Steele vs Asda Stores Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 December 2016 |
| Docket Number | 02252/15IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Asda Stores Limited |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 2252/15
2253/15
2375/15
CLAIMANT: Jason Steele
RESPONDENT: Asda Stores Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and was not subjected to unlawful disability discrimination. The claimant’s claims are dismissed in their entirety.
Constitution of Tribunal:
Employment Judge: Ms J Knight
Panel Members: Mr J Hughes
Ms M Mulligan
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Ms R Best Barrister-at-Law instructed by Pinsent Masons LLP.
Issues
- The claimant lodged originating claims with the Office of the Tribunals in which he claimed that he had been unfairly dismissed and subjected to unlawful disability discrimination
- Other complaints of sex discrimination, breach of contract, the right to receive an itemised pay statement were withdrawn by the claimant at a Case Management Discussion on 18 December 2015. The parties then agreed a List of Legal and Factual Issues to be determined by the tribunal
- At the Hearing, the claimant clarified that his disability discrimination claim was limited to an allegation that the respondent had failed to make reasonable adjustments for him from the date of his suspension from work, the investigation of allegations made against him by a female colleague and the disciplinary process which led to his summary dismissal for gross misconduct and not to any earlier events.
- The respondent denied that the claimant was unfairly dismissed or that there was a failure to make reasonable adjustments for the claimant. It was disputed that the claimant had a disability within the meaning of the Disability Discrimination Act 1995 (as amended) at the relevant time, but that if the tribunal found that he did, the respondent was not aware of that disability.
Sources of Evidence
- The tribunal considered the witness statements and oral evidence of the claimant, Mr Jason Steele, on his own behalf and of Mr Mark Kernohan, Mr Oliver Martin, Mr Raymond Warke and Mr Simon Walsh on behalf of the respondent. The tribunal also took into account documentation contained in an agreed trial bundle to which it was referred during the course of the hearing.
Findings of Fact
- The tribunal made the following findings of relevant fact on a balance of probabilities:
1) The claimant, Mr Jason Steele was employed as a Nightshift General Assistant by the respondent, Asda Stores Limited until his summary dismissal for gross misconduct on 21 July 2015.
2) In July 2014 the claimant went on a prolonged period of sick leave. His GP provided statements of fitness for work that he was unfit for work due to “anxiety”. The claimant told the tribunal that he has suffered from anxiety and depression for most of his life and that his symptoms include low mood, difficulty sleeping, loss of interest in normal activities and friends, exhaustion, a negative outlook on life, irritability, lack of focus and concentration and a constant feeling that something bad is going to happen. He had given up his hobbies like training at the gym and martial arts and struggled with social activities. An extract from the claimant’s GP notes and records was in the hearing bundle. These detailed the claimant’s consultations with his GP from 10 May 2004 up until 24 July 2014. An entry dated 31 January 2014 stated that the claimant had a “generalised anxiety disorder”. On 24 July 2014 the claimant attended with his GP and “discussed anxiety - poor sleep pattern with shift work etc”. These notes did not contain any information as to how the claimant’s anxiety affected his day to day activities.
3) The respondent arranged for the claimant to be assessed by an Occupational Health Advisor on 8 August 2014 due to his continuing sickness absence. The claimant told the Occupational Health Advisor that the reason for his absence was “low mood” due to domestic and financial worries and the death of his best friend. While the occupational health advisor reported on 25 August 2014 that the claimant was still unfit for work at that time but did not suggest that the claimant had any disability or that any adjustments should be made for him. The claimant signed himself fit to return to work on 2 September 2014 because he said that he felt pressurised to return to work.
4) The respondent’s disciplinary policy contains examples of conduct which may amount to gross misconduct. These include: “Serious harassment, discrimination or bullying of other colleagues, either generally or on grounds relating to difference on company premises or at a social or training event.” The Social and Media policy gives further examples of gross misconduct including “serious harassment, discrimination or bullying of other colleagues which occurs out of work” involving emails and Facebook messages. The respondent’s policies provide for the suspension of an employee where there are grounds to believe that a gross misconduct offence may have been committed and it would be unreasonable to take disciplinary action without further investigation and/or it would be unreasonable to allow the colleague to continue in the job whilst further investigation takes place. The suspension policy requires a risk assessment to be carried out before an employee is suspended and the time spent on suspension should be kept to a minimum and reviewed every two weeks.
5) On 17 December 2014 a female nightshift colleague, AK, sent a letter to the respondent complaining that from 16 June 2014 onwards she had been sexually assaulted by two male colleagues, LG and KG; that in the following months they sexually harassed her by sending her texts containing inappropriate messages and photographs of a sexual nature; and that in or about 5 December 2014 LG and KG had spread untrue sexual rumours about her. She further alleged that she had rejected advances from the claimant who had sent her extremely abusive text messages containing several references to incidents at work involving LG and KG. She stated as a consequence of the actions of LG, KG and the claimant, she no longer felt safe in work.
6) The claimant was informed on 18 December 2016 that he was being suspended from work. The claimant’s line manager carried out a risk assessment on 19 December 2014 and confirmed that it was appropriate to suspend the claimant pending the investigation into AK’s allegations. His suspension was confirmed to the claimant by letter dated 19 December 2014 which also invited him to attend an investigatory meeting on 23 December 2014 to answer allegations made against him of “intimidation, bullying and harassment between the dates of 17 June 2014 and 20 December 2014”. It was advised “these allegations are deemed as gross misconduct and may lead to your dismissal”. The claimant was informed that the meeting was to be conducted by Mr Mark Kernohan, General Store Manager, Ballymena and that he had a right to be represented at the meeting by a trained colleague representative, a work colleague or a trade union official. The claimant was advised that his suspension should not be taken as an indication that the respondent had already reached a conclusion about disciplinary action.
7) The claimant was unwell on 23 December 2014 and so the investigatory meeting was rearranged for 6 January 2015. He was accompanied by his trade union representative, Ms Michaela Lafferty. Mr Kernohan informed the claimant that he was investigating bullying, intimidation and sexual harassment in the workplace against the claimant which could amount to gross misconduct in accordance with Asda policies. Mr Kernohan asked the claimant to respond to AK’s allegations that the claimant had bullied, intimidated and harassed her by way of text and Facebook messages. Screenshots of these messages were shown to the claimant at the meeting. The claimant told Mr Kernohan that he had enjoyed a good working relationship with AK, which was flirtatious at times. She sometimes asked the claimant to smell her...
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