In some circumstances, yes, say the Court of Appeal in Adesokan v Sainsbury's Supermarkets Limited. In a claim for wrongful dismissal, it was determined that the claimant's failure to act was sufficient to amount to gross misconduct, justifying summary dismissal.
The facts of the case
Mr Adesokan had been employed by Sainsbury's for more than 26 years by the date of his dismissal, latterly as Regional Operations Manager, a senior position within the company. In his role, he worked with a Human Resources Partner, Mr Briner.
In evidence, it was accepted that one of Sainsbury's key philosophies was its staff engagement process, known as Talkback Procedure ("TP"). This TP was found to be "deeply engrained in Sainsbury's culture and is a critical part of Sainsbury's strategy for achieving a desirable working environment". It also influenced other matters, including pay, bonus and staff deployment.
In an apparent attempt to manipulate his area's scoring, Mr Briner emailed several store managers to encourage them to ensure their "most enthusiastic" employees completed the TP. Whilst not responsible for the email or complicit in its drafting, Mr Adesokan became aware of it, and did nothing to contradict the request or remedy the situation.
The email was anonymously sent to Sainsbury's CEO, who then passed it to appropriate management to commence a disciplinary process. Further to the process, Mr Adesokan was guilty of gross misconduct due to gross negligence, namely his failure to take adequate steps to remedy the manipulation of the TP procedure.
A wrongful dismissal claim was raised, but was unsuccessful, it being held that negligent dereliction of duty could amount to gross misconduct in the circumstances.
The court's decision
The Court of Appeal considered a number of arguments, including the submission that this wrongdoing of omission could not be considered "gross" in terms of misconduct, particularly for a long serving employee with an unblemished record.
However, it upheld the judgment. It was open to the judge to have found that the dereliction of duty was "so grave and weighty" so as to constitute gross misconduct. The TP was integral to the company's culture, and in the contract of employment and disciplinary policy, summary dismissal was permitted for breach of procedure or policy.
However, a note of caution was sounded – it was expressly stated that "it ought not readily to be found that a failure to act where there was no intentional decision to act contrary to, or undermine, the employer's policies constitutes such a grave act of misconduct as to justify summary dismissal'.
One other key element of this case to bear in mind was that it was not an unfair dismissal claim, but rather wrongful dismissal. Therefore, the courts only had to determine whether it was a permitted exercise of contractual discretion, and other statutory considerations of fairness did not come into play.
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If your business requires advice on application or drafting of disciplinary policies or contracts of employment – a key element of the finding of no wrongful dismissal in this case – please contact one of the employment team.
The small print: This blog is for information purposes only and should not be construed in any way as providing legal advice.