Can gross negligence amount to gross misconduct?

When we advise SMEs that are contemplating steps which might lead to the termination of an employee’s employment, one of the first steps is to establish one of the “potentially fair reasons” for dismissal. As most readers will know they are (1) conduct or misconduct, (2) capability or performance, (3) redundancy, (4) to avoid breaking the law (e.g. a driver losing their licence) and (5) the sweeping-up provision referred to as “some other substantial reason” (section 98(2) Employment Rights Act 1996). Capability or performance is normally broken down further to separate dismissals for incapacity (such as by reason of extended sickness absence) from poor performance (such as a failure to improve to an acceptable standard having been placed on a performance improvement plan).

Normally it is important to decide the basis on which to proceed from the outset since, otherwise, it is unlikely that it will be possible to show that a fair procedure was followed. However, there are exceptions and an example can be found in the decision of the Court of Appeal in Adesokan v Sainsbury’s Supermarkets Limited.

Mr Adesokan was accused of undermining the Sainsbury’s “Talkback Procedure”. This is a long-established scheme whereby staff are encouraged to be engaged, motivated and to take pride in their work. It also provides a means of quantifying and assessing the level of engagement of staff. As part of the process participating staff are able to provide information in strict confidence concerning other staff and, particularly, line and senior managers. Results of participation in the process can affect performance progression as well as influencing decisions concerning, pay, bonuses and staff deployment. It would be fair to say that it is at the heart of Sainsbury’s personnel procedures.

In June 2013 Mr Adesokan was working with a human resources partner, Mr Briner. Mr Briner sent what is described in the judgment as a “wholly inappropriate email” to the managers of five stores, which included the following:
Here is our opportunity to show everyone how amazing we are at colleague engagement….

I think you should focus predominantly on getting your most enthusiastic colleagues to fill in the survey; using your huddles and briefings as a way of engaging these people. Slightly different to other years 100% completion is less important as long as you have a completion rate above 60% you will get a well-rounded view of your store.

So focus on the Colleague Engagement Index questions and less on 100% completion; let us know how it goes and please do ask us for any help and guidance!
It appeared that the email was sent by both Mr Adesokan and Mr Briner but it turned out that it was sent only by Mr Briner and Mr Adesokan knew nothing about it. It was sent to coincide with the commencement of the Talkback Procedure. Judge Gore QC, sitting in the High Court, observed that the email offended the philosophy of the Procedure and was likely to compromise the results.

Mr Adesokan became aware on 24 June that the email had been sent. He asked Mr Briner to clarify what he meant with the store managers. He didn’t do so and Mr Adesokan did not follow up his enquiry. By 1 July Mr Briner had still not responded to the request for clarification but Mr Adesokan did not report or seek to remedy the problem. In fact, he did nothing at all about it. However, someone else sent a copy of the email to Sainsbury’s CEO on 13 September and he commenced an investigation. The upshot was that Mr Adesokan was summarily dismissed on 25 October. The reasons given were as follows:
You were accountable for Talkback on your region, the key colleague satisfaction metric.

You were aware that your HR partner had communicated to stores in a way that deliberately set out to manipulate the Talkback scores on your region.

You failed to take any adequate steps to rectify this serious situation.

Together, it is my belief that these demonstrate gross negligence on your part which is tantamount to Gross Misconduct.
Mr Adesokan commenced High Court proceedings for wrongful dismissal, on the basis that what he had done did not constitute gross misconduct.

Another reminder of the need to apply correct procedures

The judgment of the Employment Appeal Tribunal in the case of Mrs B Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust concerns the standards to be applied when carrying out a disciplinary investigation and whether failure to follow procedures can of itself render a dismissal as unfair.

Mrs Barbara Tykocki worked for the Trust as a Healthcare Assistant from August 1989 until she was summarily dismissed for misconduct on 15 September 2014. The dismissal resulted from an incident during a night shift on 3-4 February 2014. A patient complained that Mrs Tykocki had been abusive to her and had effectively assaulted her when she asked for morphine to manage her pain. The patient alleged that Mrs Tykocki had put her hand over her face and told her to shut up. Mrs Tykocki, having denied the allegations, was suspended pending an investigation. The investigation noted two similar previous complaints from patients about Mrs Tykocki and concluded that the latest even had probably occurred as described by the patient. A disciplinary hearing followed on 12 August during which Mrs Tykocki’s union representative suggested that the patient might have been hallucinating. The hearing was adjourned to allow for further investigations in this regard. The hearing reconvened on 3 September by which time the patient had confirmed her earlier statement. A decision was made to dismiss Mrs Tykocki and this was confirmed to her in a letter sent on 15 September. An appeal against the decision to dismiss was unsuccessful.

