Sainsbury's Supermarket Employee Fired After Being Attacked At Work, Wins Compensation At Employment Tribunal

Taking an employer to the employment tribunal can be a very stressful time for all that are involved, the employee, employer and the witnesses involved. I have recently taken my employer to the employment tribunal after my employer dismissed me for fighting. I won my case and was awarded compensation and back pay. I was also awarded re-engagement by the tribunal which not many people receive. I owe my winning outcome to my lawyer and solicitor and also to the few case files that I have read online. I have decided to post my whole tribunal case online only at Hubpages because of two reasons, one, because I know that it will help other employees and employers who are going through this process, and two, because I can. Yes, because I have won my case I am allowed by law to publish the outcome as long as I tell the truth about the case and the outcome and do not lie in anyway. I have decided to publish my initial statement to the tribunal along with statements from the witnesses involved, ending with the tribunals final statement and their final ruling. Please be reminded however that if you have agreed a settlement with an employer and have signed a confidentiality agreement with them then most probably you will not be able to publish your case. I can because I turned down the £500 settlement that was initially offered to me and instead took my employer to the tribunal and won my case.

The very first thing that I did was fill out an ET1 form, this is a form that is sent to the Tribunal explaining your reasons why you are taking your employer to the Employment Tribunal. If accepted by the Employment Tribunal, which mine was, the employer is then sent a copy of the ET1 and has to reply to the Tribunal within a set period. Once the case has been accepted everybody involved, the employee, employer and witnesses have to write their statements. These statements are then read out on the day of the hearing by the people involved.

If you are in the process of writing your statement always refer to your ET1 form, explain your reasons in simple steps for the Tribunal to understand. The best way to do this is to keep to the points of why and how you have come to make the decision to take your employer to the ET. Explain it from start to end like a story, making sure that you keep to the point, and more importantly keep to the facts.

This is my statement, I am the claimant Freddie Mehmet

­­­­­IN THE EMPLOYMENT TRIBUNAL CASE NO: 2313194/2010H

LONDON SOUTH

B E T W E E N

MR F F MEHMET

Claimant

V

SAINSBURY’S SUPERSTORE LIMITED

Respondent

CLAIMANT’S WITNESS STATEMENT

I, Freddie Mehmet, of ** ***** ******* ******* *****, South East London, am the Claimant in these proceedings and I will say as follows:

My employment history with Sainsbury’s

1. I am 34 years old. I am British, of Scottish-Turkish ethnic or national origin. My father is of Turkish national origin.

2. I began working for Sainsbury’s in 1995 at their Forest Hill branch. It was my first job after leaving school and I worked at the Forest Hill branch for five years. I worked in a number of positions, starting as a Trolley Assistant and then moving to a Produce Assistant, Back Door Assistant and finishing as a Nightshift Supervisor.

3. I then went to work at the New Cross branch of Sainsbury’s for two years as a Produce Supervisor and an Assistant Fresh Foods Manager. I then went to work in the Greenwich branch as a Produce Supervisor for just over a year.

4. I stopped working for Sainsbury's around the end of 2003 and went to work for a security company called Securiplan. This involved working in many Sainsbury’s “Local” stores around London. After a year in the security field I decided I wanted to return to work for Sainsbury’s. In 2005 I began working at the Penge branch as a Night Shift Assistant.

5. During my many years working for Sainsbury’s, I was loyal and hard working. I put the company first in my actions at work. The thought of never being able to work again for Sainsbury’s, which had been such a big part of my life for 15 years, after the events I’ll explain below, is still a shock to me.

My employment at Sainsbury’s Penge

6. At Sainsbury’s Penge, I was appointed as a Nightshift Fresh Foods Assistant. I had a great deal of experience working in the Fresh Foods department. Sainsbury’s Penge already had a night shift on grocery but I was to be on my own working in the Fresh Foods department. My job involved dressing and replenishing the Fresh Foods section. It was a trial position and it was up to me to prove that it would be beneficial to the company having a night shift worker specifically for Fresh Foods. After a few weeks I was told that it had been a success, and more staff were employed in the Fresh Foods department.

7. During my time at Sainsbury’s Penge, from 2005 to 2010, I worked with four different Store Managers. The first three Store Managers seemed very happy with my work, so much so that I was asked on several occasions to take on a management position due to the previous experience that I had. The problems I experienced leading to my dismissal, set out below, were under the fourth Store Manager, Paul Miller. My experience with Paul Miller was that he had some favourites amongst the staff, with whom he was quite cliquey, and he kept most others at arm’s length. I just got on with my work and minded my own business, except when I discovered thefts occurring at the store.

The background to my disclosures of thefts in the Penge store

8. In 2009, I came to believe that my night shift colleague, Sami Shwali, another Assistant like me, and Jane Palmer, Acting Team Leader on Sundays were stealing from the store. I’ll say more about the thefts below, but I want first to explain about the culture and atmosphere which existed in the Penge store and why I felt unable to raise my concerns directly within the store.

9. When I discovered the thefts were taking place, I felt that I should really speak to my store manager Paul Miller, but by this time he had become very close to John Collins, the Night Shift Manager and to Jane and Sami.

10. I was also aware of times in the past when colleagues had made allegations of wrongdoing against other colleagues, including allegations of theft and of racial abuse concerning the Penge store. When these matters were brought to Paul Miller’s and John Collins’ attention, I understood that the staff who complained had been subjected to bullying, victimisation and a lack of confidentiality after reporting the allegations. I also heard that complaints about misconduct by staff in the Penge store had not been properly investigated. I heard these things from colleagues such as Sharon Lawrence and Anthony Miller who had either made, or were believed by other staff to have made, allegations about thefts in the Penge store. I mention both these people further below.

