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Can an omission or failure to act amount to gross misconduct?

There has been a longstanding legal tension between failing to take an action to remedy a known wrong, and taking affirmative, but incorrect action. The latter has often been considered to be the greater evil, and frequently amounts to gross misconduct. When does failing to take affirmative, positive action, become as bad as committing a positive act of gross misconduct? Should the two be considered differently?

In the case of Adesokan v Sainsbury's Supermarkets Limited, Mr Adesokan was a Regional Operation Manager for Sainsbury’s, which was a senior post in the organisation.

Sainsbury’s process for assessing staff engagement was known as the “Talkback Procedure” (TP) which took the form of a staff survey. During the course of his employment, Mr Adesokan became aware that an HR Manager had sent an email undermining the integrity and validity of the TP process by encouraging store managers to ensure that only their “most enthusiastic colleagues fill in the survey”. 

As Regional Manager, Mr Adesokan was responsible for ensuring the successful implementation of the TP in his area.  Upon becoming aware of the email suggesting the TP was flawed, Mr Adesokan failed to take adequate steps to remedy the situation. Sainsbury's CEO was anonymously sent a copy of the email. 

Sainsbury’s were none too pleased with Mr Adesokan and considered he ought to have done something to remedy the obvious wrong and he was dismissed. The dismissal letter stated that, "You were accountable for Talkback in your region…You were aware that your HR partner had communicated…in a way that deliberately set out to manipulate…You failed to take any adequate steps to rectify this serious situation…it is my belief that these demonstrate gross negligence on your part ".  The disciplinary hearing found that his failure to act was “tantamount to gross misconduct” and he was summarily dismissed.

Mr Adesokan brought a claim for breach of contract (i.e. that his employer was not permitted to terminate his employment summarily, without notice, and that he was therefore entitled to notice pay). The question for the judge in the High Court was whether Mr Adesokan had committed gross misconduct and, if so, whether it justified summary dismissal under the contract.

The judge found that Mr Adesokan's omissions amounted to gross misconduct which seriously damaged the trust and confidence in Mr Adesokan. Despite the fact that Mr Adesokan had been neither wilful nor dishonest, the judge concluded Sainsbury’s could not be obliged to continue to employ him and so his dismissal was lawful. 

Often a failure to act will not on its own be sufficiently serious to justify summary dismissal for gross misconduct. However, as Mr Adesokan held a senior post and was in charge of implementing the TP in his region, his inaction had so undermined the trust and confidence of the employment relationship as to justify Sainsbury’s termination of his employment without notice.

What does this mean for you or your business?

This case shows that employers may be able to summarily dismiss employees without being in breach of contract for gross negligence. However, cases where this can happen will likely be the exception rather than the rule.

What do you need to be doing now?

When considering the likely sanction, employers should not be overly prescriptive in reliance on any particular policy or handbook, but should instead have regard to all the circumstances, including the employee’s seniority and whether or not it is plainly obvious that the conduct complained of is something which the employee should not have done. As with this case, failing to act and right a wrong, may now be considered as doing wrong in the first place.


These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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