Mrs Tykocki presented a complaint of unfair dismissal and the tribunal accepted that the incident on 3 February was the basis for her dismissal, was related to conduct and that is was potentially fair.

The tribunal then considered whether the Trust had carried out a reasonable investigation. It concluded that the enquiries made were adequate, that failure to provide all relevant documents to Mrs Tykocki and her representative this was an innocent error and the documents merely confirmed what was apparent from those that were disclosed. It also determined that the Trust was entitled to conclude, following investigations, that there was no evidence that the patient was hallucinating. The tribunal had reasonable grounds for its belief that there had been misconduct and the decision to dismiss was within the range of reasonable responses available to a reasonable employer. Mrs Tykocki appealed.

a confection of cases

In Carmelli Bakeries Ltd v Benali the Employment Appeal Tribunal considered a case where a baker, Mr Benali, claimed unfair dismissal and victimisation when he was dismissed for using non-kosher jam in his work for a kosher bakery – which was gross misconduct. Mr Benali had worked for the bakery since 2004 and had an unblemished record until 2011. However he had made disability related claims and had a lengthy period off work in 2008 when he was suffering from sciatica.
There was no doubt that he had knowingly used the jam. He had arranged for two (non-kosher) jars to be bought from the local Tesco store when the regular supply ran out. However an Employment Tribunal found that this was not the “operative cause” of his dismissal. The “real” reason for his dismissal was that he had earlier made a disability discrimination claim against his employer. Mr Benali lost any right to notice pay because of his admitted gross misconduct but was successful in both his other claims before an employment tribunal. He was awarded £35,567 which included a basic award, a compensatory award based on one year’s loss of earnings under the Employment Rights Act and an award of £14,000 for injury to feelings under the Equality Act. The Employment Appeal Tribunal upheld these findings. Consequently, although it seemed that the employer had the most clear cut of cases to justify dismissal for gross misconduct, this was undermined by what the tribunal regarded as the real reason of discrimination. Mr Benali felt that he had been regarded as a “problem employee” singled out for “special scrutiny” and, ultimately, the tribunal agreed. However, the Employment Appeal Tribunal did allow an appeal by the bakery owners on one ground; remarkably, no consideration had been given to any deduction for contributory conduct, and this was an error. The case was therefore sent back to the tribunal to consider the point.
Continuing the cakes and confectionery theme, Park Cakes Ltd v Shumba & Ors provides a useful summary of the typical factors to be looked at when deciding whether a particular benefit (in this case an enhanced redundancy payment) has become a contractual term.

does a finding of gross misconduct always justify dismissal?

It may seem an obvious reply. Surely gross misconduct, once established, has destroyed the employment relationship at such a fundamental level that it cannot realistically continue.

The question was considered by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust. Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital. Pursuant to the terms of her contract she was entitled to have a session of private patients in addition to her NHS patients. She commenced a period of sickness absence on 13 March 2009 which, apart from one day, continued until 8 June 2009. Her employer suspected that she was continuing to see private patients while she was certified unfit to work and in receipt of full contractual sick pay. Disciplinary proceedings were commenced accordingly.

Ms Brito-Babapulle accepted during the disciplinary proceedings that what she had done was wrong although she maintained that she did not think so at the time of the wrongdoing. She had received two prior notifications that if certificated sick she should not work in private practice. She claimed not to recall the notifications but her evidence on this point was rejected both in the disciplinary proceedings and the subsequent tribunal. It was concluded in the disciplinary proceedings that there had been gross misconduct. Alternatives to dismissal were not seriously considered in light of the breach of trust. Taking into account her experience she should have known better. She appealed against her dismissal and the appeal was not upheld.

The Tribunal which followed considered whether dismissal was justified:

On the facts decided by and known by the Respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The Respondent was entitled to find that the Claimant’s actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the Claimant had been told in 2007 about this very same conduct; that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.