Hello and welcome to our case of the week. Last week we looked at whistleblowing and the burden of proof, this week we look at unfair dismissal and procedural unfairness in the context of a BLM quip.

Facts

Mrs. Cunnington worked at a Sainsbury’s store in Birmingham. One morning shift, at the height of the 2020 BLM protests, she picked up a black ‘Bing’ toy – a rabbit dressed in human attire – and commented either, “Oh! I’m offended, black lives matter”, or “should we be selling this? black lives matter” to a nearby colleague. She maintains she said the latter, Sainsbury’s maintain she said the former.

A black British colleague overheard the statement and confronted the Claimant. After remonstrating with her, the colleague complained to management.

This prompted an initial fact-finding meeting with the Claimant and the colleague, respectively, culminating in a decision to suspend the Claimant for suspected breach of the Respondent’s Equality, Diversity, and Inclusion policy.

Whilst suspended, she was invited to a Disciplinary Hearing, the outcome of which was to dismiss her. This resulted in an appeal which upheld the decision. The Claimant submitted a claim for unfair dismissal.

Tribunal

It was submitted that the dismissal was procedurally and substantively unfair. The tribunal concluded that she had been unfairly dismissed.

Procedurally, it commented that each manager (from the initial fact-finding meeting to the appeal meeting) was in breach of the Respondent’s disciplinary policy for several reasons. Chief among these were a failure to hold an informal meeting between the Claimant and the offended colleague before suspension was decided upon (as mandated by the Disciplinary policy); failure to consider alternatives to suspension (as the Disciplinary policy said this should be a last resort); and failure to provide the Claimant with adequate documentation at each respective meeting (the Claimant had not received a bundle of documents including the allegations made against her, and upon requesting one, was simply read aloud several of the documents).

Substantively, it said the Respondent breached the test in Burchill, in that the investigating officer(s) did not hold a genuine belief in the facts found (having not conclusively determined what the Claimant actually said), and that any belief held was unreasonable for the same reason. It also held that dismissal was not within the range of reasonable responses open to a reasonable employer in the circumstances: a more reasonable response would have been to provide the Claimant with Equality and Diversity training (which she had not sat for 14 years). Also, no account was taken of the Claimant’s unblemished 28 years’ service.

Comment

This case could have been remedied by good business practice. Firstly, disciplinary managers need to be fluent in the company’s policies. A disciplinary manager that does not understand the interchange between various policies (such as Equality, Diversity, and Inclusion and Disciplinary) is a fast track to procedural unfairness and ultimately tribunal. Secondly, employees should be given Equality and Diversity training. The fact that Sainsbury’s employees can go without such training for 14 years goes to show that even large companies get it wrong.

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