Mr J Gidney, Counsel For the v Respondent — 2021

Mrs M Cunnington was dismissed by Sainsbury’s Supermarkets Limited on 2 July 2020 after an incident on 11 June 2020 in which she and a co-worker discussed a black soft toy and Black Lives Matter in the hearing of a Black British colleague. The tribunal applied section 98(4) ERA 1996 and the Burchell guidance, with reference to Iceland Frozen Foods, Sainsbury’s Supermarkets Ltd v Hitt, Post Office v Foley, HSBC v Madden and the ACAS Code of Practice.

The tribunal found major defects in the investigation carried out by Ms Brookin. It held that she did not properly apply the respondent’s Fair Treatment Policy, did not properly explain the allegation or the policy breach to the claimant, did not consider alternatives to suspension, and did not conduct a sufficient investigation into the disputed account of what was said. The tribunal also found that the claimant was not given the documents relied on against her before the disciplinary hearing, and that the co-worker’s corroborative evidence was not fairly put before the claimant or properly investigated.

Mr Cowsill’s disciplinary decision was found to be flawed because he assumed the claimant had received the relevant papers, read out the complaint instead of providing it, did not make proper findings of fact about the exact words spoken or their context, and relied heavily on the offence taken by the complainant rather than on a properly investigated conclusion. The tribunal also found that he failed to take proper account of the claimant’s long service, lack of prior discipline, absence of equality and diversity training, the inconsistency between her treatment and the co-worker’s final written warning, and the evidence that the claimant had apologised and understood why the complainant was upset.

The appeal hearing before Mr Houghton did not cure the earlier defects. Although he eventually provided missing documents, the tribunal found that he repeated mistaken assumptions about EDI training and terminology, failed to engage properly with the claimant’s procedural complaints and did not correct the earlier failures. The tribunal concluded that the dismissal was both substantively and procedurally unfair and outside the band of reasonable responses open to a reasonable employer. A remedy hearing was to follow.