A former manager at Sainsbury’s who was subjected to aggressive behaviour by a male colleague, but was told it was due to her poor management of him, has been awarded almost £60,000 for constructive unfair dismissal, whistleblowing detriment and sex discrimination.
Customer trading manager (CTM) Miss Oziel had been called a “bitch” by her colleague, Mr Henderson, who was a lower grade but not a direct report. She had been later cornered in a small, windowless office when he was aggressive towards her, only to be criticised by managers for turning on her body-worn camera to discourage his behaviour.
Whistleblowing detriment
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She raised a grievance about both incidents, as well as about Henderson’s threat to bring an imitation gun to work to intimidate her.
The tribunal found nothing wrong in Sainsbury’s handling of the first incident, but said it “went further than a failure to properly investigate” the others.
The judgment said the supermarket blamed Oziel “without good reason and without even having been able to identify” what she should have done differently in the situation she faced.
Oziel worked for Sainsbury’s from June 2016 until she resigned on 29 March 2023.
In September 2021, after she spoke to Henderson about not performing his allocated tasks he had an outburst of swearing. She followed him to the back of the store, where he used the words “fucking bitch” in front of customers and colleagues.
Store manager Mr Galvin carried out an investigation which included interviewing Oziel, Henderson and other colleagues. No further action was taken but the outcome letter said that “there can however be no further incidents like this”. During this process, Henderson revealed that he had Asperger’s.
Shoplifter attack
In January 2023, Oziel was verbally abused and punched in the face by shoplifters. Footage was caught on CCTV, which the tribunal described as “shocking”. She had bleeding gums and bruises on her chin and arms.
She asked Galvin for a reduction in her hours after the incident, but the tribunal saw no evidence that this was actioned. She complained that she received no support and this was not disputed by Sainsbury’s at the tribunal. “No manager had a conversation with her, directed her to sources of support, no security was requested or provided. We accept all of the claimant’s evidence on this, as we found her credible and there was little to contradict it. We find that no support at all was offered to the claimant,” said the judgment.
On 2 February 2023, there was an incident in which Henderson told a colleague to “fuck off” three times and also used the f-word to a customer. The same day, Henderson told a colleague, SM, that he intended to buy an imitation gun to bring into the store to threaten Oziel.
CCTV footage from 7 February 2023 showed Henderson making offensive comments to Oziel, who was alone in a small office with no windows and only one door, in front of which he stood. He can be seen pointing towards her with his hand. The tribunal accepted that Oziel asked him to leave repeatedly, but he did not do so until she turned on the body cam.
He returned, again swearing at her. She asked him to leave again and he did not do so until he realised that her body cam was on again.
Imitation gun threat
The tribunal accepted Oziel’s evidence that Galvin, who no longer managed the store, laughed at her when she told him on the phone of the threat Henderson had made to her about the imitation gun and her fear of him. It found that he went on to say that she took things too seriously and became overly emotional, which the tribunal found offensive and highly inappropriate.
Henderson was suspended for “inappropriate behaviour; namely swearing, raising voice and acting in an aggressive manner towards other colleagues”. But the tribunal found it noteworthy that there was no mention of the threat with the imitation gun, despite it being set out in Oziel’s grievance email of 7 February 2023.
It is typical in whistleblowing situations that those directly or indirectly criticised in whistleblowing situations seek to blame the whistleblower. This is exactly what happened here and it was accepted without question. This led to the detriments which the claimant has identified” – judgment
This threat was treated as a protected disclosure by the tribunal, where Oziel outlined Henderson’s previous aggressions, which also included chasing a shoplifter with a bottle of wine to hit him.
Ms Hayes was appointed to handle Henderson’s disciplinary action. She held a meeting with him and no one else. The tribunal said: “Again it is notable that there was no mention of the imitation gun threat. It is even more remarkable that [Henderson] was not asked a single question about this threat and neither was anybody else, including the claimant or SM at any time by the respondent.”
Hayes stated that no further action would be taken. Her outcome letter dated 7 March 2023 said: “I believe there was a breakdown in communication and that the situation was not handled correctly or appropriately by anyone involved.”
The judgment said: “It is hard to understand how that conclusion was reached when the only investigation was a meeting with [Henderson].”
A separate “fair treatment” investigation, instigated by Henderson, found that “if management had acted as per training, then you would have felt supported due to your condition”.
‘Clear difference’
The tribunal found a “clear difference” between how Sainsbury’s dealt with the communications by the claimant and Henderson. His was treated as a grievance and Oziel’s was not, despite raising concerns about the threat with an imitation gun. “There was little investigation and no outcome into her complaints of 7 February 2023,” said the judgment.
On 8 March, the new store manager met with Oziel and told her she needed training in conflict management; that management had bullied Henderson; and that she had demonstrated poor management in dealing with him. Oziel was also required to enter into mediation with Henderson, and her refusal was a refusal of a reasonable management request which could lead to further action against her.
On 25 March 2023, Oziel sent a fair treatment complaint, which the tribunal recognised as a grievance. The claimant did not receive any response until she resigned on 29 March 2023.
The judgment said: “We find that the respondent has completely failed to even consider that the claimant was raising concerns she had about her personal safety around [Henderson] as evidenced by undisputed aggressive behaviour towards her (the swearing). Instead they have put the blame for the situation on the claimant.”
It added: “We do not accept that the claimant bore any responsibility for poor management of [Henderson]. The claimant and [him] worked opposite shifts from the end of 2021 to February 2023 which limited their interactions. She did not manage him.”
‘Blame the whistleblower’
The judge said: “It is typical in whistleblowing situations that those directly or indirectly criticised in whistleblowing situations seek to blame the whistleblower. This is exactly what happened here and it was accepted without question. This led to the detriments which the claimant has identified.”
It found that Oziel has been discriminated against because of her sex because the word “bitch” is primarily used against women – “The respondent has not provided sufficient evidence about the reasonable steps they have taken to prevent [Henderson] from carrying out the less favourable treatment.” Also, it found communications between senior managers that stated that two male CTMs “had no problem” with Henderson, while two female CTMs did, including Oziel.
Sainsbury’s was ordered to pay Oziel a basic award of £3,375 for unfair dismissal and compensation of £29,250. She will also receive £21,000 for injury to feelings and aggravated damages of £2,000. With interest, the total award was £59,333.
A spokesperson for Sainsbury’s said: “This case does not reflect the great care that is taken to safeguard our colleagues and the policies we have in place to support that. We are reviewing this complex and sensitive case to make sure we learn from it and do better by all our colleagues in the future.”
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