A former M&S worker has won her claim for unfair dismissal after she was sacked following a confrontation with a maskless shopper at the height of the Covid-19 pandemic.
Ms Daisy was verbally abused by a customer while working in a store in November 2020, an incident that led her to suffer anxiety and depression, the employment tribunal heard.
In January 2021, Daisy began a period of absence from work because of her symptoms and submitted a fit note for two weeks, followed by another for a month.
At an ill-health meeting with her employer she was asked to suggest adjustments but Daisy admitted she would not feel comfortable returning to work until she was vaccinated, and planned to get another fit note. She was then referred to occupational health for an assessment.
An OH report concluded that Daisy was exhibiting “unusually high levels of anxiety working in store” that were not just related to the pandemic, and if M&S had exhausted all avenues of reasonable adjustment, it could consider ill health retirement.
Ill-health meetings revealed that Daisy had experienced other traumatic incidents in store, including having to chase a shoplifter and an armed robbery, for which she had not received any training.
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She asked to see the results of investigations into these incidents, but this was denied due to “vague” data protection reasons, the tribunal heard. This information was only shared with her after she was sacked.
The retailer continued to offer to support Daisy back to work and referred her to its wellbeing support service, PAM Assist. At subsequent meetings she told OH that she continued to feel vulnerable being in the store and that she felt the company had “not acted and dealt with abusive customers appropriately”.
In April 2021, she was warned that continued absence could result in her dismissal and in June she was dismissed. An appeal on the decision was unsuccessful and she launched a claim for unfair dismissal.
In judgment, Employment Judge Timothy Knowles said the company had not sufficiently addressed how it might deal with issues relating to Daisy’s personal safety fears.
“I am surprised that those matters were not explored with [her] given that [Marks and Spencer Plc] is a well-resourced retailer in the UK and given that the plight of shopworkers and the abuse they suffer at work is generally well known,” he said.
Daisy’s compensation will be decided in a future hearing, but the judge added that he assessed the likelihood of dismissal “in any event” as 25% so the award would be reduced by that amount.
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