The English Court of Appeal holds a senior manager strictly to account for negligence

As a senior manager, can you be summarily dismissed under English law for gross misconduct not as a result of deliberate or dishonest conduct but instead due to a negligent failure to act, even when this has caused your employer no loss? The perhaps surprising answer following the Court of Appeal decision in Adesokan v Sainsbury’s Supermarkets ltd is: yes you can.

As lawyers like to say, it all depends on the facts but let’s see if you would have reached the same conclusion.

An employee is told to remedy his misconduct

Mr. Adesokan was employed by Sainsbury’s for some 26 years with an unblemished service record. He was a relatively senior employee in the company. As regional operations manager, he was responsible for some 20 stores. The heart of the case against him as summarised by the Court of Appeal was that:

….by his actions, or more accurately his inactions, he undermined what Sainsbury’s call the Talkback Procedure (TP). The philosophy behind this procedure is the desire to ensure that staff should be engaged, motivated, and take pride in their work. It is believed that this will improve customer service which in turn leads to happier and more loyal customers.

In essence, TP was an employee feedback process whereby the level of engagement of Sainsbury’s staff was quantified and assessed.

The Talkback Procedure is the desire to ensure that staff is engaged, motivated, and take pride in their work

In the Court of First Instance the judge had found that the process was “deeply engrained in Sainsbury’s culture and a critical part of Sainsbury’s strategy for achieving a desirable working environment.”

The misconduct of Mr. Adesokan originated not with him but with a more junior member of his team who sent out an inappropriate email in connection with TP, suggesting that the focus should be on obtaining feedback from the “most enthusiastic colleagues” even if that meant less than 100% completion of the relevant survey.

When Mr. Adesokan learned of the email some days later he told the manager to “clarify what he meant with the store managers”. This was not done, and when he learned this, Mr. Adesokan did nothing to remedy the situation.

When the offending email later come to light, it was accepted in the subsequent disciplinary proceedings against him that:

  • Adesokan had not been complicit in the sending of it and
  • His failure to remedy the situation had not done any harm as the results from the stores had, in any event, been sufficiently robust.

Gross misconduct?

The key to this case seems to have been the importance that Sainsbury’s attached to TP

The main thrust of Mr. Adesokan’s appeal was that his conduct could not, as a matter of law, constitute gross misconduct.

Having conducted a review of the relevant authorities, and accepting that there was no evidence before the judge of deliberate or dishonest conduct, the Court of Appeal asked itself whether the judge at first instance had been right in deciding “…that the negligent dereliction of duty in this case was ‘so grave and weighty’ as to amount to a justification for summary dismissal.”

The key to this case seems to have been the importance that Sainsbury’s attached to TP. On the strength of that, the judge had concluded that the breach of procedure was a serious one. He went further, though, and said this:

The other aspect that crosses the threshold is that it is not good enough simply to tell the offender to correct. There was a failure to ensure that the correction was delivered and acted upon. The claimant was the enforcing line manager for the store manager and he had to satisfy himself that the offending e-mail had been ignored and not acted on.

In quoting this passage with approval Lord Justice Elias in the Court of Appeal put it like this:

In my view the critical feature justifying this conclusion is that the appellant, as Regional Manager, was responsible for ensuring the successful implementation of the TP 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 as a result of the email, it was his duty to ensure that this was remedied. Given the critical role which TP played in the culture of Sainsbury’s, he had to correct the message sent…. in the email, or at least take steps to ensure that this was done.

So there you have it. There may be situations in which your failure as a line manger to direct a member of staff to remedy a breach of company policy, coupled with a failure to follow up by checking that your directive has been carried out, may lead to your summary dismissal even where your employer has suffered no loss.

Those of you who follow my blog regularly will know that the theme of personal accountability of senior managers is one to which I frequently return because it is one of which politicians and regulators are so fond. Here perhaps is an example of the courts also signaling a willingness to hold senior managers to strict account for failing to act with reasonable skill and care.

About Francis Kean

Francis is an Executive Director in Willis Towers Watson's FINEX Global, where he specializes in insurance for Dir…
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