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Tesco Discrimination

5ft 4in pregnant female manager ‘falsely imprisons’ 6ft male customer assistant

Mr King worked for Tesco. He suffered from post-traumatic stress disorder caused by being held hostage in his previous job as a prison officer. He complained to Tesco that his line manager, a 5ft 4in pregnant woman, had falsely imprisoned him while they were working at Tesco.

Following the incident with his line manager, Mr King suffered a relapse in his PTSD and was ultimately dismissed due to his non-attendance.

Mr King claimed that he had been subjected to harassment and direct sex discrimination.

Mr T King v Tesco Stores Limited

Mr King was employed at a Tesco store in Aylesbury between 18th November 2017 and 2nd March 2019. He suffered from post-traumatic stress disorder caused by being held hostage in his previous job as a prison officer.

On 19 December 2018, Mr King’s line manager “berated” Mr King for his purported lack of flexibility in making himself available for further hours in the period prior to Christmas. Following this heated exchange, Mr King was invited by the line manager to the staff search room, a room which had CCTV recording, in order to discuss the Claimant’s attitude to working additional shifts.  Mr King informed his line manager that he felt increasingly uncomfortable and was going to leave. Upon seeing Mr King attempt to leave the room, the line manager prevented him leaving by putting her hand out firmly, placed her foot against the door to prevent it opening and to block the doorway. She also used her shoulder to block Mr King, and made robust physical contact with Mr King by grabbing and holding onto his arm, all in an attempt to stop him from leaving the room.

Mr King’s line manager had admitted that she did not consider that Mr King would be intimidated by her behaviour because Mr King was a 6ft male and she was a 5ft 4in pregnant female.

Mr King complained about the treatment to Tesco but it was not investigated effectively or given any sense of seriousness, again due to the line manager being a 5ft 4in woman.

Following the incident, Mr King had a lengthy period of absence and failed to attend work. He was invited to a disciplinary hearing (which he didn’t attend) in March 2019 and was dismissed.

Mr King brought claims for unfair dismissal, direct sex discrimination and harassment related to sex.

Decision

The Employment Tribunal found that Mr King was subjected to harassment related to his sex in relation to the incident on 19 December 2018. The tribunal found that the line manager’s conduct was unwanted and created an intimidating environment for Mr King. The treatment was related to his sex because the line manager had said she didn’t expect him to be intimidated due to their size/gender difference.

Mr King was also subjected to direct sex discrimination due to Tesco’s failure to reasonably investigate Mr King’s allegations. The failure was again on the presumption that he couldn’t have been intimidated due to his size. The tribunal accepted that Tesco would not have been so dismissive of a female employee making the same allegation.

Finally, the tribunal found that Mr King’s dismissal was an act of harassment related to sex in itself, as essentially it flowed from the incident on 19 December 2018.

Mr King’s unfair dismissal claim was dismissed as he did not have sufficient qualifying service, although as his dismissal was discriminatory, this became irrelevant.

Comment

This case highlights the importance of employers always taking their employees’ claims of harassment and discrimination seriously, no matter the circumstances. In relying on their own perceptions of how they believed Mr King should feel after the 19 December 2018 incident, based upon societal standards and preconceived ideas surrounding behaviour of the sexes, the relevant managers at Tesco walked into an additional sex discrimination claim. Investigating the incident reasonably (even if the ultimate outcome was that no discrimination/harassment had taken place), would have avoided that part of the claim.

Similarly, managers should be trained to avoid using discriminatory justification for unwanted behaviour.

The judgment emphasises that employers should treat all claims of harassment and discrimination in the same way, no matter who is making the allegation.

If you have any queries relating grievances, harassment, conducting disciplinary proceedings or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.

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