Mr Sean Dubarry v Sainsbury’s Supermarkets Limited — 2021

The claimant had worked for the respondent since 1994. The respondent admitted disability, and the tribunal found that his learning disability, palsy and autistic traits significantly affected his ability to read social cues, understand others' emotions and retain behavioural instructions without regular repetition. Earlier customer complaints in 2016 and 2018 led to warnings, reinstatement on appeal, and workplace adjustment plans, but the tribunal found that some planned support was not implemented or broke down.

On reasonable adjustments, the tribunal found that requiring the claimant to deal with customers and not be over-familiar placed him at a substantial disadvantage. It held that the respondent failed to make reasonable adjustments by not providing a clear communication sheet suitable for his needs, not maintaining the agreed schedule of meetings and communication with his mother, and not providing a mentor. Some other proposed adjustments were rejected or treated as overlapping with the section 15 claim.

For wrongful dismissal, the tribunal made its own findings about the alleged incident on 21 March 2019. It found that the respondent had not shown, on the balance of probabilities, that the claimant used the words alleged by the customer or recognised her and failed to avoid her. It therefore found no act capable of reviving earlier matters and held that summary dismissal breached the claimant's contractual right to notice.

For discrimination arising from disability, the tribunal found that the claimant's over-familiar manner with the customer in 2016 and 2018 arose in consequence of his disability and materially influenced the dismissal decision. Although maintaining a safe customer environment and customer service standards was a legitimate aim, dismissal was not found proportionate, given the effect on the claimant and the availability of alternatives such as effective adjustments, managing contact with the customer, transfer, or non-customer-facing work.

For unfair dismissal, the tribunal accepted that the respondent genuinely believed the claimant had committed misconduct, but found the investigation inadequate and the conclusions not based on reasonable grounds. It identified failures to explore the customer's previous reaction to reinstatement, to ask relevant questions of the store manager and security guard, and to weigh matters pointing away from guilt. It also found dismissal outside the range of reasonable responses, with no Polkey reduction or contributory fault found at this stage.