11. I mentioned my concerns about the lack of in-store confidentiality in both the internal Sainsbury’s investigation into the incident between Sami and me (see pages 103 and 104 – investigatory meeting; pages 203 and 208 – appeal meeting), and in my claim to the Employment Tribunal (see page 4). I also mentioned my concerns about inadequate investigations into allegations made in the store in the past, and my concerns about the victimisation of those who complained, in both the internal Sainsbury’s disciplinary process (see page 171 – disciplinary hearing; page 203 – appeal meeting) and in my ET1 form (see pages 5 and 8)

Previous problems in response to complaints of race discrimination

12. Sami Shwali, who was to assault me on 14 February 2010, had a particular history of racially abusing and physically abusing my colleagues in the company, and a blind eye had been turned to this in the past by John Collins and Paul Miller.

13. On one occasion, I was sitting in the smoking room in the canteen with the night shift and Sami referred to my colleague Khair as a “Paki”. I and other colleagues in the room told Sami that he shouldn’t speak in that way and that it was not acceptable. Sami’s response to this was to open the door to the smoking room and call out “Hey Paki” at the top of his voice throughout the canteen. I mentioned this during the disciplinary hearing (see page 171).

14. This instance of racial abuse would have been clearly heard by everybody sitting in the canteen, including John Collins and Andrew Barber, a supervisor on the shift at the time. I understood from John that Sami was spoken to informally but no disciplinary action was taken against him and it seemed to have no effect on his attitude or behaviour.

15. Sami had also called another member of staff, whom I know as "Matheus", a "black c**t". When Matheus had complained to John Collins about this, I understand from Matheus that John did nothing. Matheus told me that he then told Paul Miller, who had told him that he did not want to hear about racism in his store and Paul Miller told Matheus to stop “making accusations”. I was concerned to hear this and so I spoke to John Collins about this issue. John told me that the reason Paul Miller did not believe Matheus was because Matheus had made a complaint against John only weeks earlier for racial discrimination. It appeared that Paul did not want to believe that John and Sami were racist. Instead Paul accused Matheus of making up allegations and gave him an informal warning. I told John of my disappointment that, in light of Sami’s previous conduct, he had not received at least a formal warning for calling Matheus a racist name. John told me that it was Sami’s word against Matheus’s and said to me that he did not think the situation was serious enough to give concern. So, twice I had a conversation with John Collins about Sami’s racial abuse and yet no action was taken against Sami.

16. Khair later transferred to the Norwood Sainsbury’s store as did Matheus.

Previous problems in response to allegations of wrongdoing

17. In 2009, allegations of theft were made to John Collins by a colleague Sharon Lawrence. Sharon had seen another colleague Andrew Barber steal a sandwich from the shop floor and told John what she had seen. I understood, after having a conversation with Andrew Barber at the time, that John Collins went to Andrew Barber, told him what Sharon had said and advised him to “watch Sharon in future” as she could not be trusted. Andrew told me that he was very upset with Sharon for telling John Collins. It was not clear if Andrew had in fact paid for the sandwich but what was clear was that John Collins had breached Sharon’s confidence and caused a rift between them. I mentioned this issue in the investigatory meeting (see page 104), in the disciplinary meeting (see page 171) and in the appeal meeting (see page 203).

18. Another time, a colleague called Chris, whose job was to scan the tickets on the shelf, worked on a night shift. He saw another colleague, Abdi, steal an item from the shelf. Chris did not go to John Collins to report this as he did not know John, but instead left a letter on Paul Miller’s desk reporting that he had seen Abdi steal something. I learned this from Abdi. It turned out that John Collins had become aware of the letter left for Paul Miller by Chris and had told Abdi not to trust Chris in the future because he was a “grass”. I mentioned this incident in the investigatory meeting (see page 103) and in the appeal meeting (see pages 203 and 208). This was another example of information passed on in confidence and the confidence being breached.

19. Another example of a similar situation was in 2009. John Collins held a meeting in the canteen and informed all the colleagues present that it had been reported to him by Paul Miller that someone had phoned the Sainsbury’s “Confidential Help Line” and had reported a theft on the night shift. The person had not given their name but had reported that they were working on the drinks section and had seen somebody steal a drink, which John then told us.

20. It seemed from what followed that there was less concern about the theft than knowing who the “grass” was. A few hours later Sami went around the shift and told everybody, including me, that a colleague called Anthony Miller had made the phone call. I questioned this, but Sami, Jane Palmer and John Collins were convinced that it was Anthony. They considered the information that they had been given (the day the call was made, the details of the phone call, that the person who made the call said they had been working on the drinks department, the people working on the drinks department on that night) and became convinced that they had found the “grass”. I subsequently saw Anthony being bullied: Jane Palmer made comments about his personal hygiene and said that he did not support his children. Shortly after this, Anthony’s car window was smashed in the car park in the middle of the night. I also mentioned Anthony’s treatment in the Sainsbury’s internal procedure (see pages 103 and 171).

21. John Collins had asked me on several occasions in 2009 for my advice on how to handle Sami. John seemed to feel that Sami was getting out of control and that his behaviour was worsening. For instance, I asked Khair on one occasion how he got a gash on his face. Khair told me that Sami had thrown a hard plastic crate at him. On another occasion Sami had attacked a colleague named Andrew Barber. I mentioned this during the disciplinary process (see pages 103, 105 and 172). This same incident was mentioned during Sami’s investigatory interview so the store was aware of his history (page 91). I say more about this incident below.

22. I believe that John knew that incidents like this were common place, as he referred to Sami more than once to me as a "loose wire", or words to that effect. But John Collins was part of the same clique, with Jane and Sami, and would let Sami get away with breaking the rules.

23. I also suspected that John had let Sami get away with so much wrongdoing because he knew that if Sami was to get caught then Sami would drag John down with him, so instead John turned a blind eye to Sami on many occasions.

