran the risk that it may compromise the integrity of the survey. Mr Adesokan asked Mr Briner to clarify his instructions to the store managers, to avoid skewed survey responses. Mr Adesokan failed to ask Mr Briner if he had done this, and did not tell his managers of the issue. When management became aware of Mr Briner's actions and Mr Adesokan's failure to take any proper action to prevent skewed survey results, Sainsbury's dismissed Mr Adesokan on the grounds of "gross negligence on his part which is tantamount to gross misconduct". Mr Adesokan disputed that his actions amounted to gross misconduct and brought a claim for his notice pay.

The High Court and, on appeal, the Court of Appeal found that Mr Adesokan's summary dismissal was fair. The Court found that Mr Adesokan was grossly negligent in not taking steps to put right Mr Briner's actions. It judged Mr Adesokan's misconduct to fall within the examples of gross misconduct set out in the company's disciplinary policy. It did not matter that Mr Briner's actions were not deliberate and were not dishonest. The fact that Mr Briner's actions did not compromise the survey results did not lessen the gravity of the misconduct. Mr Adesokan's seniority played a part in the Court of Appeal's decision-making.

As is always the case, each claim will turn on its own facts. In this case the seniority of Mr Adesokan, his role and the loss of trust and confidence stemming from the act of negligence all played a part in the Court reaching the decision that the conduct amounted to gross misconduct. The fact that the disciplinary policy also addressed types of negligence and the consequences helped the company. Therefore, updating disciplinary procedures is a step that all employers could and should take following this case.