A bakery assistant who claimed she was “forced” out of her department after she raised a grievance against her line manager was constructively unfairly dismissed, a tribunal has ruled.
The Edinburgh tribunal found that Mrs H Barclay – who had worked at Asda for 24 years with no “issues” – was not “sufficiently supported by management” and was “moved to another department” against her wishes.
It also found that Asda ignored “red flags” in relation to her mental health, which was determined to be caused by “occupational stressors”.
The tribunal heard that Barclay started her role as a bakery assistant at the Jewel-based Asda store in Edinburgh in 1998 and in October 2020 a colleague known as LM became her line manager.
The tribunal found that prior to LM’s appointment, Barclay had “no issues” and enjoyed her job, but that she and LM did not have a “good working relationship”. Barclay claimed LM “spoke down to her and treated her differently than everyone else”.
She raised her concerns with LM directly, and LM’s line manager, DM, on “numerous occasions” between November 2020 and March 2021, with no improvement.
On 20 April 2021, Barclay was signed off sick because of stress at work – and also suffered a bereavement during this time – and returned on 11 May, when she and LM participated in mediation to resolve their work relationship issues.
Barclay requested that LM “treat her more sympathetically and speak to her in a more professional manner and tone”, while LM said she felt if she asked Barclay to do tasks she may not “react well” to the requests. The mediation saw the pair agree to work together “civilly” and have weekly check-ins to see how the relationship was building.
But Barclay told the tribunal that LM’s attitude towards her did not change and that there was no formal follow up or weekly check-ins, aside from DM asking her “in passing” when on the shop floor.
On 7 November, Barclay raised a grievance to another management colleague, AM, stating she had been “harassed and treated unfairly” since November 2020 and that the mediation had not resolved the situation. She said there should be disciplinary action against LM.
On 9 November, Barclay was again signed off for stress at work and attended an OH meeting on 3 December, which noted that she “loved” her role at the bakery and felt that it would be “unfair” if she had to move because of LM.
On 7 December, Barclay handed her fit note to DM and said she “did not want to be off work” but felt she “could not return” while LM was in the bakery. She also said she felt “unsupported” by management since she raised concerns, and said she would be able to return to work on 21 December – and asked that her grievance meeting be held on the same day.
The grievance meeting took place on 21 December and it was proposed Barclay work in self scan for a three-week period while the grievance was investigated. Barclay told the tribunal she felt she had “little option” but to agree.
She began working in the self-scan department on 23 December and was told that if she was “feeling overwhelmed” that she could take a “timeout” in the back office area.
On 7 January 2022, Barclay was told her grievance was upheld and Barclay submitted an appeal, as she disagreed with how the grievance was handled and did not believe that Asda’s policies were used fully when making the final decision.
On 11 February there was a grievance appeal meeting, which was adjourned for further investigation. Barclay continued to work in self scan until she became unfit to work on 22 February because of stress until 1 April, and OH recommended counselling sessions.
The grievance meeting reconvened on 12 April and Barclay was told the outcome was correctly determined and that it was “not appropriate” to share if any action had been taken in relation to LM.
Barclay continued to work in self scan and understood her role at the bakery had been filled by someone else prior to the conclusion of the grievance process.
On 12 May, Barclay had a further OH review, which said she would “benefit from continuing support from management regarding her work situation” and “extra time out for breaks”. It was also agreed that she could use the “purple room” for these breaks.
On 8 August, Barclay took time out in the purple room but a manager and a colleague came in and told her she could not be in there, and needed to “get her arse out and get her work done” and return to the shop straight away.
Barclay told the tribunal this made her “extremely upset” and heightened her anxiety and that she “felt embarrassed and ashamed” for needing to use the purple room. On 9 August she was signed off sick until 22 August and upon her return raised a grievance about the colleague and manager.
Employment judge Sangster accepted Barclay’s assertion that “insufficient action” was taken in relation to her complaints about LM’s conduct. Despite the grievance ruling that LM did harass Barclay, Sangster said she was “not sufficiently supported by management during and after the grievance process; she was simply moved to a different department, contrary to her clear, and repeatedly expressed, wishes”.
Sangster also said that “no consideration was given to [Barclay] returning to work in the department she had worked in for 24 years, despite the fact that her complaint was upheld and LM’s actions were found to have been inappropriate”.
The tribunal also said the OH reports noted that Barclay did not feel supported by management and that her “symptoms of anxiety and depression were related to occupational stressors”, but that Asda took “no action in relation to these red flags”.
Barclay was awarded £8,962.30 for unfair dismissal.