A supermarket worker was unfairly dismissed after managers carried out a flawed investigation into ‘inappropriate’ messages he sent to a 17-year-old colleague, a Scottish tribunal has ruled.
The Dundee tribunal said various Tesco managers failed to carry out a fair investigation into comments the worker, who was referred to as S in court documents, made towards a younger co-worker on Facebook, as well as a subsequent comment made in person. S was 39 at the time.
Judge Ian McFatridge said the outcome of the disciplinary had been tainted after one manager decided S was “some sort of sexual predator” ahead of meetings, and that there had been a complete failure to investigate points raised by S during the hearings.
S, who was employed by Tesco from June 1998 until his dismissal in April 2018, worked in a team support role at the Riverside store in Dundee, and on occasions provided support at other stores across Scotland and England. He worked in the front end of the stores dealing with the checkouts, kiosk, petrol pumps and customer service desk.
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In April 2018, his team leader Emma Lyttle was contacted by Mark Kerr, the lead fresh trade manager in the store, to advise that an allegation had been made against S. Both Lyttle and the store’s services manager took statements from a 17-year-old female checkout operator, who was referred to as E in the tribunal documents.
The tribunal heard S would have been this worker’s first point of contact within management, and would carry out a role in arranging time off or dealing with rotas and shifts. He would also be expected to provide E with support during the course of the working day.
Lyttle passed on statements which she had taken from E during an interview on 7 April. E said S added her on Facebook and began to private message her. At first, E said she thought he was trying to make conversation, but felt this changed around Christmas.
She said he messaged her to say “‘you’ve got three days to get your cute ass to the doctors” when she was unwell. She added he was “using inappropriate emojis that, when used with the message, felt wrong/weird.”
S was suspended on 11 April, in order for an investigation to be taken out.
He attended an investigation meeting with Kerr the next day (12 April). He was told the basis of the allegation was that he had made inappropriate comments to a colleague.
Kerr said he wished to go through some more of the Facebook messages, which he summarised. They included: “I’m going to tickle you till you pee”, “you’re definitely overdue a tickle” and “I will give you a cuddle when I see you”.
S told Kerr it was not his intention to cause embarrassment, harm or malice towards E or anybody in the store and he was embarrassed by the messages he had sent. He added that he had a daughter the same age as E, and said the messages were similar to the way he spoke with her. He was then invited to a disciplinary meeting to be held on 20 April.
In advance of the hearing, Charles Burness, the store manager, read through the investigatory documents. He admitted to the tribunal it was his view that the conduct was “verging on grooming”, and S had a “sexual intention to E, who was 17 at the time”.
Burness decided to dismiss S during the meeting on 20 April for gross misconduct.
S appealed his dismissal on 28 April, saying he felt that his version of events was not adequately considered and the outcome was too harsh. But an appeal meeting on 11 May resulted in the decision to dismiss being upheld.
The tribunal ruled S was unfairly dismissed by Tesco after a “complete failure” by three managers to make any attempt to investigate points he raised during various hearings. Judge Ian McFatridge said Burness had gone into the disciplinary meeting believing that S “was some sort of sexual predator”.
“It appeared to me that he had no intention of listening to anything that [S] might say and did not approach the matter with an open mind,” McFatridge said.
The tribunal awarded S £17,339 for unfair dismissal.
Andrew Willis, head of legal at HR-inform, said the ruling was a clear example of how easy it is to jump to a conclusion based on a personal perception of inappropriate behaviour when an allegation is received.
He cautioned all investigations needed to be in-depth and carefully balanced towards both parties involved.
“Where messages form the basis of a complaint, these should be fully reviewed in support of the complainant and also in support of the perpetrator, especially if they are putting forward a different version of events as their defence,” Willis said.
He added that context was “all important” in a claim of inappropriate behaviour, and managers involved at the disciplinary stage would be unable to make a fair judgment if the investigator had not received all available background information concerning the context of the incident.