A Sainsbury’s manager who was left out of a post celebrating male managers on International Men’s Day has won a unfavourable treatment and harassment claim at an employment tribunal.
Claimant Mr Cooper, who had worked his way up to store manager level after joining Sainsbury’s while he was at school, was signed off sick with anxiety when regional manager Matt Hourihan, who is now the retailer’s director of customer service, did not include him in a message he posted on LinkedIn and Yammer that celebrated International Men’s Day in November 2022.
The message thanked the male leaders who “show up for work each day, put on a name badge and provide support, guidance and leadership to the thousands of colleagues that work in our region”. It included photos and tags of each of the male store managers in his area, but not Cooper.
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Cooper’s wife, who also worked at Sainsbury’s, saw the post. He told the tribunal that not being included caused “untold further damage” to his health, and he had to field questions from friends and colleagues who asked whether he had left Sainsbury’s.
The claimant said he felt excluded, humiliated and violated by the post and that he had been excluded because he was absent on sick leave.
Hourihan told the tribunal that he had not included him because Cooper had deleted WhatsApp, which was used as the main method of communication by the store, and had asked not to be contacted while he was on sick leave. He said that if he had tagged the claimant on LinkedIn, Cooper may have received hundreds of alerts which might have been unwelcome while he was recovering. He did not have a photo of Cooper and did not want to ask him for one while he was off sick.
Cooper raised a grievance against Hourihan, citing harassment and discrimination. The investigator partially upheld his complaint in relation to the LinkedIn post, but said it did not breach Sainsbury’s social media policy and found that any impact on Cooper had been unintentional.
The claimant remained off sick and was invited to a final absence review meeting in May 2023. Adjustments to enable him to return to work were discussed, including a move to an alternative store and role, but although the claimant was open to exploring redeployment, no suitable options were found in a commutable area.
It was decided that his employment would be terminated and an appeal upheld the company’s decision.
Cooper made an employment tribunal claim for unfair dismissal, direct disability discrimination, harassment and unfavourable treatment because of something arising because of a disability, the first two of which were dismissed by the judge.
Employment Judge Brace found that Cooper’s exclusion from the International Men’s Day post was related to his disability, and that he had not been included in the post because of his absence related to that disability.
In judgment he said: “Whilst the tribunal again has sympathy with the respondents’ position, we nonetheless accepted the claimant’s evidence that having people contact him caused him to feel excluded and that it was reasonable for this claimant, as a senior store manager, in those circumstances for him to feel humiliated as a result particularly when there had been nothing to have prevented Matt Hourihan from telling the claimant of the post when speaking to him the day prior.
“We concluded that the treatment was also unfavourable treatment arising from the claimant’s sickness absence, accepting the claimant’s evidence that he felt humiliated. The cause of the treatment was the conscious thought process of Matt Hourihan to not include the claimant from the post as he was absent and therefore this amounted to unfavourable treatment because of something arising from disability i.e. the claimant’s absence at a time that the respondents had knowledge of the claimant’s disability.”
Given that there was no indication of a likely return date, the tribunal found that Sainsbury’s was entitled to dismiss Cooper.
A remedy hearing to decide Cooper’s compensation will be set for a later date.
Sainsbury’s has been contacted for comment.
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