24. This is the type of culture that existed in the Penge store in 2009 and early 2010.

25. By the time of the thefts I witnessed, I believe that John had become very close to Sami, although I only discovered in these proceedings that John was Sami’s representative in Sami’s investigatory meeting (see page 90). I also believe that John sat in on Sami's disciplinary because not only was Sami's job on the line but John would have been worried about his own job too. During Sami’s disciplinary meeting, John and Sami said that I was jealous of Sami somehow (pages 94 - 95). This puzzles me as I was not jealous and I was not given a chance to respond to this point. I was upset with Sami over the thefts from Sainsbury’s but I had been taking action about that by reporting to Brenda, as I explain below.

The thefts – what I witnessed and how I reported it

26. I only worked Friday, Saturday and Sunday nights, from 9pm to 7am.

27. In late 2009, one Saturday morning, I first witnessed, Jane and Sami come down the end of my aisle with a trolley. I noticed that they were behaving very oddly, bending over the trolley and looking around them. I walked past them and I saw that there was a large bottle of Tia Maria under a jacket on their trolley. I knew that this was Jane’s favourite drink and wondered why she felt the need to have it hidden in her trolley under a jacket. This was not a customer trolley but a work trolley that she would have to return to the far end of the warehouse. It seemed odd to me that she felt the need to pick this item up now rather than later. Because of my security experience I decided to watch them both. I watched Sami and Jane grab the bottle under the jacket and place the bottle in Jane’s bag. I then followed Jane upstairs and watched her exit the building with the bag. Subsequently, I watched them both and their trollies every Friday, Saturday and Sunday morning, I watched them steal items, such as bottles of Tia Maria, Jack Daniels and gin. They placed them under Jane’s coat, on her trolley. I would then watch Sami and Jane remove these items and place them in Jane’s bag. Jane, who was a supervisor on Sundays, would then go upstairs and clock herself out and clock Sami out.

28. This is against procedure. Sami would then cover the back exit and phone Jane to give her the all-clear. She would go downstairs and leave the building with these goods and place them in Sami's car.

29. I also saw Sami leave the premises in the middle of his shift with bags and boxes and, on the store security camera, I saw Sami placing these goods in his car. Sometimes he would drive away with these items and return around 20 minutes later. Sometimes he would leave the items in his car overnight.

30. Sami bragged to me that he had stolen items such as a hoover and a blu-ray player. He was very confident and asked me if I wanted such items too. When we had a big delivery of high-value goods (which we did in the months leading up to Christmas), Sami would walk around the shop floor and offer goods to other staff. On one occasion, Sami came to me and told me that a shipment of Playstation 3s had been delivered and that if I wanted one to come with him. I refused, as I did when he offered me other items. On one occasion my colleague Abdi told me that Sami had offered him a digital camera. Sami had told Abdi that there was a box of cameras that had just been delivered and Sami wanted one. The problem was, Sami said, that if he took one from the box then, when somebody came in the next day and put them on to the shelf, it would be obvious that a camera had been taken. Sami explained that he would have to take the whole box of cameras. I believe that it was a box of 8 - 10. Sami asked Abdi on condition that Abdi helped Sami keep an eye out. Abdi refused and told me instead. Another time, Abdi told me that he had seen Sami leave the building with a box and put it in his car. Abdi was about to tell John Collins about this. I knew that John would tell Sami, so I advised Abdi not to. However I did not want Abdi thinking that I was working with Sami (as you can imagine somebody would if advised to keep quiet about a crime), so I explained to Abdi that security were watching and that there was an investigation on Sami.

31. During the disciplinary process, I mentioned some of the thefts that I had witnessed (pages 103, 171, 172; see also my ET1 form (see page 4). My solicitors have asked the Respondent’s representatives for copies of any records of my reports of the thefts and the investigation into Sami and Jane. All that has been disclosed are the interviews which were carried out with Sami and Jane on 28 January 2010 which are at pages 66 – 82 of the bundle.

32. I was troubled by what was happening as I was loyal to Sainsbury’s, but for the reasons I have outlined above, at first, I did not know where to turn. After having conversations with my partner, Layla Farhat, who works in another Sainsbury’s store, we decided to contact Brenda Anderson.

33. Brenda was the in-store detective for the Sydenham branch but also covered Penge. I thought Brenda was a good person to report my concerns to because I couldn’t trust the Penge store managers.

34. Layla spoke to Brenda on my behalf. This first happened around October/November 2009. All of my information about the conversations comes from Layla, who is giving evidence, so I haven’t included it in my statement.

35. I understand that Brenda assured Layla that she would not inform Paul Miller of the investigation, but I found out in my appeal meeting with Paul Miller that Brenda told him (see page 203).

36. I felt that I was doing what was best not for myself but for the company. For three months I spied on Sami and Jane. My relationship with them became distant and it was around this time that John stopped confiding in me.

37. When I saw Sami and Jane steal something, I would report it to Layla. She would then pass on information to Brenda.

38. At times Sami appeared to become suspicious of my attempts to follow him.

39. On a few occasions when Sami had left the building in the middle of the night, I asked John Collins where Sami had gone. John told me to go back to work and mind my own business. Sami confronted me once he returned and asked me why I was asking John of his whereabouts, which meant John was confiding in Sami.

40. On one occasion I remember we had another manager, Mark Jenner, run the nightshift for a few weeks. Sami had left the building with some bags and I asked Mark where Sami had gone. Mark told me that Sami was working on the shop floor. I told Mark that Sami was not working on the shop floor and that I had seen Sami leave the premises and drive off in his car. Mark didn't seem to care and gave me the impression that he wasn't interested.

41. I understand that Sami and Jane were interviewed by Brenda Anderson and her colleague Donovan Parker about the alleged thefts on 28 January 2010 (typed notes are pages 72 – 75 and 80 - 82).

