Tribunal finds a Sainsburys duty manager dismissed for harassing colleagues after brain injury was discriminated against.
The judge found that Sainsburys did not appear to consider the possible or, in the tribunal’s view, ‘obvious’ impact of Mr Kelly’s brain injury on his behaviour. Mr Kelly began his employment with Sainsburys in March 2002 and was involved in a serious road traffic accident in May 2004.
Between his return and the incident which led to Mr Kelly’s dismissal, there were other examples of behaviour where he was said to have insulted female colleagues. One such incident led to a formal disciplinary process, during which Mr Kelly said that his behaviour had changed since his accident, and the issue of a written warning. Thereafter, Mr Kelly underwent an assessment in 2011 by a chartered occupational psychologist.
The report confirmed that: ‘A brain injury carries hidden difficulties often with some emotional and behavioural consequences. Some of Mr Kelly’s behaviours in his work place (as reported earlier) may be partially accounted for as a consequence of a past head injury and associated hidden difficulties. For Mr Kelly, a hidden and cognitive disability can make it difficult for him, and indeed his colleagues to fully comprehend. Behaviour changes and modifications can be developed with counselling support (talking therapies) and helpful strategies acquired through the provision of cognitive behavioural education’.
Mr Kelly was suspended pending a second investigation into an allegation of sexual harassment. The complainant had called Sainsburys’ whistleblowing hotline in June 2020 after a decision was taken to take no further action in response to her allegations that she’s been called a ‘b**ch’ and a ‘whore’ by Mr Kelly who’d also rubbed her shoulders. Mr Kelly was dismissed on 31 July 2020 in a letter which cited how he had not ‘rectified’ his behaviour.
Mr Kelly appealed. During a meeting on 18 August 2020 Mr Kelly’s father – who was also in attendance – explained that if the appeal chair ‘looked properly at Mr Kelly’s file, they would see that he is disabled’. The appeal chair asked Mr Kelly about his symptoms to which he responded saying that he ‘was prone to saying what was on his mind, letting it out and was child-like’ and that he’d been referred to occupational health but couldn’t remember when that was.
The tribunal found that Sainsburys had disregarded Mr Kelly’s disability and that they ought to have considered the content of his personnel file – as the appeal chair had been duly advised to do – notably the report completed in 2011. Had Sainsburys done so, they’d naturally have had to ask the question whether Mr Kelly’s disability may have had an impact on the acts of misconduct of which he was accused.
It went on to conclude that Sainsburys had chosen to ignore Mr Kelly’s disability, had treated him unfavourably for something arising from a disability and had failed to adopt a proportionate means of achieving a legitimate aim (i.e. preventing sexual harassment in the workplace) having failed to consider the medical evidence on file from 2011 and the effectiveness of other actions taken since Mr Kelly’s accident to preventing similar unwanted behaviour.
This case highlights the difficulty faced between taking action due to complaints of sexual harassment, and taking into account the potentially unwanted behaviour of the accused due to a disability. It should serve as a warning to employers of the importance of a full investigation, and of a proportionate response should the welfare of the complainant outweigh that of the accused.
Of neurodiversity in the workplace, employers will find little sympathy at tribunal for failing to consider how they might support a disabled employee and all options available to it. This can include training for managers and greater awareness in the workplace of the manifestations of one employee’s impairment. In this case, Sainsburys – ‘a national supermarket chain with many thousands of employees’ with ‘significant resources’ as noted by the tribunal, including on-demand HR support – came in for severe criticism.