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. Judge Gore QC found that although he was not dishonest and had not made a conscious decision not to take action concerning Mr Briner’s email, nonetheless his failure to take active steps did amount to gross misconduct. He said:

He either knew or ought to have known that, first, this was breach of a core part of the defendants’ operating process and philosophy. People got sacked for offending it and he knew that. Secondly, he knew or ought to have known that it had the potential to affect the integrity of the results and therefore the impact that that would have on measuring performance, comparing performance, measuring changes in performance, setting performance targets and potentially also on deployment of staff. Thirdly, even if he did not adjudge it necessary to do anything about that, he either knew or ought to have known that either or both of his and Mr Briner’s managers would need to consider that in order to adjudge either to agree with and support what the claimant had done or, alternatively, decide whether any and, if so, what further measures needed to be taken.

In my judgment, therefore, it was or should have been obvious that this needed to be reported …

As it turned out the results were satisfactory and there was no need to repeat the exercise. According to the judge this was not a case of “guilt by association”; rather, it involved Mr Adesokan’s serious dereliction of his own duty.

Mr Adesokan’s appeal was on the basis that his conduct was not, as a matter of law, capable of amounting to gross misconduct. Alternatively, even if the conduct was capable of amounting to gross misconduct, negligent acts do not fall within the examples of gross misconduct provided by the employer and, second, there was not a “serious breach of policy or procedure”. In the Court of Appeal Lord Justice Elias gave these arguments short shrift. Although dishonesty and other deliberate actions obviously fell into the misconduct category, so could an act of gross negligence. It was open to Judge Gore QC to find that the negligence was sufficiently serious to warrant a summary dismissal. The contract did not preclude a finding of gross misconduct and the dereliction of duty could be viewed as a serious breach of policy or procedure.

It followed that Sainsbury’s was entitled “to dismiss summarily for gross misconduct”. In other words, the way round the description of gross negligence which was tantamount to gross misconduct was to say that it did, in fact, pass the threshold for gross misconduct, even though it was not dishonest, he did not take part in the preparation and sending of the email, he asked Mr Briner to do something about it and his wrongdoing was his omission in failing to do so.

I have to say that, while the reasoning is perfectly sound, it is my view that Sainsbury’s were lucky to get the decision that they did. Significantly, it was a wrongful dismissal (i.e. breach of contract) claim rather than an unfair dismissal claim and the latter could well have failed on procedural grounds in an employment tribunal.