Yes, in some circumstances, according to the Court of Appeal in Adesokan v Sainsbury’s Supermarkets.

The facts

Mr Adesokan was employed by Sainsbury’s for 26 years, latterly as a Regional Operations Manager. This was a senior role with responsibility for 20 stores.

Sainsbury’s operates a staff engagement survey called Talkback Procedure. Talkback is treated very seriously within the company, being a critical part of its strategy for achieving a desirable working environment. The results also influence performance progression, targets and decisions about pay, bonus and deployment.

Mr Adesokan worked alongside a Human Resource Partner called Mr Briner. Mr Briner sent an email to five store managers encouraging them to focus on getting their most enthusiastic employees to fill in the survey. This advice clearly had the potential to compromise the integrity and effectiveness of Talkback.

Mr Adesokan asked Mr Briner to clarify what he meant with the store managers. However, he failed to check whether Mr Briner did so and did not alert senior management directly.

Sainsbury’s dismissed Mr Adesokan for ‘gross negligence on your part which is tantamount to gross misconduct‘. He raised a breach of contract claim arguing that his actions did not amount to gross misconduct and so did not justify dismissal without notice.

The decision

The Court of Appeal agreed with the decision of the High Court that Mr Adesokan’s summary dismissal was lawful. There was no requirement to dismiss him with notice or payment in lieu of notice. The judge noted that:

  • It was not enough that Mr Adesokan had told Mr Briner to correct what had happened. He was grossly negligent by failing to take active steps to remedy the situation.
  • There was no requirement for the actions / omissions to have been dishonest or deliberate.
  • A decision on what amounts to gross misconduct will always turn on the specific facts and circumstances of the case. Here, Mr Adesokan’s seniority was an important factor in concluding that his inaction amounted to gross misconduct.
  • The gravity of the misconduct was not mitigated by the fact that, in reality, the Talkback results were not compromised.
  • The disciplinary policy had a list of examples of gross misconduct including “any other serious breach of procedure or policy that leads to a loss of trust and confidence” and “a breach of our standards and rules that is so serious that it can lead to summary dismissal“. Mr Adesokan’s dereliction of duty fell within both of these.

In practice

It is clear from the decision that gross misconduct is not limited to cases of intentional wrongdoing or dishonesty. Depending on the circumstances, gross negligence can amount to gross misconduct.

Not every negligent act, or failure to act, will amount to gross misconduct. Whether it does will depend on the individual facts including the seniority of the employee; what type of work they are doing; and whether the negligence has resulted in a loss of trust and confidence.

You should give employees ‘advance warning’ of what you will view as gross misconduct by explaining your standards of conduct in your disciplinary policy and communicating it to all employees. To include serious negligence in your examples of gross misconduct add, for example, “serious neglect of duties” and “any serious act or omission that leads to a loss of trust and confidence”.