07841706203 louise@watersidehr.uk

A recent tribunal decision against Sainsbury’s has highlighted the importance of following a fair process in disciplinary processes.

What was the case?

Mrs Cunnington had worked for Sainsbury’s since 1992 and had 28 years’ continuous service without any disciplinary record.  On 11 June 2020 she was working a morning shift with two colleagues when she made a comment about a toy of Bing that was for sale.  Bing is a CBeebies cartoon character who is a black rabbit.  Mrs Cunnington said she had said to her co-worker “Do you think we should be selling these in light of what is going on with Black Lives Matter?” However, a colleague complained and said that she had said “I’m offended, Black Lives Matter.”  The colleague who overhead confronted both Mrs Cunnington and her co-worker.  Mrs Cunnington apologised.

The colleague then made a formal complaint.  An investigation took place, but the investigation officer failed to get interviewees to check and sign her notes which was part of the Sainsbury’s fair treatment policy.  Mrs Cunnington was then suspended for gross misconduct.  However, no allegations were communicated with her, either verbally or in writing.  No alternative to suspension was considered, despite the policy saying that suspension should be a last resort.

What happened next?

At the investigation meeting Mrs Cunnington denied saying what the complaint had claimed she said, however the co-worker she said it to claimed she did say it.  Mrs Cunnington then attended a disciplinary hearing which was held by another store Manager.  However, she attended without any information on the allegations against her, she was not told what comments she was alleged to have made or what she had breached in terms of company policy.  The Store Manager assumed she had received documentation prior to the meeting but did not check and did not tell her what documents he was using in his decision.  Mrs Cunnington was dismissed as she had breached the equality, diversion and inclusion policy and showed minimal remorse.  Mrs Cunnington had not received any equality, diversity and inclusion training for 16 years.

Mrs Cunnington appealed, but the dismissal was upheld.

What were the tribunal’s findings?
  • That a fair investigation procedure had not been undertaken, however this could have been corrected by the person conducting the disciplinary hearing.
  • The person conducting the disciplinary hearing did not ascertain if there was any truth in Mrs Cunnington’s version of events and the dismissal was based on words that were possibly misheard.
  • The Appeal did not appoint an appeal manager who was not previously involved.
  • Given the size of Sainsbury’s so many fundamental procedural errors were unacceptable.
  • That Mrs Cunnington’s dismissal was unfair
What does this mean for employers?

This is not a binding decision, but it does show that:

  • Employers should follow their own procedures
  • A fair process should be followed even where the alleged behaviour may be offensive
  • Evidence should be obtained from both sides.
  • Investigation notes should be confirmed and signed by the relevant parties.
  • All documentation that will be used in making a decision has been received by the person the allegations are being made against and employers should check that this is the case.