The Court of Appeal (CA) in Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22 considered whether an employee’s failure to act constituted gross misconduct.

Mr Adesokan, a long-serving regional manager at a supermarket chain (Sainsbury’s), became aware that his HR partner had sent an email which attempted to undermine an important management consultation exercise. Despite becoming aware of this, Mr Adesokan had failed to take steps to remedy the situation. Sainsbury’s dismissed him without notice, on the basis that it viewed his inaction as gross negligence “tantamount to gross misconduct”.

The CA found that although Mr Adesokan’s inaction was not dishonest or deliberate, it was serious enough to have resulted in loss of trust and confidence in the employment relationship, which justified his dismissal for gross misconduct and without notice. The CA explained that his role involved a responsibility to ensure the proper implementation of the very procedure that the email had undermined, and thus he should have taken steps to remedy the situation. However, the CA emphasised that a court should not readily find that a failure to act, which was not dishonest or deliberate, constituted an act of misconduct serious enough to justify a dismissal for gross misconduct. Such a conclusion will always depend on the specific facts of each case.

In light of this decision, employers should ensure that they have in place well-drafted disciplinary procedures, which include a comprehensive definition of gross misconduct.