24 January 2017
The Claimant in this case had been employed by Sainsbury’s for around 26 years before being summarily dismissed for gross misconduct. At the time of dismissal he was a Regional Operations Manager, one of the more senior posts in the company. He was responsible for 20 stores. The Claimant’s claim was for wrongful dismissal. This is different from unfair dismissal. Wrongful dismissal is a claim in essence for breach of contract. The question for the court was whether the Claimant had committed gross misconduct so as to justify summary dismissal (and thereby deprive him of sums otherwise due to him under his contract).
The Judge at first instance held that the Claimant had committed gross misconduct and that his summary dismissal was therefore lawful (and the Claimant received no damages).
The case involved an internal employee engagement procedure predicated upon the belief that having staff who are more engaged, motivated and who take pride in their work will lead to improved customer service which in turn leads to happier and more loyal customers.
The Claimant worked with an HR partner. The HR partner had attempted to influence the outcome of the procedure and distort the reality by trying to focus on certain more committed staff members. The Claimant learned about what the HR consultant had done and did nothing to remedy the position. It was ultimately accepted that the Claimant was not complicit in any way with the HR partner but he was dismissed because he “was aware that the HR partner had communicated to stores in a way that deliberately set out to manipulate the scores” and he “failed to take any adequate steps to rectify this serious situation”. The Respondent concluded that together the actions (or inactions) demonstrated gross negligence “which was tantamount to Gross Misconduct".
The question for the Court was whether the Claimant had committed gross misconduct and if so, whether it justified summary dismissal under his contract of employment.
The disciplinary policy defined gross misconduct as “a breach of our standards or rules that is so serious that it can lead to summary dismissal when you are dismissed immediately without notice". There were examples of what could amount to gross misconduct, such as breach of health and safety rules. The final example in the list was "any other serious breach of procedure or policy that leads to a loss of trust and confidence".
The judge at first instance found that although the Claimant was not dishonest and had not made a conscious decision not to take steps to eliminate the effects of the HR partner’s actions, the Claimant’s failure to take active steps to remedy the situation amounted to gross misconduct and justified his summary dismissal given the facts. All trust and confidence had been destroyed. The judge concluded that the Claimant was in serious dereliction of his own duty to the company, given his obligation to ensure that the process was properly carried out.
The Appeal Court noted that "whether misconduct justifies summary dismissal of a servant is a question of fact… There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.'
The Appeal Court accepted that while dishonesty and other deliberate actions which poison the relationship will obviously amount to gross misconduct, in an appropriate case so can an act of gross negligence.
The question for the judge at first instance was whether the negligent dereliction of duty in this case was "so grave and weighty" as to amount to a justification for summary dismissal. The Appeal Court confirmed that it was open to the judge at first instance to hold that the Claimant was himself guilty of gross misconduct. The Claimant was a Regional Manager and as such responsible for ensuring the successful implementation of the process in his region. He was not the person who would carry out the exercise but once it became known to him that the integrity of the process was being undermined or at least was at risk of being undermined, it was his duty to ensure that this was remedied. The Appeal Court found that the Claimant ought to have taken positive steps to remedy the situation. His failure to do so amounted to a serious dereliction of duty which amounted to gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship.
This case is a useful reminder that each case should be considered on their merits. Sometimes senior staff will be under an obligation to take positive steps to protect the employer’s position and a failure to do so could itself result in disciplinary action, and potentially a fair (and lawful) dismissal. Dealing with such issues can become complex. Speak to your BTO expert for a helping hand.
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.