A long-time Sainsbury's employee has won a disability harassment claim in the Employment Tribunal (ET), after he was not included in an International Men's Day post that had been sent to colleagues and published on LinkedIn.
The ruling in Mr D Cooper v Sainsbury's Supermarkets Ltd and Mr M Hourihan serves as a reminder to employers to remain mindful of all employees, whether they are present at work or not, when issuing communications that may be relevant to them.
Background
The Claimant, Mr Cooper, had worked for Sainsbury's since 1993 and worked his way up to store manager. In November 2022, Mr Hourihan, a regional manager at Sainsbury's, had posted on Sainsbury's internal message board and on his own LinkedIn page, a post to celebrate International Men's Day. At the time of the posting, Mr Cooper had been signed off sick with anxiety for several weeks.
The post in question thanked the male leaders who "showed 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." The post included photos and tagged each of the male store managers in his area but did not include Mr Cooper.
Mr Cooper told the ET that the post had caused untold further damage to his health and had led to him receiving messages from friends, colleagues and LinkedIn connections, asking if he had left Sainsbury's. Mr Cooper argued that he felt excluded, humiliated and violated by the post and claimed that he had been excluded because he was absent on sick leave.
Mr Cooper raised a grievance against Mr Hourihan following this LinkedIn post. The grievance investigator partially upheld his complaint in relation to the post, but said that it did not breach Sainsbury's social media policy and found that any detrimental impact on Mr Cooper had been unintentional.
Mr Cooper remained on sickness absence and was invited to a final absence review meeting in May 2023. At this meeting, adjustments to enable his return to work were discussed, including a move to an alternative store and role. However, while Mr Cooper was open to this option, no suitable options were found in a commutable distance. It was, therefore, decided that his employment with Sainsbury's would be terminated and a subsequent appeal upheld the company's decision.
Mr Cooper brought forward claims for unfair dismissal, direct disability discrimination, harassment and unfavourable treatment because of something arising in consequence of a disability.
Decision
The ET dismissed the majority of Mr Cooper's claims, including for unfair dismissal and directly disability discrimination. However, the ET found that the failure to include Mr Cooper on the International Men's Day post sent to all internal colleagues and published on LinkedIn, amounted to both harassment related to disability and unfavourable treatment arising in consequence of disability. As such, those claims, which were against both Sainsbury's and Mr Hourihan, succeeded.
Mr Hourihan told the ET that he had not included Mr Cooper in the posts because Mr Cooper had asked not to be contacted while he was on sick leave. Mr Hourihan reasoned that if he had tagged the Claimant, Mr Cooper may receive hundreds of alerts which might have been unwelcome while he was recovering. Further, he claimed that the did not have a photo of Mr Cooper and did not want to ask him for one, while he was off on sick leave.
While the ET noted that it had sympathy with the Respondents' position, it accepted that Mr Cooper's evidence that having people contact him following the post had caused him to feel excluded and humiliated. The ET went on to say that there had been nothing preventing Mr Hourihan from telling Mr Cooper about the LinkedIn post when he had spoken to him the day before.
Learning Points
This case underlines the need for employers to foster an inclusive work environment, that recognises and values all employees, recognising their contributions, regardless of their current health status or physical presence at work.
Employers should also ensure that a sensible approach is taken to the nature and content of communications, taking care that they are balanced and inclusive. This could include training staff on how to make communications inclusive, particularly on public platforms. Organisations could also look to review their social media policy, with regular audits of these practices taking place to help identify and rectify any potential oversights.
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