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Gross misconduct and being sacked for doing not a lot

Gross misconduct is easy for employers to spot right? It hits you between the eyes. It’s fighting or being drunk or work or stealing from your employer. There are no grey areas here. Or are there?

No notice

You would think that being sacked for gross misconduct happens in only the most serious of cases given that the result of an employee being found to be guilty of misconduct is immediate dismissal without notice or payment in lieu of notice. It is the ultimate sanction an employer has in its armoury.

Gross negligence

The recent case of Adesonkan v Sainsbury’s stretched the boundaries of what is gross misconduct and found that a failure to act by a senior manager was serious enough to be gross negligence which was gross misconduct. Mr Adesokan’s long service (26 years), unblemished record and the fact that he did not intentionally flout company policy did not save him from dismissal on the spot.

So what did Colin Adesokan do or rather not do? His grave mistake consisted largely of doing not a lot.

Sainsbury’s has a Talkback Procedure. This procedure was said to be deeply ingrained into the Sainsbury’s culture and influences pay and bonus. When Spencer Briner, a HR manager, attempted to rig the procedure by sending an e-mail to several store managers encouraging them to ensure that their most enthusiastic employees “talked back” which would reflect well on Colin Adesokan’s region, a problem arose.

Colin Adesokan did not send this e-mail but he was implicated in it as it was signed off “good luck Spencer and Colin”.

Failure to act

What followed was that Colin Adesokan did not do enough to put things right in the view of the Court. He e-mailed Spencer Briner to ask him to get back in touch with managers to clarify what he meant by his e-mail but he didn’t follow up on this and Spencer Briner did nothing. It did not matter that other managers said they were not influenced by the e-mail.

There was found to be a serious dereliction of duty by Colin Adesokan. Sainsbury’s argued that trust and confidence could never be restored after this. The Court accepted that. A sad end to Colin Adesokan’s long service at Sainsbury’s.

Not all cases where there is a failure to act will justify a gross misconduct finding but this is clearly an employer friendly case and it challenges the concept of gross misconduct as we knew it.