Caspar Glyn QC considers the Court of Appeal’s judgment today that an employee can be summarily dismissed for negligence and that a wrongfully dismissed employee cannot normally maintain an ongoing claim for wages.
A short but important case from the Court of Appeal was released today. Given the Art 50 decision of the Supreme Court it was a good day to bury an important employment law case. It shines light on two issues – whether negligence can be enough for gross misconduct and what losses might be claimed if a dismissal is wrongful.
Mr Adesokan, was the Regional Manager. He was an accountable manager for the survey. He chose not to take steps to rectify a matter that clearly interfered with the integrity of the survey when that came to his attention.
The disciplinary procedure provided that gross misconduct was a breach of standards or rules so serious that it could lead to summary dismissal and that gross misconduct included any other serious breach that led to a loss of trust and confidence.
Mr Adesokan was summarily dismissed for gross misconduct.
At the Court of Appeal Daphne Romney QC and Sean Jones QC laid the full arguments before the Court.
Negligence is enough for gross misconduct
The Court of Appeal held that the Employment Tribunal was entitled to find this negligent omission did amount to gross misconduct. The Court set out that this is a question of fact for the Tribunal, that any determination of it is one that must depend on the facts of each individual case. The definition is not limited to either intentional wrongdoing or dishonesty – again – the Court held. It depends on the facts although the Court or Tribunal should focus on the damage to the relationship between the parties – whereas dishonesty or other deliberate actions can be gross misconduct so, too, can negligence similarly damage the relationship and warrant summary dismissal.
Mr Adesokan, was the Regional Manager. It was his obligation to ensure that the survey was conducted successfully. He chose not to take steps to rectify a matter that clearly interfered with the integrity of the survey when that came to his attention.
Damages for wrongful dismissal
Of potential more importance is that the Court of Appeal seem to shut the door, for now, on an argument many lawyers have been using for Claimants since Geys v Societe Generale  1 AC 523. Namely, if an employee is allegedly wrongfully dismissed, the lawyer or employee bangs in a letter, affirms the contract and sues for wages whilst the employee relaxes (coolly) with Netflix at home.
The strategy puts pressure and risk on the employer. It can enhance any claim as one sues for continuing wages before pursuing damages, as the cherry on the sundae of the debt claim – or at least so one hopes. It should be said that Mr Adesokan’s claim was not for wages and debt but damages although the Court did not focus on this distinction.
However, thirty six years ago a fractured Court of Appeal held in Gunton v Richmond-Upon-Thames  ICR 755 that (per Buckley LJ) where an employee accepted the termination at trial if not before and (per Brightman LJ) a wrongfully dismissed claimant, could not maintain a claim for wages under the contract but only a claim for notice. In Gunton the Court did allow the Claimant damages for the amount of time that a proper contractual disciplinary process would have taken. However, they held that an employee was only entitled to his notice period as he had ceased to discharge the obligation of work in return for the benefit of wages.
Accordingly Elias LJ said, obiter, that Gunton, was unaffected by Geys and convincingly referred to para 78 of that decision in which Lord Wilson said
“the law has been clear [since 1850] that, save when, unusually, a contract of employment specifies otherwise, the mere readiness of an employee to resume work, following a wrongful dismissal which he has declined to accept, does not entitle him to sue for his salary or wages.”
The reasoning follows Underhill LJ’s logic in the Court of Appeal in Sunrise Brokers v Rodgers  ICR 272 when Sunrise, the employer, was not obliged to give an undertaking to pay an employee who it restrained from working for others as the employee refused to continue to work for Sunrise.
Accordingly, we are left with an inconsistency from Geys that employment contracts are like all other contracts and require any wrongful repudiation to be accepted. However, per Adesokan and Gunton, it would appear, are unlike all other contracts in that when they are wrongfully determined the remedy is limited to notice provisions that would only have applied on lawful termination.
Accordingly, Claimant lawyers should approach Geys arguments with more caution than before. They should write compelling letters that the employment contract has not been determined giving reasons, that the claimant is ready willing and able to work, advising one’s client to go to work and offer service, to demonstrate an ongoing relationship by requesting holiday etc, asserting that wages continue to accrue (and should be sued for as a debt). They should focus on what special circumstances exist to suggest that such a relationship exists so as to argue, contra Gunton, that the remedy should be limited to a notice period. They should ensure that a favourable factual narrative to support such arguments is constructed.
Respondents should specifically refer to Adesokan. They should make it clear that there is no continuing wage work bargain, that the relationship is terminated and, if which is not admitted, the relationship is not terminated then the remedy must follow the analysis in Adesokan or Gunton in any event.
Further employers should provide an example of gross misconduct in their disciplinary procedure to include “any serious act or omission that leads to a loss of trust and confidence”.
The Court of Appeal will not review Gunton. They have expressly left it for the Supreme Court. Unfortunately, because Adesokan was determined on the first ground it won’t be soon.