S v Stores Limited — 2019

Tesco dismissed S, a Team Support at the Riverside store, after allegations from a 17-year-old checkout colleague, E, about inappropriate comments and actions over Facebook Messenger and in store. The tribunal accepted that S had sent the messages, but found that the exchanges were two-way and that S genuinely believed he was engaged in friendly banter rather than conduct that would offend E until the complaint was raised.

Applying section 98 ERA 1996, the Burchell test and Sainsburys Supermarket Ltd v Hitt, the tribunal held that the investigation was inadequate. Mr Kerr did not speak to E, Emma Lyttle or Wendy Cooper, did not investigate how E's statements had been obtained, did not properly explore the context of the messages, and did not interview other colleagues named in E's account. The tribunal also found that the prior 'Let's Talk' about contact with Ms F was relied on without proper enquiry.

At the disciplinary stage, Mr Burness had already formed the view that the case involved sexual harassment and potentially grooming, and he treated S's position and E's age as central to the decision. The tribunal found that material matters, including allegations of sexual harassment and abuse of position, had not been put to S in the invitation letter, that the decision makers had pre-judged the case, and that the dismissal was both procedurally and substantively unfair.

Reinstatement and re-engagement were rejected as impracticable, but the tribunal reduced both the basic and compensatory awards by 25% for contribution. It assessed S's basic award at £4,936.49 and the compensatory award at £12,403.27, giving a total monetary award of £17,339.76. The prescribed element was £10,984.58 for the period 20 April 2018 to 20 April 2019, and the award exceeded the prescribed element by £6,355.18.