42. I spoke to two other colleagues about my concerns, after the investigation had begun. Sharon Lawrence often spoke to me because she felt bullied and victimised by John, Sami and Jayne. I told her and Abdi that there was an investigation into Sami and Jane and that they would be leaving the store once they had been caught. The notes of my appeal hearing suggest that I had told only one other person and that I had contacted the helpline (see page 206). I believe that the notes are inaccurate. I did not say that I had told only one person and I didn’t say that I had phoned the helpline. This may be a misunderstanding of my reference to the confidential helpline incident which I’ve explained above.

TalkBack

43. "TalkBack" was a form that colleagues fill out once a year, as a confidential way of informing Sainsbury’s Head Office what was going on in their store and how they felt about the management. I mention “Talkback” because this was what I was trying to discuss with Sami when he became abusive and tried to attack me on 14 February.

44. Sami had recently decided to become the Staff Council representative for the Night Shift. He effectively ousted the previous representative, Sharon Lawrence.

45. I was in the staff canteen two or three shifts before 14 February 2010 and I overheard Justin Dillon, one of the managers, ask Sami if he had got everybody to fill out the TalkBack on the shift. Sami said that he had, apart from Lesley because she was on holiday at the time. I interrupted and asked Justin what they were talking about. Justin told me that he was referring to TalkBack and he asked if I had completed it. I said that I hadn’t and neither Sami or John Collins had even spoken to me about it. I was concerned that Sami was using his role to censor what colleagues might say about the night shift under John’s management.

46. Sami had then told Justin that everybody had filled it out and that it was only me that he had made a mistake with. I didn’t believe Sami. I asked everybody in the room if Martin Kelly, a colleague, had filled it out and Jane Palmer replied “Yes he has”. This was all I said to Sami and my question was aimed at Sami, Jane and Justin.

The events on Sunday 14 February 2010

47. On Sunday 14 February, Martin Kelly and I spoke about TalkBack. Martin said that he had not been asked to, or given the chance to, fill the form out. I was surprised, as I had asked Sami, in the presence of Jane and Justin if Sami had told Martin, and Sami and Jane said that he had. I told Martin that I would speak to Sami about it.

48. I walked over to Sami and told him that Martin had not filled out the TalkBack form. Sami said that he had. Sami said that he would ask Martin and we both went to Martin, who was working on the Cereals aisle. Martin said to Sami that he had not filled out this form. Martin said to Sami that in all the years he had worked for Sainsbury’s he had never missed the opportunity to fill out the TalkBack. I asked Sami why he was telling Justin that everybody on the night shift had filled the form out when it was clear that people had not.

49. Sami became rude and aggressive towards me, telling me to mind my own business. This is when I first walked away from him as he became intimidating.

50. Sami then followed me and tried to continue the conversation, and I said that it was his responsibility as Staff Council rep to get the forms in and if he wasn’t going to do it properly he should let someone else take the position.

51. He then started to curse me and call me a “c**t”. I tried to ignore him. I told Sami that I would bring the matter up with Justin Dillion and it was then that Sami became very hostile towards me.

52. Sami approached me down the fresh foods aisle. He continued calling me a “c**t” and was very angry at me very quickly. It seemed that I was on my own with Sami. He kept call me a “c**t”, telling me to mind my own business and that I was “sad”. I asked Sami to go away and to stop talking to me like that. I was, annoyed with him and I told him at some point to stop or I would lose my temper. He seemed to be looking for a reaction.

53. Sami came closer to me and I walked back until I was against the shelving. I had the shelving behind me and a herb rack to my right hand side. I could feel my adrenaline rising due to fear. I told Sami to leave me alone. Sami’s voice drew the attention of two of our colleagues, Nana and Joseph. They stepped in between us.

54. Sami kept calling me names, a “c**t” and a “f***ing c**t”. I stood in silence while Nana tried to calm Sami down. Nana shouted at him to stop the abuse. However when Edita then came around the corner, Sami lunged forward at me with his leg. I couldn’t move out of the way - I had the shelves behind me and I could see Edita, and another female colleague, Kadieshia, watching from a few metres away. Nana and Joseph were blocking my exit. I reacted instinctively by pushing/punching Sami back in his face. I believe that I did not strike him hard – it was more a push than a punch - but he overreacted and went down on one knee and screamed that I had hit him. It was like a footballer on TV exaggerating an injury to get an opponent into trouble with the referee. He had tried to intimidate me into striking back and it worked.

55. As soon as I struck Sami and he was no longer a threat, I tried to remove myself from the situation. I turned around and could see Herman, a supervisor. I walked towards him to explain what had happened, Sami then came running towards me, calling me a “Turkish C**t” over and over again. This made me feel very upset. I said in the appeal meeting how much this offensive language hurt (page 208). I also felt angry. I thought that Sami was provoking me by referring to my nationality and being derogatory. Herman could see I was getting upset and was going to lose my temper, so he took me to the checkouts.

56. I walked off towards the checkouts with Herman while Joseph and Nana restrained Sami. When I was at the checkouts I explained to Herman what had happened but Sami came running at me again and kicked me in the leg. This was hard enough to hurt me and I was bruised afterwards.

57. Herman tried to restrain Sami and I stepped back as Nana and Joseph also intervened again. I then went upstairs with Herman and Martin Kelly also followed us from behind.

58. As I was explaining to Herman upstairs about what had just happened and that I wanted to go home, Sami came running into the canteen and tried to attack me for a third time. However, Herman forced Sami out of the canteen. Sami started to scream that he had phoned the police and that I should go out side and fight him and that he would kill me.

59. Herman initially said that I should go back to work and that he would promise to keep Sami away from me. Herman had only a couple of hours left to complete the work that night and this seemed to be his priority.

60. I told Herman that Sami was not going to leave me alone and that I wanted to go home. I asked him to escort me out of the store. Herman and Martin and I went back downstairs. I felt threatened by Sami. I told Herman that I needed 20 minutes to get home and not to let Sami follow me.

