Maxine Orr, Partner, considers a recent Court of Appeal Case whereby an employee lost his appeal in relation to a claim of wrongful dismissal on the grounds that his contract of employment was breached by the decision to dismiss him for gross misconduct summarily and without notice.
Wrongful dismissal claims can be brought by employees on the basis that their contract of employment has been breached by the employer – in most cases these claims are limited to what an employee is entitled to under the contract of employment for example notice pay or benefits due under the notice period. A recent case by an employee of Sainsbury’s was appealed to the the Court of Appeal on the issue of whether he was wrongfully dismissed, namely was his contract of employment breached by the decision to dismiss him for gross misconduct summarily and without notice.
Mr Adesokan was employed by Sainsbury’s for approximately 26 years and at the time of his dismissal was a Regional Operations Manager working alongside the Human Resource Manager, Mr Briner. Within Sainsbury’s there existed a “Talkback Procedure” - the philosophy behind this procedure was the desire to ensure that staff should be engaged, motivated and take pride in their work as it was believed this would improve customer service which in turn leads to happier and more loyal customers.
In and around June 2013 about a third of Sainsbury’s stores were involved in the “Talkback” exercise whereby all members of staff throughout the country gave information, in complete confidence, about their working environment and their relationships with their colleagues, especially Line Managers and Senior Management. It had been a process within Sainsbury’s operating for a number of years. The Human Resource partner, Mr Briner, sent an e-mail in June 2013 which offended the philosophy behind the “Talkback” and risked compromising its results as it sought to distort the true position in the stores by focusing on the views of more committed staff members. Mr Adesokan was aware of the e-mail and its content, however he did nothing to check whether or not it had been clarified as he had advised Mr Briner to do so and he did nothing to remedy the problem. Furthermore he failed to contact Store Managers themselves who were directly answerable to him to contradict the approach suggested by Mr Briner in the e-mail, nor did he alert Senior Management to what had occurred.
The e-mail was then sent anonymously to Sainsbury’s Chief Executive Officer and an investigation was undertaken. Mr Adesokan was summarily dismissed as Sainsbury’s held that he was “accountable for Talkback in the region, the key colleague satisfaction metric and he was aware that the HR partner had communicated to stores in a way that deliberately set out to manipulate the Talkback scores in the region, that he failed to take any adequate steps to rectify this situation and this represented gross negligence on his part which is tantamount to gross misconduct”. He issued proceedings for Wrongful dismissal.
The High Court dismissed his claim agreeing that this was gross misconduct and the behaviour seriously damaged the trust and confidence in the Claimant.
The case was appealed to the Court of Appeal on the issue of whether or not the conduct amounted to gross misconduct and whether the decision to dismiss someone with such a long and unblemished service, who was not even responsible for sending the e-mail, was too harsh given it was for a single act of negligent wrongdoing.
The Court of Appeal dismissed his appeal holding that it was sufficient for the employer to dismiss without notice, if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent – incompatible – with his duty as the manager in the business in which he was engaged. The Court stated that “it is not a question of this court simply asking whether it would have held the misconduct to be gross”.
Employers should always seek specialist legal advice before taking any decision to dismiss an employee as the costs in terms of legal fees and management time can be very significant for a business.
Maxine Orr is a Partner in Worthingtons Commerical Solicitors, Belfast specialising in Employment Law.