Sainsbury’s staff survey case confirms serious negligence may amount to gross misconduct

Partner Paul Maynard

Sainsbury’s Supermarkets Ltd was entitled to dismiss an employee for gross misconduct after he failed to take sufficient action to preserve the integrity of a staff survey, the Court of Appeal has confirmed.

Sainsbury’s introduced a procedure for staff to provide comments in confidence about their work and managers. The appellant employee, a regional sales manager for Sainsbury’s, worked alongside a human resource (HR) partner. In June 2013, the HR partner emailed five store managers under the appellant’s jurisdiction, encouraging them to get their most enthusiastic employees to complete the survey. This, of course, was contrary to the ethos of the scheme and risked compromising the results.

The appellant told the HR partner to clarify what he meant to the store managers. The HR partner did not do this, and the appellant did not check to see if he had. The appellant then learnt that this had not been done but did nothing to remedy the issue. The matter was anonymously reported to Sainsbury’s, which summarily dismissed the appellant after a disciplinary process. He brought a case for wrongful dismissal, which was rejected at first instance.

He then appealed, arguing firstly that because of his long and unblemished service record and the fact he was not responsible for sending the email, he could not be dismissed for a single act of negligent wrongdoing. Secondly, he submitted that even if an act of gross misconduct had occurred, under his contract with Sainsbury’s he could not be dismissed for that type of gross misconduct. Thirdly, he argued that the judge had not been entitled to find that there had been a serious breach of policy or procedure as his conduct had not amounted to a breach of the survey’s procedure.

His appeal was rejected. The court held that once the appellant realised the integrity of the staff survey was being undermined, or at least was at risk of being undermined, he had a duty to ensure that this was remedied. The step he took, of asking the HR partner to clarify the situation, was insufficient, particularly after he knew his instruction had been ignored but did nothing further about it. This failing constituted gross misconduct, as it undermined the trust and confidence of the employment relationship.

In considering the appellant’s second contention, the court found that the contract did not preclude a finding of gross misconduct. Finally, the judge had not been wrong to find that the appellant’s conduct constituted a serious breach of policy or procedure. Even if there was not a direct breach, an act that undermined the operation of a policy or procedure did constitute a breach. At any rate, the appellant’s conduct had been a serious breach of the standards expected of him and therefore constituted gross misconduct under the Sainsbury’s disciplinary and appeals policy.

Expert employment solicitors in Eastbourne, Hailsham, Bexhill and Hastings

For expert legal advice on this or any other area of employment law please contact Gaby Hardwicke Employment Law Services Partner Paul Maynard (pictured) at or 01323 435900.

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