61. I walked home very upset and scared that morning. I didn’t know if Sami would come after me. Still to this day I worry about encountering Sami.

62. In the process that followed, I accepted from the start that I struck Sami. I regretted that this happened and I remain sorry about it, but I believe that I reacted in a physical and instinctive way to the threat I perceived. I did not have time to think through what was happening. I have thought about this incident a lot. It was a simple reflex that happened in a split second.

Events immediately after the incident with Sami

63. After the incident on 14 February I arrived home at around 6am. I was not surprised that Herman had asked me to return to work as the store usually ignored this kind of incident. Looking back over the years I worked for Sainsbury’s, many times colleagues argued with each other and swore at each other, sometimes even walking out and quitting their jobs. They would then return to work as if nothing had happened.

64. Another example was the situation with Sami and Andrew Barber. Andrew was working one Sunday when Jane Palmer was running the night shift and Jane had asked Andrew to perform a task. Andrew refused because he was busy and Jane became upset. When Sami realised that Andrew had upset Jane he became very angry. I told him to calm down but he went to confront Andrew on the same Fresh foods aisle where he attacked me. I saw him attack Andrew from behind. Andrew had to fight Sami off but Sami would not stop so I and other colleagues at the time had to restrain Sami. The incident was not taken further.

65. I was therefore not surprised that Herman was phoning me to ask me to come back but the thought, however, at the time of working alongside Sami, and the thought of everybody finding out that I had “grassed” for theft gave me a sick feeling inside.

66. I decided to contact my union on Monday morning and not to return back to work until I had spoken to them. However I was due back at work that night. On Sunday afternoon Herman phoned me to ask me if I would return to work. I told him “no”. Herman reassured me that if I returned back to work then he would keep Sami away from me. Herman did not tell me that Sami was or would be suspended. I told Herman that I would not return and that I would be contacting my union in the morning. Herman told me that it was my choice and that he would then write a statement explaining what had happened.

67. I believe that if I had returned to work that night Herman would not had written his statement (which he did at some point: this is at pages 83 – 84) and would have buried the issue, just as the issue was buried when Sami had attacked Andrew Barber.

68. I phoned Brenda Anderson on Sunday 14 February and introduced myself. I had been given Brenda’s number by Layla and I knew that Brenda worked Sundays. She seemed to know who I was. I asked if she had enough evidence on Sami and Jane, and I believed that Sami knew I was the grass. She said that she was no longer working in the district and that she had interviewed Sami and Jane weeks ago and could not arrest them due to lack of evidence.

69. I think that it would not have taken Sami much time to put two and two together after his interview with Brenda Anderson. I had worked with him for some time and it was only two weeks after he was interviewed about the thefts that he became aggressive towards me. I do not believe that this was just a coincidence. I was the only one who was following him and asking John Collins of his whereabouts. I knew of his thefts and I believe he knew that I was not happy with the situation.

My grievance and the investigation

70. On Tuesday 16 February 2010 I submitted a grievance about the incident (pages 86 - 87). I was advised by my union that this was the best thing for me to do to stop Sami getting away with this kind of behaviour. At this stage, I did not consider myself to have been suspended. I was not due back at work until the following Friday. My grievance set out the main details of the incident on 14 February 2010, although I did not go into the background around the thefts. I was confident that Sami’s behaviour as the aggressor and instigator of the incident would be shown on CCTV so I asked for this to be looked at.

71. However, after submitting my grievance, I received a letter dated 16 February (see page 85), calling me to an investigatory meeting. The letter made no reference to any suspension.

72. I note from these proceedings that Sami was interviewed at an investigatory meeting on 18 February 2010 by Justin Dillon (see pages 90 – 96). In this meeting, amongst other things, he seems to have admitted calling me a “Turkish c**t” but claimed he didn’t say this “to be racist.”.

73. I attended the first investigation meeting on Friday 19 February 2010 with Jason Amarasekera, the Customer Services Manager in the Penge store, and Lauren Burnett from HR. There are some typed notes of the meeting, which lasted around an hour and a half with a break in the middle (see Sainsbury’s typed notes at pages 102 - 106).

74. The notes that were taken in this meeting are not an accurate reflection of the meeting. Lauren at times seemed to write down only fragments of what I had said. I do not accept the first few lines: “JA, Hi Freddie, we are here to conduct a fact finding investigation. Do you know why you’re here? FM, Yes I hit a member of staff.” I did not say this. I also did not say that I did not feel the need to get the union involved at the moment. I had, on the contrary, made it clear at the end of my grievance that I was involving the union (see page 87). I do agree that the following points were covered in the meeting.

75. I explained that there had been a disagreement about TalkBack and that I had said that I would take it up with Justin Dillon. Sami had said: 'what's your problem, c**t' and had continued to be verbally abusive. I pointed out that other employees, Nana, Joseph, Kadeisha and Edita were there and so was Herman. I said that Sami’s leg broke loose and my reaction was to punch. I told them that Sami called me a” Turkish c**t” and was trying to provoke me. I also said that, once I threw the punch, I knew I had done something wrong and I didn't have to do that. but the rest of what I said following this was not written down and recorded. I then said that I had done something wrong and but I also explained that in the circumstances, I had no choice. I explained that it was the early hours of the morning, I was tired and I was cold after working on refrigeration all night and that I had a cold. I explained that I could have kept my arms by my side and let Sami attack me but I explained that I didn’t because my reflex was to protect myself. I was explaining that everybody has a choice to do right or wrong, but when you are not prepared and taken of guard that choice is taken away from you. I tried explaining to them that I could had been a passive victim and done nothing, but I didn’t have time to register what was going on and even though I protected myself, I still felt like a victim anyway. Lauren wrote down only fragments of the conversation which I believe is clear in her writing.

76. I explained that I had got Brenda Anderson into the store and made allegations of theft against Jayne and Sami and said that John Collins was complicit in this.

