Supermarket worker who allegedly made a ‘Black Lives Matter’ joke about a toy was unfairly dismissed, tribunal rules

9 Jul 2021 By Elizabeth Howlett

Judge said the unfair investigation and fundamental procedural errors were a disservice to Sainsbury’s cause of being an inclusive employer

A supermarket worker who joked about a toy of a black rabbit causing her “offence” at the height of the Black Lives Matter (BLM) protests, was unfairly dismissed.

A tribunal ruled that Sainsbury’s decision to dismiss Mrs M Cunnington, who had not received any equality, diversity and inclusion training for at least 16 years and had “inadvertently” offended her co-worker, was not well founded and unfair.

The tribunal also found that the supermarket did not follow its fair treatment policy and did not take Cunnington’s length of service and clean record into account at appeal.

Judge A Richardson said that the heightened sensitivities surrounding the tragic death of George Floyd were “all the more reason” to ensure procedures were followed properly so that “justice can be done”.

Cunnington had worked for Sainsbury’s since 1992 and, by reason of a TUPE transfer in 2004, had 28 years’ continuous service without any disciplinary record. At the time of her dismissal she worked as a price controller.

Cunnington, who is white British, was working a morning shift on 11 June 2020 with two colleagues when she made a comment about a plush toy of the BBC cartoon character Bing Bunny – a black rabbit – that was for sale.

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Cunnington claims she said: “Do you think we should be selling these in the light of what is going on with Black Lives Matter?” However one of her colleagues – the complainant, who identifies as Black British – claimed she made the joke: “I’m offended, Black Lives Matter.”

The second colleague – who is also white British and who the tribunal referred to as the coworker – then made a joke about getting t-shirts with “old colleagues’ jobs matter” written on them, a reference to an unrelated workplace issue.

The complainant overheard their remarks and laughter and confronted Cunnington, after which she apologised. The complainant also confronted the coworker.

The complainant then spoke to customer and trading manager Mrs Brookin before asking in writing for the issue to be treated as a formal complaint. Brookin conducted several informal fact-finding interviews with those involved, but failed to get the interviewees to check and sign her notes as would have been the process in a formal complaint under Sainsbury’s fair treatment policy (FTP).

Cunnington was then suspended for gross misconduct, but no details of the allegations were communicated with her, either verbally or in writing.

The tribunal described the suspension letter as “nonsensical” and said Brookin did not consider any alternative to suspension, despite the disciplinary policy saying suspension should be a “last resort”.

Following this, Cunnington was invited to attend an investigation meeting on 25 June, in which she denied using the phrase: “I’m offended, Black Lives Matter.” However, in a separate investigation meeting, the coworker said Cunnington had used the phrase.

Cunnington attended a disciplinary meeting on 2 July. The tribunal found she attended without any information on the charges she faced, she had not been not told what comments she allegedly made nor the section of the policy she had breached.

The meeting was led by Mr Cowsill, operations manager at another Sainsbury’s store. Cowsill assumed Cunnington had received the disciplinary documents prior to the meeting but did not check, and he did not tell her what documents he would be relying on.

Cowsill decided to dismiss Cunnington, stating that he believed she had breached the equality diversity and inclusion policy and showed “minimal remorse through the process”.

He added that Cunnington had denied making the comments despite the evidence from the complainant and coworker and that she had “changed her stance” during the investigation and disciplinary process.

Cunnington appealed, but the dismissal was upheld because she did not “demonstrate a change in behaviour” and would “still do the same” again.

The tribunal said that Brookin’s “ignorance of how to conduct a fair investigation procedure” meant she was unable to “adequately fulfil her duties as an investigation manager”, but this wasn’t necessarily fatal to a fair dismissal as the situation could have been remedied by the more experienced Cowsill.

However, the tribunal said Cowsill did not try to ascertain whether there was any truth in Cunnington’s version of events, and based the dismissal on the degree of offence taken by the complainant by words that were “possibly misheard”.

The tribunal also found that many aspects of the appeal did not follow correct processes, including the failure to appoint an appeal manager who was not previously involved.

“Given the size and resources of [Sainsbury’s], the fact that so many fundamental procedural errors were made is unacceptable,” the judge said, adding that Cunningtons unfair treatment and the processed followed was a “ disservice to the complainant and also to the [Sainsbury’s] cause to being an inclusive employer”.

Commenting on the case, Paul Holcroft, managing director of Croner said that employers should follow correct procedures, even if the behaviour may be offensive. “Although the employee’s actions may have been perceived as insensitive at the time, employers should nevertheless ensure that they are following correct disciplinary procedures when dismissing employees.”

Beverley Sunderland, partner and director at Crossland Employment Solicitors, added it was important for HR to obtain evidence from both sides and treat employees consistently. “Just because it is an allegation of racism it does not mean that the basic principles of fairness and investigation are not applied,” said Sunderland.

Sainsbury’s have been contacted for comment. Cunnington could not be reached.

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