Unfair dismissal brings into question managers’ training

A Sainsbury’s worker who joked about a  black rabbit toy causing her “offence” at the height of the Black Lives Matter (BLM) protests, was unfairly dismissed.

The Employment Tribunal decided that Sainsbury’s decision to dismiss the employee, who had not received any equality, diversity and inclusion training for at least 16 years and had “inadvertently” offended her co-worker, was not well founded and unfair. The tribunal also found that the supermarket did not take the employee’s 28 years of service and clean record into account at appeal.

The employee, who was white British, was with two colleagues when she made a comment about a plush toy of the BBC cartoon character black rabbit, Bing Bunny that was for sale. She  said: “Do you think we should be selling these in the light of what is going on with Black Lives Matter?” However, her colleague –who identifies as Black British claimed she made the joke: “I’m offended, Black Lives Matter.”

A second colleague – who is also white British made a joke about procuring t-shirts with “old colleagues’ jobs matter” written on them, a reference to an unrelated workplace issue. The complainant confronted the employee, who apologised.  However the complaint was put in writing and treated as a grievance.

The employee was suspended for gross misconduct, but no details of the allegations were communicated with her and she was then invited to attend a disciplinary meeting without having been provided with any detail relating to the charges she faced, nor the policy she was alleged to have breached. The employee was subsequently dismissed for breaching the equality, diversity and inclusion policy.

The tribunal criticised the investigation and the training provided to the manager conducting it.  The judge also stated that the disciplinary manager failed to ascertain whether there was any truth in the employee’s version of events, basing the dismissal on the degree of offence taken by the complainant.

The tribunal also found that many aspects of the appeal did not follow correct processes, including the failure to appoint an appeal manager who was not previously involved.

The judge stated that, “given the size and resources of Sainsbury’s, the fact that so many fundamental procedural errors were made is unacceptable.

It is always important to ensure that managers conducting investigations and disciplinaries are supported and trained in the process and that they endeavour to obtain evidence from both sides, treating employees consistently.