77. Jason Amarasekera asked me if I accepted that I had hit Sami, but in response to provocation, that Sami had kicked me or went to kick me. I said that I shouldn't have thrown a punch, but I wasn't the police and couldn't be trained on how to deal with a situation like that. I said that I had walked away from the incident. I asked Jason to look at the CCTV footage, which I had also referred to in my grievance. Lauren Burnett then said that there were images (which I did not see at the time, have never seen and which have not been produced in these proceedings) but I was behind a pillar. I also denied that I had called Sami a “knob head” before the incident.

78. Jason told me that Justin Dillon had seen a bruise on Sami and also said that Sami had claimed that this wasn't the first time that I had kicked someone. I denied this. Sami hadn’t accused me of kicking him, let alone anyone else.

79. The question of suspension was raised (page 105). When they mentioned this I was surprised and asked “Was I suspended?” They said I should have received a letter. I said I wouldn’t want anyone thinking I had gone AWOL since Sunday morning. I pointed out that I had been asked by Herman to come back to work. I believe that I may have suggested that my grievance had started this all off, which is not noted, and Lauren then stated: “To be honest we would have caught wind of the situation and it would have potentially lead to this situation anyway.”

80. I was told that the matter would go forward to a disciplinary hearing on 26 February 2010 (see letter at page 121). I was given a copy of the suspension letter at page 122, which I signed. The only reason I had signed this was because Lauren told me that I would not get paid for my shift on Saturday as I had walked out, and I would not get paid for my shift on Sunday as I did not come to work or phone the store to call in sick. I was told that they would not be able to pay me unless I signed the form. I explained to them that I couldn’t because I had not been suspended but then Lauren reassured me that it was only for Val, who works in the cash office, and as long as I signed it then Val would pay me for the time that I was off. Lauren also reassured me that this was not a big deal and told me to sign it and that way I would not get into trouble for being AWOL from the store. I told Lauren that I was not suspended, but I would accept that I was suspended from Friday 19 February 2010. Lauren explained that this wasn’t good enough and Val would not be able to pay me. Lauren pressured me into signing the form and kept reassuring me that the only person it would benefit was myself as it would enable me to get paid. I therefore signed the form. I only worked 3 days a week and could not afford to lose my wages.

81. On the morning of my attack, I told Herman that he should be suspending people, and not be asking them to go back to work, but that was the only mention of suspension that morning. I explained all of this in my investigation meeting. I later explained this in my appeal meeting (see page 206).

82. Laura, Jason and I discussed contacting Brenda Anderson. Lauren and Jason seemed disappointed in me. We discussed the criminal activity and the breaking of other colleagues’ confidentiality. Both Lauren and Jason asked me why I had not come to them. I explained to Lauren that she seemed to have become good friends with Sami and I noticed that she had received lifts home from him when she only lived 100 yards from the store. I said that I was disappointed in all the Penge store management and explained the reasons for not approaching them. She did not make notes of this part of the conversation.

The disciplinary hearing and my dismissal

83. I have become aware in these proceedings that Sami had a disciplinary hearing on 24 February 2010 with Paul Miller, the Store Manager, and was dismissed for using inappropriate language and violence (see pages 124 – 126). Sami admitted that he came to within 6 inches of my face.

84. I received no witness statements or other evidence in advance of my disciplinary hearing. I did not know what had happened in the investigation and disciplinary proceedings concerning Sami.

85. I exchanged several emails with Lauren Burnett in the lead up to the hearing. I questioned what Sami had said about the incident and was told he had not written a statement (see email 3 March 2010 at page 131). I now know that he had given accounts in two meetings, which I was not provided with.

86. I made several corrections to the original minutes of the investigation meeting which I was unhappy with (see pages 139, 150 to 152). These were not the only corrections I had. But I sent these corrections to Lauren as examples of errors. I was trying to work on my own case at this point. I suggested that we sit down and go through the investigation meeting minutes together, as there were other points, as noted in this statement, but this did not happen. The notes at page 102 – 106 are the corrected version but still do not accurately reflect everything discussed at that first meeting.

87. I was invited to the disciplinary hearing with Justin Dillon, Duty Manager, and Rosie German from HR on 4 March 2010 (see page 157).

88. I proceeded without representation because of difficulties trying to obtain a union representative.

89. Sainsbury’s typed notes of the meeting are at pages 170 – 173. Justin and Rose seemed to listen to what I had said but, as in the last meeting, Rose did not write everything down. For example, the notes in this meeting jump around, such as on page 172: “FM: Sami always has excuses, his flat mate looses key and he has to go home when he likes. Mark was sitting here one night and I asked him where’s Sami. Mark said he was on frozen and I said no he is not. I went outside and saw him drive off”. Justin’s response to this in the notes is “JD: We checked the cameras it was not a Playstation 3” I believe that this is an example of parts of the conversation not being recorded in the notes, as according to the notes to this point, I had not mentioned a Playstation 3 yet I clearly had done for Justin to have been talking about one.

90. In the meeting I disputed the minutes from the last meeting and said there was a lot wrong with them. I explained that it had been not a fight, but an attack by Sami. I referred to Sami’s tendency for racist and other offensive verbal abuse and the repeated the allegations of theft.

91. I outlined how Sami had kicked out at me and as he came towards me, I had hit out at him, striking him near his eye and nose. I said I did not understand how he could have had a bruise on his forehead. I pointed out that Sami had called me a “Turkish c**t” and had kicked me after the initial altercation had been broken up.

92. Justin said something like “So, for whatever reason you hit Sami”. He asked why I had not just walked away and gone upstairs after I had hit out at Sami. I explained that I had acted in self-defence. I said that I thought Sami knew that I had reported Sami’s stealing to Sainsbury's.

93. Justin asked me (page 172) why I hadn't walked away at the start, when I had challenged Sami over the TalkBack issue. I said that I had, but that Sami had followed me. Justin also implied that I should have kept in mind Sami’s “history” of assaulting Andrew Barber in my dealings with Sami. In other words, I should have accommodated Sami because of his history of violence.

