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Failure to act can, in certain situations, amount to gross misconduct.

06 February 2017 #Employment

In Adesokan v Sainsbury’s Supermarkets Ltd, the Court of Appeal upheld a High Court decision that a failure to act can, in certain situations, amount to gross misconduct.

Mr Adesokan (A), a Regional Operations Manager, became aware that a HR Partner had sent an email to store managers suggesting ways they may influence the results of the company’s ‘Talkback’ staff survey.   He asked the HR Partner to clarify what he meant with the managers but did not check that the HR Partner did this and, upon learning this had not been done, did not do anything about it himself or alert senior management.  He was subsequently dismissed for gross misconduct and claimed wrongful dismissal. 

The High Court held that even though A’s inaction was not deliberate, his negligence had seriously damaged the company’s trust and confidence in him and did amount to gross misconduct.  A appealed.  

The Court of Appeal agreed with the High Court.  Whilst it did comment that it will be rare for gross misconduct to be found where there is a failure to act without an intentional decision; as a matter of law, gross negligence can amount to gross misconduct.  Here, A’s seniority justified the dismissal. 


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