Adesokan v Sainsbury's Supermarkets Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice David Richards,Lord Justice Longmore |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWCA Civ 22 |
| Docket Number | Case No: A2/2015/2720 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2017 |
[2017] EWCA Civ 22
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH JUDGE GORE QC
HQ14X01477
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Elias
and
Lord Justice David Richards
Case No: A2/2015/2720
Ms Daphne Romney QC (instructed by PJH Law) for the Appellant
Mr Sean Jones QC (instructed by TLT LLP) for the Respondent
Hearing date: 13 December 2016
Approved Judgment
Mr Adesokan was employed by Sainsbury's for some 26 years before he was summarily dismissed for gross misconduct. At the time of his dismissal he was a Regional Operations Manager, one of the more senior posts in the company, and was responsible for twenty stores. He sued for wrongful dismissal. The question for the court was whether he had committed gross misconduct so as to justify summary dismissal. HH Judge Gore QC, sitting as a Deputy Judge of the High Court, held that he had and that the summary dismissal was therefore lawful. Mr Adesokan now appeals that finding.
The facts
The background was set out in detail in the decision below but for the purposes of the appeal the relevant facts can be stated more briefly.
The heart of the case against the appellant is 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.
TP is the process whereby the level of engagement of Sainsbury's staff is quantified and assessed. It is deemed to be very important that all members of staff throughout the country are involved in the exercise, giving information in absolute confidence about their working environment and their relationships with their colleagues, especially line and senior management. The process has been operating for many years. It is, as the judge accepted, deeply engrained in Sainsbury's culture and is a critical part of Sainsbury's strategy for achieving a desirable working environment. Moreover, it is not just a procedure for determining the level of staff engagement; the results also influence performance progression, target setting and even decisions about pay, bonus and staff deployment.
The judge found that the appellant, like all managers, would have been "under no illusion that Talkback must not be interfered with or influenced by management." Great emphasis is placed on the integrity and validity of the process to ensure that the feedback genuinely reflects the full range of staff views.
The alleged misconduct
As a Regional Operations Manager, the appellant worked alongside a Human Resources Partner, Mr Briner. In June 2013 about a third of the stores were involved in the TP exercise then being undertaken. Mr Briner sent a wholly inappropriate email to five relevant store managers under the appellant's jurisdiction in which he said this:
"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!"
The email was ostensibly sent by the appellant and Mr Briner jointly, although in fact it is accepted that at the time the appellant knew nothing about it. The email was sent via a time delay function so as to be received on the day the TP began, which was 17 June. As the judge observed, the advice conveyed in the email offended the philosophy of Talkback and risked compromising the results. The appellant ought to have appreciated that fact. It sought to distort the true position in the stores by focusing on the views of the more committed staff members.
The appellant became aware that the email had been sent out on 24 June when the TP still had ten days to run. He told Mr Briner to "clarify what he meant with the store managers". Mr Briner did not do this and the appellant did not check to ensure that he had done so. Indeed, the offending email was re-circulated twice as part of a chain of emails.
By 1 July, when the TP was still running, the appellant learnt that Mr Briner had not followed his order to clarify the email. But he did nothing to remedy the problem. He failed to contact the store managers themselves, who were directly answerable to him, to contradict the approach suggested by Mr Briner, nor did he alert more senior management to what had occurred.
Sainsbury's CEO was anonymously sent a copy of the email on 13 September. He caused an investigation to be carried out by the appellant's line manager which led to disciplinary charges being instigated against the appellant. It was eventually accepted that the appellant was not complicit in any way with Mr Briner.
On 25 October, at the conclusion of the disciplinary process, the appellant was told that he was being summarily dismissed and the reasons for that decision. He was subsequently sent a formal letter notifying him of the decision which succinctly explained the reasons for the finding of gross misconduct as follows:
"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 question for the judge was whether the appellant had committed gross misconduct and if so, whether it justified summary dismissal under the contract.
The terms of the contract
Clause 4 of the contract states that an employee will be dismissed without notice if he commits gross misconduct. There is no definition of gross misconduct as such in the contract itself, but the Company's Disciplinary and Appeals policy, which is incorporated into the contract by clause 18 of the contract, provides a very general definition of gross misconduct which is in the following terms:
"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."
This refers to the term of trust and confidence which is implied in all contracts of employment. It is to the effect that neither party will, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence: see Malik v BCCI [1998] AC 20 p.45 per Lord Steyn.
The judge found that although the appellant was not dishonest and had not made a conscious decision not to take steps to eliminate the effects of Mr Briner's email, nonetheless his failure to take active steps to remedy the situation amounted to gross misconduct. The judge gave his reasons as follows:
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 …"
The judge then noted that the evidence was that in fact, notwithstanding the email, the results from the stores did not lack integrity and it was decided that it was not necessary to carry out the exercise again. He rejected an argument that this mitigated the gravity of the misconduct:
"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;...
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