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Sainsburys worker wins unfair dismissal claim after inappropriate behaviour due to head injury

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mr C Kelly v Sainsbury’s Supermarkets Ltd  Mr Kelly’s employment with Sainsburys as a trainee manager began in March 2000. He was promoted to duty manager in 2002 and appeared to have good prospects. Unfortunately, in 2004, Mr Kelly was involved in a serious road traffic accident. He was in an induced coma for about a month and remained in hospital for a number of months thereafter.

Upon his return to work, Mr Kelly’s career appeared to stall and he did not make the progress that had been expected. He was unable to continue with his training as a manager. There were concerns about his progress and his performance, identified by Mr Kelly as related to issues with regard to his memory after his road traffic accident.

In 2010, Mr Kelly was issued with a written warning because he had said to a colleague, “I have to insult you now you are leaving” and then called her, “a Whore”. Mr Kelly was also accused of standing behind other female colleagues and customers and rubbing their shoulders.  Mr Kelly said that since his road traffic accident, his behaviour had changed. He was apologetic. He recognised that his conduct had been unacceptable and assured his employer that he would change.

Mr Kelly was fired for sexual harassment and inappropriate behaviour. He then sued his employers for disability discrimination and unfair dismissal as he said he was prone to child-like behaviour after his accident.

Employment Judge Martin Warren ruled in Mr Kelly’s favour despite saying it was ‘very obvious’ that an employer could not have a worker behaving in the way he did. Judge Warren added that Sainsbury’s did not consider a 2011 report from a psychologist that said some of Mr Kelly’s inappropriate behaviours may be because of his head injury.

‘Sainsbury’s disregarded (Mr Kelly’s) disability, it had the 2011 report on file and did not consider it,’ the judge said. ‘Sainsbury’s did not appear to even consider the possible, (in our view obvious) impact of Mr Kelly’s injury on his behaviour.’

Mr Kelly’s compensation will be decided at a later date.

A Sainsbury’s spokesperson said: ‘We are an inclusive retailer and do not tolerate abusive behaviour. We are very disappointed by this judgment and are reviewing our next steps.’

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