ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH JUDGE GORE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE DAVID RICHARDS
| MR COLIN ADESOKAN
|- and -
|SAINSBURY'S SUPERMARKETS LIMITED
Mr Sean Jones QC (instructed by TLT LLP) for the Respondent
Hearing date : 13 December 2016
Crown Copyright ©
Lord Justice Elias:
The alleged misconduct
"Here is our opportunity to show everyone how amazing we are at colleague engagement….
I think you should focus predominantly on getting your most enthusiastic colleagues to fill in the survey; using your huddles and briefings as a way of engaging these people. Slightly different to other years 100% completion is less important as long as you have a completion rate above 60% you will get a well- rounded view of your store.
So focus on the Colleague Engagement Index questions and less on 100% completion; let us know how it goes and please do ask us for any help and guidance!"
"You were accountable for Talkback on your region, the key colleague satisfaction metric.
You were aware that your HR partner had communicated to stores in a way that deliberately set out to manipulate the Talkback scores on your region.
You failed to take any adequate steps to rectify this serious situation.
Together, it is my belief that these demonstrate gross negligence on your part which is tantamount to Gross Misconduct."
The terms of the contract
"Gross misconduct is a breach of our standards or rules that is so serious that it can lead to summary dismissal when you are dismissed immediately without notice."
There then follows a number of examples illustrating what will constitute gross misconduct. For the most part they envisage intentional or deliberate misconduct but some of the examples, such as breach of health and safety rules, could be committed in a negligent or deliberate way. The final example in the list is
"any other serious breach of procedure or policy that leads to a loss of trust and confidence."
62. "… He either knew or ought to have known that, first, this was breach of a core part of the defendants' operating process and philosophy. People got sacked for offending it and he knew that. Secondly, he knew or ought to have known that it had the potential to affect the integrity of the results and therefore the impact that that would have on measuring performance, comparing performance, measuring changes in performance, setting performance targets and potentially also on deployment of staff. Thirdly, even if he did not adjudge it necessary to do anything about that, he either knew or ought to have known that either or both of his and Mr Briner's managers would need to consider that in order to adjudge either to agree with and support what the claimant had done or, alternatively, decide whether any and, if so, what further measures needed to be taken.
63. In my judgment, therefore, it was or should have been obvious that this needed to be reported …"
"64. In other words the offending email's potential had not been realised and the results did not lack clarity. But that is not the point; they might have. Someone had to make that judgment. That someone, if there was potential that the process had to be re-run, was not the claimant but a manager or managers superior to him and how could they make that judgment if they did not have the knowledge by matters being reported to them?
65. 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. He did not do anything on the evidence that I have heard to do so."
"69. … Although these were omissions not actions, in my judgment they did have the effect, when viewed by reference to the claimant and not simply Mr Briner, to amount to a serious breach of policy or procedure for which he had guilt by association. He failed to stop it as was his direct responsibility or to report it.
70. I cannot, therefore, accept that this was not gross misconduct and I do accept that, tested objectively, this did so seriously damage the trust and confidence in the claimant such that the defendants could not be regarded as obliged to continue to employ him. It matters not to this conclusion that I have not found the claimant to have been either wilful or dishonest. These were failures that objectively called into question the ability or willingness of the claimant to actually see to it that the core Talkback process actually operated and that its integrity was maintained."
The grounds of appeal
Was the misconduct gross?
"Whether misconduct justifies summary dismissal of a servant is a question of fact. In Clouston and Co. Ltd v Corry  AC 122, which concerned summary dismissal for drunkenness, Lord James of Hereford delivering the judgment of the Board said at p. 129:-
'Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.'
His Lordship went on to observe that
'the question of whether the misconduct proved establishes the right to dismiss the servant must depend upon facts - and is a question of fact.' "
"I am fortified in this view by the decision of the Court of Appeal in Sinclair v Neighbour  2 QB 279. Sellers LJ at p.287C said
'But whether it is to be described as dishonest misconduct or not, I do not think matters. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent - incompatible - with his duty as the manager in the business in which he was engaged.'
Davies LJ expressed views to similar effect at p.289 B
'The judge ought to have gone on to consider whether even if falling short of dishonesty the manager's conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately.' "
Lord Justice David Richards:
Lord Justice Longmore: