A supermarket assistant who was ignored by managers when he complained that his boss falsely imprisoned him was discriminated against, a tribunal has ruled.
The Watford employment tribunal found Mr T King, who worked as a customer assistant at Tesco, suffered discrimination after managers failed to comprehend that he, as a 6ft tall man, could be intimidated by his manager, a 5ft 4in pregnant woman.
Tesco bosses had also failed to take into account the fact that had experienced a relapse in his pre-existing post-traumatic stress disorder (PTSD).
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The court found that managers were swayed by stereotypical “instinct” that a big man would not be bothered by a small woman and ruled they would “not have made that presumption if the claimant had been a woman”.
A further claim of direct sex discrimination and harassment related to sex was dismissed.
King worked at Tesco in Aylesbury, Buckinghamshire on a flexible contract from 18 November 2017 until his dismissal on 2 March 2019 for being “absent without leave”.
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Because of the nature of his contract, King was expected to work additional hours agreed by his manager, and the terms and conditions of his employment required him to maintain the flexibility specified. King also had another job with Aylesbury Fire Service alongside studying to be an electrician.
The tribunal heard that on 19 December 2018, King said his line manager, known as JF, had “berated” him for being inflexible about offering additional hours in the run-up to Christmas. He told the tribunal this accusation was a “smack in the face” because he felt he had been as flexible as he could be.
The tribunal found that while JF was “within her rights” to ask him for additional hours as a flexible worker, she was “not listening” to him when he explained about his other commitments. Some time after the exchange, JF, who was five months pregnant at the time, invited King to the staff search room to discuss his attitude to working additional shifts.
King had previously made his managers at Tesco aware of his PTSD, which was triggered by an incident at his former job with the Prison Service where he was held hostage. JF had meetings with him in 2018 about his absences following a change in medication for his condition.
King told the tribunal that during the discussion, he told JF that he felt uncomfortable staying in the room with her and that he was leaving. But as he opened the door to leave, she put her shoulder, hands and a foot against the door to prevent him from doing so.
The tribunal reviewed the CCTV images and said the way King “squeezes” out of the door is consistent with him having become “increasingly anxious and borderline desperate to get out of the room”. It also found that JF put her hand on King’s arm as he was trying to leave and was “still holding on to him” as he moved himself through the partially open door.
Following the incident, King attended a meeting with JF and two other unnamed managers. He did not raise a formal grievance, but did complain directly to those managers of false imprisonment by JF. He also linked JF’s actions to being held hostage at his previous job.
The tribunal found that given the terms King used, it was not unreasonable for him to expect the managers to “take some action” without him making a formal grievance.
The managers ignored King’s allegation without viewing the CCTV, with one telling the tribunal that he “could not see a smaller person who is heavily pregnant making robust contact with King or acting aggressively or in an intimidating manner”, adding that he believed she would have avoided such contact “at all costs” to protect her baby.
The tribunal said that the managers dismissed King’s account as “implausible” because they presumed JF, as a pregnant woman, would “not have behaved that way”. It said one manager in particular did not take King’s complaint seriously because he was “influenced by relative size”.
King was signed off work on 6 February 2019 because of a relapse in his PTSD – he told a manager he couldn’t leave the house “without crying [and] being anxious”. When his sick note expired on 13 February, King claims he spoke to a Tesco manager about his ongoing absence and delivery of new sick notes, but this message was not relayed.
Tesco sent King a letter about his absence without leave on 18 February, and another inviting him to a meeting on 23 February, which the tribunal found he did not receive because he had been “too unwell to answer the door to the postman”. He was then invited to a face-to-face disciplinary meeting on 2 March by a manager known as LM, when he attended the store to shop and hand in more sick notes.
The tribunal found LM to be “unsympathetic” towards King’s condition and inability to attend work, or keep in regular contact with line managers.
Notes from the meeting record King saying “it seems as if the company is shouting about mental health awareness” and so “you would think the company would understand [my PTSD]”. He also admitted to attending A&E because he was worried about his health and felt suicidal, to which LM responded “well that’s just stupid”. LM dismissed King on 4 March 2019.
The tribunal said that JF’s actions were discriminatory because she did not think King would be intimidated by her or take her actions in the room seriously because he was a 6ft man and she was a 5ft 4in woman.
Employment judge George said: “In that split second, part of the reason why she thought it wouldn’t upset him if she tried to stop him from leaving and took hold of his arm was that he was a big man and she was a little woman – in that sense her conduct was related to sex.”
The tribunal also ruled that LM’s handling of the disciplinary was also discriminatory because their preconceptions of King’s account of why he did not keep in touch during his sickness absence was incorrect.
It said LM dismissed the possibility that King was “vulnerable” and this preconception “obviously influenced LM’s view that the claimant could have kept in touch”. A remedy hearing will be scheduled at a later date to decide on King’s compensation.
Paul Holcroft, managing director at Croner, said the case demonstrated the need for employers to take complaints seriously and be mindful of their employees’ situations.
“When deciding on how to proceed with employees’ unwanted behaviours, employers must be careful that the mindset of their managers does not lead them down a discriminatory path,” said Holcroft, adding that stereotypical thinking could lead to “unwarranted disciplinary action and eventually dismissal for gross misconduct”.
Tesco has been approached for comment. King could not be reached.