94. Justin also asked me what I would have done differently. I said that if I hadn't punched Sami, Sami would have kicked me, so in the same situation with Sami coming for me, I would do it again. It was self-defence. I had already expressed regret about what had happened.

95. Justin asked me how I would feel if I was back and working with Sami. I said that I would have been all right with that. I stressed in conclusion that this hadn't been a fight. I had been provoked and had just defended myself.

96. Justin then adjourned the hearing for around for 10 minutes. He then read an extract from the Sainsbury’s Staff Handbook which said that assault or attack on a colleague was gross misconduct and so he dismissed me. I said that I did not have a fight - when I had walked away, Sami had come after me and kicked me. Justin said that I had already hit Sami.

97. Justin had also stated in the meeting that he had seen the cameras on the morning of my attack, although this is not in the notes. He said that he had seen me behind a pillar and that he could see Sami run towards me and kick me. He could not see the actual contact but said that it looked like Sami was the aggressor. I have seen none of this CCTV. Sainsbury’s have said to my solicitors that it has not been kept, despite my requests in the internal proceedings onwards. I believe that these tapes may have exonerated me.

98. My dismissal was confirmed in a letter dated 5 March (see page 179), the reason being “a fight between colleagues”.

My appeal

99. I appealed against my dismissal in an email to Paul Miller dated 4 March 2010 (see pages 179c – 179d). I said briefly that I had been attacked in his store and did my best to defend myself. I wanted to discuss with Paul Miller that I had been attacked and I said that I believed that Sami was under the influence of alcohol, which I did given how extreme his behaviour had been. I had stated from the start that I believed Sami was under the influence of drugs and I firmly believe that drugs or alcohol was affecting him on 14 February when he attacked me. I also wanted to discuss why my grievance had not been dealt with, seeing as this was put in before I was told that I had been suspended.

100. In the lead up to the appeal, Lauren emailed me about my grievance, which had not been dealt with because of the disciplinary issues (see page 180).

101. I also emailed Paul Miller on 10 March to ask that the CCTV footage be preserved (page 184). I continued to believe that the actual footage of what had happened, or at least some of what had happened, would show who the aggressor was.

102. On 12 March 2010 I confirmed my appeal date to Lauren by email (see page 188). I also said that I believed that my grievance of 16 February had started the whole investigation. Lauren disputed this in her reply on 13 March (see page 190). I replied to her on 13 March (see page 190) pointing out that the investigation only appeared to have started when I put in the grievance against Sami. I disputed that I had been suspended by Herman and pointed out his call to me to see if I was coming into work.

103. I have been made aware in these Tribunal proceedings that Sami also appealed against his dismissal. His appeal was heard by an external manager, Mark Becker, the Crystal Palace Store Manager. The typed notes of the meeting are at pages 196 – 201. It is clear that Sainsbury’s believed that Sami had racially abused me and that he was “face to face” and swearing at me (see page 199) and that formed the basis of Sami’s dismissal. Mr Becker found that Sami had “provoked” me (see page 200).

104. The appeal against my dismissal was heard on 19 March 2010 with Paul Miller, and Margaret Southwell, HR Manager at Crystal Palace.

105. The typed notes are at pages 202 – 209. The meeting lasted just over 2 hours, although this included a long adjournment for over 35 minutes.

106. In the meeting I said that there had been a racial element to the altercation with Sami. I also raised a point about the timing of Sami’s suspension. I said that I had created the situation when I had put in a grievance against Sami. I also said I believed that Sami had found out about the allegations of stealing. Paul Miller claimed that only he and Lauren Burnett had known about the allegations I had made to Brenda. I raised general allegations of wrongdoing by Sami which I said had not been picked up and said that Sami had been allowed to be a bully, so “I had to deal with him”. By this I meant that I had reported the thefts but Paul stated that I had dealt with Sami in the wrong way.

107. After an adjournment, I continued and explained that my reaction when faced with Sami’s aggression was an instant reaction for which I couldn't apologise, as I had to defend myself. I still regretted that this had happened, but, placed in the situation Sami had put me in, I couldn’t see what else I could have done.

108. After a 37 minute adjournment, Paul Miller delivered his conclusions on my appeal:

(a) He said he didn't believe it wasn't a fight, because he saw the bruise on Sami’s head;

(b) He claimed that the situation was not because of the allegations of theft because only he and Lauren Burnett knew about those;

109. At about this point, I explained that I had told two colleagues about the investigation (i.e. Abdi and Sharon, as I explained above), and that Abdi had seen Sami carrying something out of the store, although as I stated above the meeting notes are not accurate (see page 206). I did not name the colleagues and explained that I had not wanted them to jeopardise Brenda Anderson's investigation by raising what they had seen. Paul seemed to accept my explanation, although he suggested that I had broken my own confidentiality by discussing the situation.

110. Paul said that the fact that, when I struck Sami, I was reacting instantly to potentially being kicked didn't make it right. He said that he had a duty of care to other colleagues and that I might misread a future situation. He concluded that the company handbook stated that this was an assault on another colleague and that was gross misconduct. He upheld the decision to dismiss. He said he was concerned at my assertion that I would have done the same in the same situation.

111. I had asked Paul Miller at the outset if I could ask any questions during the meeting. He had replied that I could but he may not answer but would take notes and answer after I had made my appeal, which seemed very awkward.

112. I had asked Paul Miller many questions during my opening statement (see pages 202 – 203) and he replied “no comment” to each, which was not recorded in the meeting minutes. I note that the point at which he did interject and respond (see page 203) was when I had explained about the issues of trust I had in the store. He was quite defensive and tried to suggest that this was not relevant, but in my view it was important background information about the situation with Sami.

