A Sainsbury’s worker with 28 years’ service was unfairly dismissed after a colleague overheard her make a comment about Black Lives Matter and a toy rabbit, an employment tribunal has decided.
Mrs Cunnington, 52, was dismissed for gross misconduct by the supermarket following an incident in June 2020, a fortnight after George Floyd’s murder in Minneapolis and the subsequent Black Lives Matters protests.
But Birmingham employment tribunal found that Sainsbury’s managers lacked impartiality in the disciplinary process and failed to fully understand the supermarket’s own policies. Employment Judge Richardson added: “Given the size and resources of the respondent, the fact that so many fundamental procedural errors were made is unacceptable”.
Cunnington arrived for work at the Bridgnorth branch of Sainsbury’s on 11 June 2020, an hour before the store opened. While carrying out price changes, she picked up a soft black toy, a Bing bunny, and claimed to have said to a co-worker: “Do you think we should be selling these in the light of what is going on with Black Lives Matter?” Another colleague, who went on to complain to management, believed Cunnington said: “Oh I’m offended, Black Lives Matter”.
Given the size and resources of the respondent, the fact that so many fundamental procedural errors were made is unacceptable” – Judge Richardson
The first co-worker replied with words to the effect, “What is that? It looks cute”. The claimant and her co-worker, who are both white, pressed the toy’s voice activation button, laughing at the sound it made. Referring to a recent change in role, the co-worker then said words to the effect, “Perhaps I should get a t-shirt with ‘Old colleagues’ jobs matter’”.
The complainant overheard their laughter, approached Cunnington and asked what she said about Black Lives Matter. The claimant pointed to the toy but was cut short by the complainant who was angry and upset.
The complainant said words to the effect, “Do you not know what colour I am? You are disrespectful”. Cunnington apologised but the complainant walked away saying “You are a disgrace”.
Disciplinary investigations
Suspending an employee pending a disciplinary investigation
The complainant talked to junior manager Ms Brookin about the incident, who asked whether she wanted the matter to be handled informally. The complainant confirmed she wanted it dealt with as a formal complaint under the Sainsbury’s Fair Treatment Policy.
‘Nonsensical’
Brookin made notes in a fact-finding exercise, and shortly after midday suspended Cunnington on full pay to allow a thorough investigation because of an “alleged allegation of fair treatment leading to gross misconduct”. The judgment noted it might be assumed the words “a breach of” were omitted. The co-worker was also suspended.
Brookin told the claimant she could not contact other colleagues or attend work premises, but could discuss the case with a chosen representative. A suspension letter repeated what the judge described as “nonsensical words”: “I write to confirm the decision to suspend you with pay from this date pending an investigation into the allegation of fair treatment under gross misconduct”.
The judge found Brookin’s account at tribunal for suspending the claimant was inconsistent with the written reason in the suspension letter, and the reasons she gave to “myER Adviser”, Sainsbury’s HR helpline. Brookin stated in cross-examination that she suspended the claimant because her presence at work had the potential to create a risk to the investigation, the business, herself or other colleagues.
But the reason Brookin gave to myER Adviser, was that the suspension was due to the seriousness of the issue and the upset caused. Brookin did not consider any alternative to suspension, despite Sainsbury’s disciplinary policy stating that suspension would be a last resort.
A disciplinary meeting was held on 2 July, the purpose of which was stated to be: “Fair treatment/Equality and diversity issue, on the 11th June 2020, you are alleged to have made offensive comments which breach our fair treatment/equality and diversity policy.” It was not stated what the alleged offensive comments were in the disciplinary hearing invitation or which section of which policy she had breached.
Fatally flawed
During the meeting the claimant said she was not racist and that the overheard conversation was misinterpreted. This meeting was conducted by Mr Cowsill, a more senior manager from another store. He reached the decision to dismiss Cunnington who then appealed on the grounds that the correct process was not followed, a lack of duty of care, a lack of diversity training, and disproportionate sanctions. The outcome of the appeal was to uphold the decision to dismiss.
The tribunal found that the disciplinary process was “fatally flawed”. Brookin’s flawed investigation was not corrected by Cowsill, and the subsequent appeal “did not come even remotely close to remedying errors in the disciplinary hearing”.
The judge said: “My conclusion is that the dismissal was both substantively unfair and procedurally unfair. The decision did not fall within the band of responses of a reasonable employer conducting similar proceedings on similar facts.”
The judgment added: “Standing back and looking at the evidence as a whole, the clear impression from the behaviour of the respondent’s managers in the conduct of these proceedings, is one of a lack of impartiality, a lack of understanding of the respondent’s policies and the correct application of them.
“The fact that sensitivities were heightened at the time because of the tragic circumstance of George Floyd’s death, a fact acknowledged by Mr Cowsill, it is all the more reason to take great care that proper procedures are followed thoroughly, objectively and fairly so that justice can be done.”
‘People of colour’
The judge was particularly damning of the appeal, held by senior operations manager Mr Houghton. “I take judicial notice that the use of the words ‘people of colour’ to be currently, generally an acceptable, appropriate and inoffensive way to speak of a person from an ethnic minority and can be used as an alternative to BAME.
“The respondent submitted that the phrase ‘people of colour’ is found by some to be offensive. There was no evidence to support that submission. In contrast the use of the word “coloured” to describe a person of a different ethnicity is not appropriate or acceptable. Mr Houghton confused what was and was not acceptable; in so doing he relied on a completely false assumption to make a finding that the claimant had not changed her behaviour. His decision on this ground alone is sufficient to render the appeal hearing unfair.”
A remedy hearing will be held by the employment tribunal in due course. Cunnington has since secured a job at Marks and Spencer. Sainsbury’s did not respond to Personnel Today’s request for comment.
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