Failing to Include Sainsbury’s Manager in an International Men’s Day was Harassment, Says ET

In Mr D Cooper v Sainsbury’s Supermarkets Ltd (1) Mr M Hourihan (2), a Sainsbury’s manager wasn’t included in a social media post celebrating International Men’s Day while off sick with anxiety. The employment tribunal ruled that exclusion from the International Men’s Day post constituted harassment and unfavourable treatment arising from disability. Read on, as we explore what happened and analyse the tribunal’s findings.

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Facts of Mr D Cooper v Sainsbury’s Supermarkets Ltd (1) Mr M Hourihan (2)

Sainsbury’s Manager Signed Off Sick with Anxiety

The claimant (Darren Cooper) commenced employment with the first respondent (Sainsbury’s Supermarkets Ltd) in March 1993. In 2010, he was promoted to 6S store manager, a Sainsbury’s manager for a larger store. At the time of the claim, the second respondent (Matt Hourihan) was a regional sales director and the claimant’s line manager.

In July 2022, a restructuring of staff within the first respondent’s stores took place. In the process of this, three of the claimant’s team moved to different stores, and one resigned. Then, on 24 July, the new structure commenced.

The next day, the second respondent informed the claimant that a female colleague had been assaulted by a customer that evening, and the claimant was upset that his new management team hadn’t informed him about it. As such, he notified them that he would be off sick due to anxiety the following morning. Later, he confirmed that his GP had signed him off sick with anxiety for four weeks.

Anxiety Constituted a Disability

On 5 August, the claimant attended an attendance review meeting with the second respondent. The aim of this was to discuss reasonable adjustments that might be made to make the claimant’s return to work easier. However, later that month on 22 August, the claimant was signed off sick with anxiety for a further eight weeks.

As a result, the claimant was referred to occupational health, with the first meeting taking place on 25 October. The subsequent report outlined that the claimant was suffering from a “psychological response to a combination of factors”. These included the first respondent’s restructuring, and that the condition was impacting the claimant’s daily activities. Furthermore, the report stated that the claimant’s anxiety was likely to continue for more than twelve months. Because of this, his anxiety constituted a disability for the purposes of the Equality Act 2010.

On 28 October, the claimant was again signed off sick for an additional eight weeks. No further action was arranged by the second respondent at that time, and a temporary store manager was appointed for the eight-week period.

Claimant Excluded From International Men’s Day Post

On 19 November, the second respondent published a social media post on LinkedIn acknowledging International Men’s Day. The post thanked all male Sainsbury’s managers and tagged those across the second respondent’s region. However, the claimant wasn’t tagged in this social media post and was very upset about this.

Consequently, he filed an internal complaint about the second respondent three days later. This listed 48 instances of workplace harassment and unfavourable treatment arising from disability between June and November 2022. An internal investigation took place regarding these complaints and only upheld one complaint regarding failing to tag the claimant in the social media post. When the claimant appealed this decision, he ultimately lost.

Sainsbury’s Manager Dismissed on Grounds of Capability

Subsequent attendance review meetings took place with the claimant, and he attended a second occupational health assessment. This confirmed that he was still unfit to work due to anxiety, and no potential return date was identified. During March 2023, the claimant contacted ACAS as part of the early conciliation process.

Then, on 14 June, a final attendance review meeting took place. Following discussion of the claimant’s health condition and circumstances, he was dismissed. He appealed this decision, and it was upheld following a meeting in August.

The claimant then brought numerous claims against the first and second respondents. These included disability discrimination, harassment related to disability, unfavourable treatment due to something arising as a consequence of disability, and unfair dismissal.

The Judgment of the Employment Tribunal in the Sainsbury’s Manager’s Case

This claim was heard in the Cardiff Employment Tribunal by Employment Judge R Brace. Following consideration of all the facts, the tribunal upheld the claimant’s claims of harassment and unfavourable treatment due to something arising as a consequence of disability. It was noted that neither respondent knew or could reasonably have been expected to know of the claimant’s disability until receipt of the first occupational health report. As such, all claims related to incidents before that date weren’t upheld.

The employment tribunal held that the second respondent’s failure to include the claimant in his International Men’s Day post constituted harassment and unfavourable treatment arising from disability. This was “unwanted conduct” for the purposes of harassment and related to his disability. The conduct also constituted unfavourable treatment because of something arising from the claimant’s disability (namely his sickness absence), resulting in his humiliation.

However, the claimant’s claim of unfair dismissal wasn’t upheld. The tribunal found that the grounds of capability were a potentially fair reason for dismissal. The first respondent had followed a fair procedure, consulting regularly with the claimant and considering alternative employment and reasonable adjustments. The first respondent could also not reasonably be expected to wait longer, given the circumstances of the case.

The amount of the claimant’s compensation is yet to be determined.

The friendly team of employment law experts at Redmans Solicitors have substantial experience in claims for harassment and unfavourable treatment arising from disability. Contact us today, and we will be able to answer your questions and advise whether you may have an eligible claim.

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