19th April 2022

Two wrongs do not make a right with disability discrimination’?

Every now and then, I read an Employment Tribunal Judgement that I know will leave employers confused as to why it is when an employee’s reoccurring behaviour is so abhorrent that dismissal can be the only reasonable outcome, it can result in a successful claim being brought by that very same employee.  The case of Kelly v Sainsbury’s Supermarkets Limitedis one such case.

Mr Kelly had been employed by Sainbsury’s since 2000 and in 2004 he was involved in a serious road traffic accident which left him with a head injury. He returned to work, and between his return and his dismissal  in July 2020, not only were issues with his training and concerns about his performance raised, a number of complaints where he was said to have insulted female colleagues were made. He received a warning in relation to one incident in 2010 after he called a female colleague a “b**ch” and a “wh**e”. During the disciplinary hearing he said his behaviour had changed since his accident. In 2015, he received an informal warning for inappropriate behaviour towards a female colleague and in 2020, a complaint was made by a female employee that Mr Kelly had called her a “b**ch” and “wh**e”, groped her and rubbed her shoulders. Following an investigation, it was decided that no further action would be taken but that the investigation would remain on his file.

However, the complainant appealed the outcome of the investigation and it was upheld. Mr Kelly was suspended pending a second investigation into an allegation of sexual harassment. This in itself, is an unusual situation for an employer to deal with; reopening or conducting a new an investigation because, for example, evidence was over looked or not given sufficient weight therefore casting doubt over the outcome of the original investigation which, in this case, resulted in no disciplinary proceedings. Advice should always be taken not least to avoid a breach of contract giving rise to a constructive dismissal claim being brought by the complainant.

Sainsbury’s decided there would be a second investigation and when interviewed, Mr Kelly said he could not remember calling the complainant names and denied touching her. An anonymous letter was later received alleging that Mr Kelly had asked a colleague about her bra size, used inappropriate and explicit language and rubbed women’s shoulders. The outcome of the investigation was a decision to take no further action because there was no solid evidence. It is, of course, not uncommon for it to be a case of one person’s word against another, or to receive an anonymous complaint, but the fear for any employer is facing a constructive or unfair dismissal for relying on this type of evidence to justify a disciplinary sanction.

The complainant was unhappy with this decision and made a call to Sainsbury’s whistleblowing hotline and the investigation was reopened. In total, 13 witnesses came  forward and made complaints of inappropriate behaviour going back a number of years. Mr Kelly was interviewed and he said he couldn’t remember many of the alleged incidents and that he was not aware of his behaviour. At this stage, employer could be excused for thinking that with so many witnesses making the same allegations, a disciplinary hearing and a disciplinary sanction nothing short of dismissal was appropriate.

Mr Kelly was dismissed and he appealed. He said that “Sainsbury’s had no regard for his health and wellbeing” and said, among other things, that he still had memory problems, he had been referred to occupational health and he had  a “child-like” nature. Sainsbury’s upheld the decision stating “your behaviour was not in line with Sainsbury’s harassment or fair treatment policies which is available to all colleagues and detailed within your handbook”.

The Tribunal held that Mr Kelly’s behaviour arose as a consequence of his disability and Sainsbury’s treated him unfavourably by subjecting him to disciplinary proceedings and dismissing him. Whilst it did acknowledge that Sainsbury’s needed to act on Mr Kelly’s behaviour or risk facing a successful complaint of sex discrimination and harassment, “It is apparent on the evidence that comments and actions like these were a regular feature of interaction with Mr Kelly, which had not been the case prior to his road traffic accident. Such comments are not normal behaviour; one would have thought any person seeing that Mr Kelly behaved in this way would recognise there was something not quite right and that something must be causing him to behave that way.”

What then, should Sainsbury’s have done? The Employment Judge said, “A proportionate approach would have entailed seeking an update on the medical evidence it already held on file, either via occupational  health or going directly to the psychiatrist seeking information on the extent to which Mr Kelly’s behaviour would have been explained by his head injuries, what steps might be taken to prevent such behaviour and what chances there would have been of those steps being successful.”

The lesson here is, no matter how awful the behaviour or conduct being complained about is, the employee’s personal circumstances should never be over looked and should always be taken into account, establishing the up to date position, if necessary, before any decision is taken. This Judgement does not mean that an employer cannot dismiss an employee whose behaviour can be explained by a health condition or injury, but it is very clear that a failure to, firstly, consider the possibility, and secondly, consider the alternatives to dismissal, could result in a successful discrimination claim.

If you require any employment law advice, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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