Supermarket worker dismissed for harassing colleagues after brain injury was discriminated against, tribunal rules

Judge found it unreasonable that ‘obvious’ health details were not considered during the investigation

Supermarket worker dismissed for harassing colleagues after brain injury was discriminated against, tribunal rules

A shop worker who suffered a head injury was discriminated against and unfairly dismissed after he made inappropriate remarks towards his colleagues, a tribunal ruled. 

The Norwich tribunal heard that Mr Kelly had allegedly called a colleague at Sainsbury’s a “whore” and “b**ch” and had groped her at work. But Kelly said he was not aware of his behaviour, which he said was a result of a head injury from a traffic accident.

Judge M Warren acknowledged the supermarket needed to act on Kelly’s behaviour or risk facing a sexual harassment claim, but said the firm had knowledge of his disability caused by the accident and “chose to ignore it”, and as such did not act proportionally when it dismissed him.

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Kelly had been an employee at Sainsbury's Supermarkets since March 2000, first as a trainee manager before being promoted to duty manager in 2002.

In May 2004, he was involved in a serious road traffic accident which left him with a head injury. On returning to work, he struggled with training and, during a meeting in November 2008, concerns were raised about his performance, which Kelly said at the time were related to issues with his memory after the accident.

Between his return to work and the incident that led to Kelly’s dismissal, there were a number of incidents where he was said to have insulted female colleagues. One incident in 2010 led to a disciplinary process that resulted in a warning, and during the hearing Kelly said that his behaviour had changed since the accident.

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Kelly received a referral in December 2010 from Jobcentre Plus for specialist psychiatric advice and, in November 2011, a full neuro-cognitive assessment found some of his behaviour “may be partially accounted for as a consequence of a past head injury and associated hidden difficulties”.

On 17 April 2020, Sainsbury’s received another complaint about Kelly’s conduct from a female employee who alleged Kelly had called her “b**ch” and “whore”, groped her and rubbed her shoulders. The local store manager interviewed a number of people, including Kelly, who described allegations as “petty and immature”.

On 15 May, Kelly was informed that no further action would be taken but that the investigation would remain on his record.

However, on 21 June, the complainant made a call to Sainbury’s whistleblowing hotline and appealed the outcome of the investigation. Her appeal was upheld and on 2 July, Kelly was suspended pending an second investigation into the allegation of sexual harassment. 

Mr Hunter, a store manager from another location, led the second investigation, conducting a series of interviews with the complainant, Kelly and 13 witnesses between 11 and 22 July. The witnesses made complaints of inappropriate behaviour going back a number of years, including inappropriate touching and remarks.

During Hunter’s interview with Kelly on 22 July, Kelly struggled to remember many of the alleged events and, at the end of the meeting, said that he was not aware of his behaviour.

A disciplinary hearing was held on 31 July, and Kelly was dismissed after the hearing chair ruled out the possibility of a final written warning because of the “risk of the incidents happening again”.

Kelly appealed his dismissal on 18 August. During the hearing, which consisted of two meetings, his father, who was in attendance, explained that if Sainsbury’s looked at Kelly’s file, “they would see that he is disabled”. Kelly added that, since his car accident, he had struggled to remember anything.

However, the appeal upheld Kelly’s dismissal on the basis that it was unreasonable to expect those who conducted the second 2020 investigation to know about a car accident in 2004. 

Judge Warren acknowledged that, if Sainsbury’s had not acted on the complaint made in 2020, the supermarket would have likely faced a successful complaint of sex discrimination and harassment.

However, the judge said, the supermarket “did not appear to even consider the possible (in our view obvious) impact of Mr Kelly’s injury on his behaviour”, and that a proportionate approach, such as seeking an update of the medical evidence it already held on file, would have explained the effects of his head injuries and what steps could be taken to prevent behaviour.

The claim of unfair dismissal also succeeded on account of procedural failings, including that Kelly was shown some statements but not allowed to keep them, and was not provided with meeting notes until after his dismissal. 

A claim of wrongful dismissal in breach of contract failed.

Dave Ward, partner in the employment team at Blacks Solicitors, said the case highlighted the importance of running a good investigation. “The message to employers here is, get the basic investigation and procedural steps right and apply your mind to all reasonable evidence and all relevant factors, when making such an important decision,” he said. 

Ward explained that careful consideration needed to be paid to employee relations and HR processes and, wherever there is evidence of relevant injury or illness on an employee’s file, employers should commission an up to date occupational health report.

In this instance, Sainsbury’s “failed to conduct a thorough review of its HR file and ask itself ‘is there anything causing this behaviour that we ought to know about and take into account?’,” he said

A Sainsbury’s spokesperson said: “We are an inclusive retailer and do not tolerate abusive behaviour. We are very disappointed by this judgement and are reviewing our next steps.”

Kelly could not be reached for comment. Compensation will be decided at a later date.