In Adesokan v Sainsbury's Supermarkets Ltd, the Court of Appeal decided the claimant employee’s failure to act represented gross negligence. The claimant was a Regional Operation Manager for Sainsbury’s, a senior post responsible for 20 stores. He became aware that the HR Manager had sent an email undermining the integrity and validity of Sainsbury’s process for assessing staff engagement in his region, called the “Talkback Procedure”. The email encouraged store managers to only have the “most enthusiastic colleagues fill in the survey”. Upon becoming aware of this, the claimant failed to take adequate steps to remedy the situation.

A disciplinary hearing found that his failure to act was “tantamount to gross misconduct” and so he was summarily dismissed. He brought a claim for breach of contract (i.e., that his employer was not permitted to terminate his employment summarily, without notice, and that he was therefore entitled to notice pay).

Often a failure to act will not on its own be sufficiently serious to justify summary dismissal for gross misconduct. However, as the claimant held a senior post and was in charge of implementing the Talkback Procedure in his region, his inactions had so undermined the trust and confidence of the employment relationship as to justify Sainbury’s termination of his employment without notice.

What Should Employers Do Next?

Gross misconduct can take many forms, and it is not necessarily just the conduct that is set out in an employer’s handbook (although employers can be helped or hindered in equal measure by such a list in a misconduct policy, e.g., if termination is for some reason not on such a list). Employers should not be overly prescriptive but should instead have regard to all the circumstances, including the employee’s seniority and whether or not it is plainly obvious that the conduct complained of is something which the employee should not have done. Recording a full justification of why the decision was reached would also assist the employer, particularly if termination is to be without notice.