If I were to tell you that one of a 5 foot 4 inch pregnant woman and a 6 foot man with previous experience in the prison service had harassed the other, which would you assume was the harasser? Assuming you’ve read the title of this blog, you’d correctly guess the pregnant woman – however most employers, including Tesco, would probably assume the reverse.
The case of King v Tesco Stores Limited may act as a reminder of the age-old adage to never judge a book by its cover – this is especially the case when considering that many employees may be dealing with ‘invisible’ disabilities. Failure to heed this warning could land employers in front of an Employment Tribunal, footing a heavy bill for damages.
Background of the case
The claimant in this case was employed by Tesco as a Customer Assistant and was subject to workplace harassment by his manager. The claimant also suffered from PTSD as a result of an incident during his time employed by the Prison Service. During December 2018 a dispute arose between the claimant and his line manager regarding his working hours and overtime commitments. After an initial back and forth on the warehouse floor, the claimant was invited to a staff search room to further discuss the issue. During the meeting with his line manager, the claimant attempted to leave the room. When the claimant tried to leave, his line manager began to block his path to the door, used her foot to try and prevent the door being opened, and made ‘robust physical contact’ with the claimant by grabbing at his arm. The claimant, becoming ‘increasingly anxious and borderline desperate to get out of the room’ due to his PTSD, was eventually able to shuffle his way past his line manager.
Having been subjected to both unwanted physical contact and confinement within an enclosed space, triggering his PTSD, the claimant brought an internal complaint for workplace harassment by his manager. In a meeting to investigate the complaint, the line manager stated that:
“I didn’t think that [the claimant] would feel threatened by me – I am little and I am a woman. If I made him feel that way – I didn’t expect him to be intimidated, from a human perspective – he’s a 6 foot guy – I am a little woman. I felt the same way.”
The complaint was concluded without any formal investigation, the decision being reached without management even viewing the CCTV footage outside of the staff search room where the incident took place.
The Tribunal’s Decision
The Tribunal ruled that the claimant had been directly discriminated against and harassed on the grounds of his sex.
By preventing the claimant from leaving the room where he was being interviewed, the claimant’s line manager had engaged in unwanted conduct that had the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. The claimant’s line manager had previously stated that she did not think these actions would be intimidating due to the fact that the claimant was a 6 foot man and she a 5 foot 4 inch woman – therefore, her actions were partly based upon the claimant’s sex, which amounted to unlawful harassment. The Claimant’s subsequent dismissal from the store due to supposedly unauthorised absences as a consequence of the incident was also held to be an act of harassment related to sex.
The lack of investigation by management was then scrutinised by the Tribunal as they neglected to acknowledge that he was being harassed at work by his manager. The Tribunal came to the conclusion that part of the reason that the incident was not investigated was management’s assumption that “a little pregnant woman would not be intimidating to the claimant, a big man”. Having decided that this assumption would not have been made by management had the claimant been a woman, the Tribunal ruled that this amounted to direct sex discrimination.
Tesco have now been issued with a £47,690.91 bill for damages, including a £26,300 award for injury to the claimant’s feelings.
This blog was written by Michael Green, paralegal at didlaw
