Mr S Dunbarry v Sainsbury’s Supermarkets Ltd: 3202301/2019
| Judgment Date | 08 February 2021 |
| Citation | 3202301/2019 |
| Published date | 18 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 3202301/2019
1
RM
EMPLOYMENT TRIBUNALS
Claimant: Mr Sean Dubarry
Respondent: Sainsbury’s Supermarkets Limited
Heard at: East London Employment Tribunal
Before: Employment Judge John Crosfill
Members: Mrs G Forrest
Mr L Bowman
On: 6, 7, 8, 9 & 13 October 2020
Representation
Claimant: Alexandra Sidossis of Counsel instructed by Pattinson &
Brewer Solicitors
Respondent: Tim Welsh of Counsel instructed by TLT LLP
JUDGMENT
The judgment of the Employment Tribunal is that:-
1. The Claimant’s claim for unfair dismissal made under part X of the
Employment Rights Act 1996 is well-founded.
2. The Claimant’s claims of that the Respondent failed to make
reasonable adjustments under sections 20, 21 & 39 of the Equality
Act 2010 succeeds to the extent set out below.
3. The Claimant’s claim that the Respondent unlawfully
discriminated against him under sections 15 & 39 of the Equality
Act 2010 succeeds.
4. The Claimant’s claim for notice pay brought under the
Employment Tribunals Extension of Jurisdiction (England and
Wales) Order 1994 succeeds.
5. The Claimant’s claim for holiday pay, whether brought as a claim
Case Number: 3202301/2019
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under Regulation 30 of the Working Time Regulations 1998, or as
a claim brought under Part II of the Employment Rights Act 1996
is dismissed upon withdrawal by the Claimant.
6. The appropriate remedies in respect of the successful claims shall
be determined at a remedy hearing.
REASONS
Case summary
1. The Claimant was born on 2 April 1971 and, at the time of the matters that led
to his dismissal, was 48 years of age. The Claimant has learning disabilities, a
palsy and autistic traits. He started working for the Respondent on 5 March
1994 having been found employment under a scheme operated by the local
authority intended to assist persons with a disability find work. Throughout his
employment he worked at the Respondents superstore situated at Low Hall in
Chingford, London. His principal duties were keeping the car park clean and
tidy including gathering up the trolleys and baskets used by the shoppers.
2. The Claimant’s employment was broadly uneventful until 2016 at which point
a customer complained that he had been overfamiliar with her. At this stage
the Claimant was given a warning. In July 2018 the same customer made
further complaints. On this occasion the Claimant was dismissed but then re-
engaged on appeal when it was recognised that assistance that had been
planned in 2016 had not been fully implemented. On 21st of March 2019 there
was a further complaint from the same customer. This led to disciplinary
action being taken against the Claimant who was summarily dismissed with
effect from 13 May 2019.
3. The Claimant has presented claims of unfair dismissal, wrongful dismissal,
and claims under the Equality Act 2010 that the Respondent discriminated
against him under section 15 treating him unfavourably because of something
arising as a consequence of his disability. He has also brought claims that the
Respondent failed to make reasonable adjustments to accommodate his
disability contrary to sections 20 and 21 of the Equality Act 2010. Finally, the
Claimant complained that he had not been paid in respect of holidays.
The issues
4. The parties had drawn up a list of issues which, in the course of the hearing
before us, was agreed and finalised between Counsel. We shall address each
of the issues raised in that list below but shall not set out the issues in these
reasons other than by referring to the issues identified.
The hearing
5. Despite the Covid 19 pandemic this hearing was conducted face-to-face due
to concerns about the Claimant’s ability to participate in a hearing held by
Case Number: 3202301/2019
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video hearing. As the capacity of the hearing room was limited to 10 people
we utilised an additional tribunal room when there were more observers than
capacity in the main hearing room. We were able to set up a video and audio
link which worked remarkably well for the duration of the hearing.
6. Shortly before the hearing the Claimant’s solicitor had suggested that the
Tribunal service should provide a facilitator for the Claimant. That request was
refused as it would have necessitated an adjournment. It was proposed that
the Claimant’s father be permitted to sit with the Claimant in the hearing and
in the witness box solely for the purposes of assisting the Claimant to
understand any questions and the process being followed. This measure was
adopted without any objection from the Respondent. There was no objection
taken to anything said or done by the Claimant’s father during the hearing. We
are satisfied that he understood the boundaries of his role.
7. We were told that one of the Respondent’s witnesses, Mr Davies, was
shielding and was reluctant to attend the Tribunal in person. Without any
opposition from the Claimant we granted Mr Davies permission to give his
evidence by video link. He was able to access the CVP room without too
much difficulty and was able to view the entire tribunal room during the
hearing. He gave evidence from his office in one of the Respondent’s
supermarkets which provided him with a good Internet connection. Mr Davies
had access to all the documentation that had been placed before the tribunal
either on paper or electronically.
8. The Tribunal could not accommodate a face-to-face hearing on the final day
of the hearing during which the Tribunal deliberated. We had agreed with the
parties that we would deliver judgment via CVP if it was possible to do so. All
the parties indicated that they believed they had the technology necessary to
participate in the hearing. Unfortunately, we ran out of time and, whilst we
were able to complete our deliberations, we recognised shortly after lunchtime
that there was no realistic possibility of being in a position to deliver an oral
judgment to the parties. We apologise for raising the parties’ expectations but
we did not want to rush our deliberations in a case which is of real importance
to all the participants. Unfortunately, having recorded our deliberations in note
form in anticipation of giving an oral judgment it has taken the Employment
Judge some time to find an opportunity to complete the task of providing this
judgment and reasons. This has been a consequence of the large volume of
cases in the tribunal. We apologise to the parties for the delay.
9. At the outset of the hearing we discovered that the Tribunal had inadvertently
informed the parties to supply a copy of the bundle electronically together with
electronic copies of all witness statements. Whilst perhaps the parties could
have anticipated that this direction was inappropriate for a face-to-face
hearing we apologise for the inconvenience that this caused. The trial bundle
ran to some 550 pages and the tribunal’s administration did not have the
resources to provide the Tribunal with sufficient copies. We are grateful for the
steps taken by the Respondent’s solicitors and Mr Welsh who laboured
throughout the first day of the hearing to instruct commercial copiers to
provide us with the required number of bundles. The Tribunal had made
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