REWARD INSIGHT
Summary dismissal, fair dismissal, indirect discrimination
Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases
Adesokan v Sainsbury’s Supermarkets Ltd The Court of Appeal have considered whether a failure to act or gross negligence can be classed as gross misconduct capable of justifying a summary dismissal. The respondent ran an internal initiative called the ‘talkback procedure’. This procedure assessed the level of staff engagement and the results used to make decisions about pay, bonus and staff deployment. The procedure was critical to the respondent’s culture and all managers were aware of the emphasis placed on the integrity of the process and that results should not be influenced or interfered with by managers. The claimant was employed as a regional operations manager and worked alongside a human resources (HR) partner. The claimant had worked in the business for over 26 years. In June 2013, a third of the respondent’s stores were involved in the procedure. An email was sent by the HR
partner to five store managers telling them to focus on getting their most enthusiastic colleagues to fill in the survey rather than focusing on 100% completion. The claimant became aware of the email at a later date when there were still ten days left to run in the procedure. The claimant told the HR partner to clarify what he meant with the store managers. The HR partner did not do this and the claimant did not check he had done this. The claimant later became aware that the HR partner had not followed his clarification orders but did nothing further. The respondent’s chief executive officer was anonymously sent a copy of the email in September 2013. An investigation and disciplinary process was commenced against the claimant. Although the claimant was not complicit in sending the email, he was summarily dismissed for gross misconduct; he was responsible for the integrity of the procedure and had failed to take adequate steps to address the deliberate attempt to manipulate
the process. This was classed as gross negligence which was tantamount to gross misconduct. The claimant brought a claim for wrongful dismissal. The High Court judged that the failure to take active steps to remedy the situation amounted to gross misconduct. They decided that the claimant knew, or ought to have known, that: the email breached a core part of the respondent’s operating process and philosophy; the email had the potential to affect the integrity of the results and, therefore, impact on the subsequent business decisions such as setting targets; and, that his manager would need to consider the effects of the email to determine if any action needed to be taken. It was so obvious that it ought to be reported. The claimant’s failure to stop or report the email was a serious breach of policy or procedure which so seriously damaged the trust and confidence in the claimant that the respondent could not be regarded as obligated to continue to employ him. The claimant appealed. The Court of Appeal explained that acts of gross negligence can damage the relationship between the parties and the question to be asked is whether the negligent
...entitled to find this was a serious dereliction of duty capable of constituting gross misconduct
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| Professional in Payroll, Pensions and Reward | April 2017 | Issue 29
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