Dismissal without seeking evidence of disability

A former TK Maxx worker who was dismissed following a fight with a customer over a pair of trainers has won an employment tribunal.

The employee worked for the store for around 13 years in various roles, before becoming store manager in 2009, and general manager in 2013. In March 2016, he was promoted to general manager of TK Maxx’s High Street Kensington store.
Shortly after he took up the role at the High Street Kensington store, it was alleged that he behaved inappropriately towards some colleagues. When he was asked about this by his district manager and the regional HR manager, the employee told them he suffered from depression and anxiety, including having suicidal thoughts. This, in turn, negatively affected his sleep and mood, and made him quick to anger. He advised that he was receiving therapy and taking medication for his condition.
In August 2016, the employee claimed he was sworn at by a customer after he told them he could not refund a pair of trainers because they appeared to have been worn outside, which would have been against the store’s returns policy.

Apparently, the unhappy customer then pulled out his phone to record the incident. The employee pulled the phone away from the customer over the shop counter in what became an altercation. The customer complained, with claims that the employee tried to steal his phone and that he had been punched by a security guard in the ensuing struggle.

After receiving the complaint and reviewing the CCTV footage of the incident, the employee was dismissed for gross misconduct.
However the tribunal found that TK Maxx had gone ahead with its disciplinary procedure without properly investigating and first obtaining a proper medical opinion to confirm whether the employee’s mental health issues had been ongoing and had therefore contributed to his behaviour and found in favour of both unfair dismissal and disability discrimination.

This case demonstrates the need for employers to make sure they have properly considered the impact of a disabled employee’s condition, and any medication they may be taking in respect of that condition, when making any decision to discipline and / or dismiss a disabled employee. This may mean seeking medical opinion before making any decision as part of the investigation process.

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