Sainsbury’s dismissed a worker with a brain injury who had been accused of groping female staff and using inappropriate language, a disability discrimination case has heard.
Mr Kelly lost his job at the supermarket chain in 2020, despite claiming his behaviour had been a side effect of a brain injury he suffered in a car accident many years before, which the organisation had been aware of.
Kelly began working as a trainee manager in 2000. He was involved in a serious road traffic accident in 2004, which placed him in an induced coma for a month, followed by several months in hospital.
When he returned to work his performance began to suffer due to memory problems, and he was unable to continue on the management training scheme. However, he remained employed by Sainsbury’s.
In 2010, Kelly received a written warning after he called a colleague a “b**ch” and a “wh**e”. During the disciplinary hearing he said his behaviour had changed since the road traffic accident. He was apologetic and recognised that his conduct had been unacceptable.
He was referred to an occupational psychologist who found he had significant limitations in terms of cognitive functioning, including aspects of his working memory. The psychologist confirmed that some of his behaviour “may be partially accounted for as a consequence of a past head injury and associated hidden difficulties”, and suggested that “behaviour changes and modifications can be developed with counselling support (talking therapies) and helpful strategies acquired through the provision of cognitive behavioural education”.
Employees with brain injury
In 2015, he received an informal warning after he called a colleague a “yummy mummy” and asked her for her telephone number. He was warned to be more conscious of what he was saying and to review the company’s harassment policy.
Kelly was recorded to have expressed annoyance with himself and said he had not meant anything by the comments.
Sainsbury’s received a formal complaint from another employee in April 2020, who alleged he had called her “b**ch” and “wh**e”, groped her and rubbed her shoulders. The complainant alleged that another colleague had experienced similar name-calling and touching, and had been sent pornographic images over Facebook.
The store manager interviewed a number of staff and decided no action should be taken, but this was appealed by the complainant. Her appeal was upheld. It was reinvestigated by a store manager from another Sainsbury’s branch, who decided Kelly should face disciplinary action.
When Kelly was interviewed, he did not remember calling the complainant names and denied groping her and rubbing her shoulders.
Sainsbury’s later received an anonymous letter that claimed Kelly had asked a colleague about her bra size, used inappropriate and explicit language regularly, and stood behind women – including customers – and rubbed their shoulders.
As there was no solid evidence, the manager determined no further action would be taken against Kelly, however the accuser later made a call to the company’s whistleblowing hotline and the investigation was reopened. Kelly was suspended while this took place.
Other colleagues came forward about alleged incidents of inappropriate behaviour, including Kelly calling a Pakistani colleague “Bin Laden’s mistress”.
He was invited to a disciplinary hearing in July 2020. Kelly was told he would be dismissed, with the manager stating: “I believe that in relation to the allegations of your sexual harassment and inappropriate behaviour, they have occurred. Also I made [sic] reasonable belief that prior conversations in regards to similar matters have not rectified your behaviour. It is not acceptable and not in line with our values or company policy.”
Kelly appealed against the decision, stating that the accuser had falsified evidence and that Sainsbury’s “had no regard to his health and wellbeing”. He said he had struggled to remember anything since his car accident and that he had a “child-like” nature. The manager conducting the appeal hearing suggested it would have been unreasonable to expect the investigating manager to take the car accident into account as it had happened 16 years previously.
The manager asked Kelly about his symptoms. He said he was prone to saying what was on his mind and was child-like. He confirmed he still had memory problems and that he’d had therapy. He confirmed he had been referred to occupational health, but could not remember when. He still could not remember things he was said to have done.
The manager upheld the decision to dismiss Kelly, stating: “Your behaviour was not in line with Sainsbury’s harassment or fair treatment policies which is available to all colleagues and detailed within your handbook”.
The Norwich employment tribunal found that Kelly’s behaviour arose as a consequence of his disability, and Sainsbury’s had treated him unfavourably by subjecting him to disciplinary proceedings and dismissing him.
Mr Kelly had an increased propensity to act in an inappropriate manner and to make inappropriate comments and that the same arose in consequence of his disability,” – Employment judge Martin Warren
“It is apparent on the evidence that comments and actions like these were a regular feature of interaction with Mr Kelly, which had not been the case prior to his road traffic accident. Such comments are not normal behaviour; one would have thought any person seeing that Mr Kelly behaved in this way would recognise there was something not quite right and that something must be causing him to behave that way,” the judgment says.
“On the balance of probabilities, we therefore find that Mr Kelly had an increased propensity to act in an inappropriate manner and to make inappropriate comments and that the same arose in consequence of his disability.”
Employment judge Martin Warren found it was “surprising” that neither the manager who handled the appeal nor HR had read the occupational psychologist’s report, and considered its implications, when Kelly raised the impact his head injuries had had on his health.
“A proportionate approach would have entailed seeking an update of the medical evidence it already held on file, either via occupational health or going directly to a psychiatrist seeking information on the extent to which Mr Kelly’s behaviour would have been explained by his head injuries, what steps might be taken to prevent such behaviour and what chances there would have been of those steps being successful,” the judgment says.
The tribunal found Kelly was discriminated against because of his disability and unfairly dismissed. A claim of wrongful dismissal was dismissed. A hearing to consider compensation has been set for 20 May 2022.
A Sainsbury’s spokesperson said: “We are an inclusive retailer and do not tolerate abusive behaviour. We are very disappointed by this judgment and are reviewing our next steps.”