113. I received a letter in the post dated 20 March 2010 confirming my dismissal (see page 231). This letter explained to me that “This was the final stage of our disciplinary and appeals procedure and there is therefore no further process for appeal against this outcome”.

114. I didn’t fully understand this as I had still not had my grievance dealt with. Weeks went by and I had not heard anything from Sainsbury’s about my grievance. It wasn’t until after I had submitted a claim to the Employment Tribunal on 24 March 2010, that I received a bundle of letters through the post from Sainsbury‘s (see my email of 9 April 2010 responding to Sainsbury’s, page 235). I did not receive a response to my email dated 9 April.

115. The assault on me by Sami, and the subsequent disciplinary process, which felt very unjust to me, has made me depressed. I feel that I have lost a family, ”Sainsburys,” which I felt strongly enough about to return to after working for another employer and who I was trying to help by reporting theft. I have spent a year of my life trying to find work and I have had to borrow and scrape by the last year from my partner which makes me feel useless and humiliated. I have never had to borrow money of anybody before. I live with my mother who has not received any rent from me for the last year and even though my loved ones are very understanding and caring, I have a daily sense of guilt that I cannot support my own family. I have tried so hard looking for work and if Sainsburys had only answered G4S when they were vetting me I could have gained employment a lot sooner. I feel very angry a lot of the time and have put on around 3 stone from eating due to my depression.

What I have done after my dismissal to try and find new work.

116. Since my dismissal, I have dedicated my time to trying to make a new career for myself in the security field. I did not think I would find a job in the retail sector after being fired for gross misconduct.

117. I received Job Seekers' Allowance from 23 March 2010 until 23 September 2010 at £64.30 a week until 14 April 2010 and £65.45 a week thereafter.

118. I went on an SIA course and passed. I then worked as a steward with Wise Security for a few months and this gave me the funds to pay for my SIA License. I have applied for over one hundred Security jobs but there is a lot of competition.

119. I went for an interview with G4S in May 2010 and was offered a security job, but I was told that Sainsbury’s had refused to reply to them when I was being vetted. Sainsbury’s failure to reply lost me the job before I even got started.

120. I passed the SIA course on 2 June 2010. On 14 August 2010, I obtained temporary employment as an event security steward. I have now found part-time work working at ******* **** since about 7 November 2010 for 13 hours a week at £8 per hour. I earn on average £416 a month but have the opportunity to cover the other security guards’ holiday and sickness. I am working on the backdoor as a security guard and my job involves searching the staff and entertainers entering and exiting the building, and I am responsible for locking up the building at the end of the night.

121. I am now very happy working for my new employer and in time I hope to be offered a full-time position.

Bonus

122. My final pay from Sainsbury’s was as set out at page 187. I lost out on a bonus because I had worked nearly the whole year and the bonus was awarded in April. I was one of the people who helped achieve this bonus by doing my job to the standard that I did, and if the Tribunal agrees with me that I was dismissed unfairly, I would like this bonus rewarded back to me.

This is my first and only witness!

IN THE EMPLOYMENT TRIBUNAL CASE NO: 2313194/2010H

LONDON SOUTH

B E T W E E N

MR F F MEHMET Claimant V SAINSBURY’S SUPERSTORE LIMITED Respondent

WITNESS STATEMENT OF LAYLA FARHAT

I, Layla Farhat, of ****** ******* ********, will say as follows:

1. I am employed by Sainsbury's as a Fresh Foods Assistant and work in its Sydenham store.

2. I am the partner of Freddie Mehmet. We have been together since 2006.

3. In around October 2009, Freddie was working 3 nights a week at the Sainsbury's Supermarket in Penge. He had worked there for a number of years but at around this time I noticed he was becoming more and more distressed with other members of the night shift.

4. He would finish his shift and come home and spend time telling me about what had happened on a particular night. He referred on these occasions to having seen two member of the team, Sami and Jane, stealing. He told me that he had seen them stealing bottles of alcoholic spirits, such as Tia Maria and Jack Daniel's, which later progressed into higher value goods such as cameras and games consoles.

5. Freddie wanted to tell someone but at that time he said that the only person he could trust was me. He explained to me that he could not tell his Night Shift Manager, John Collins, as he was friendly with Sami and Jane and they would take their breaks together. Freddie believed that if he had had told John Collins, it would get back to Sami and Jane. Freddie said he believed that this could result in him being bullied and victimised. Freddie said that another member of staff had suffered in the past as a result of raising concerns with John Collins, resulting in that member of staff having to transfer to another branch.

6. Freddie told me that he felt that he could not speak to the Store Manager, Paul Miller, as he would have to involve John Collins and investigate the allegation that members of his night shift were stealing. Freddie thought that this would put him in the same situation as if he went direct to John Collins.

7. The third option for Freddie was to call a confidential theft help line, but he said that past history had shown him that the help line was not confidential and would also result in the Store Manager being contacted and informed about the allegation, resulting in the same situation. Freddie told me about a member of staff who had contacted this help line and the information had got back to the person in question and resulted in that colleague being victimised.

8. After several discussions, I suggested speaking to a lady called Brenda Anderson, who worked as an in-store detective for Sainsbury's based in Sydenham. I understood that she was quite high up in the business and that she had the power to investigate people without giving reason or notice to the store manager. Therefore I believed that Brenda would be the safest person to turn to with this information.

9. Freddie agreed. He was so worried about information being leaked and it getting back to Sami and Jane that he asked me to contact Brenda and not to mention his name. I saw Brenda shortly after that and in private I disclosed Freddie’s concerns without mentioning his name. I saw Brenda in the staff corridor and approached her. I said that I needed to talk with her and we went into the holding room to talk privately. I said that I knew someone who worked on the night shift at the Penge store and that person was concerned about members of the night shift team stealing. I told Brenda that no one could be trusted, including the night shift manager, store manager and the confidential help line. I explained that in the past, when in-store theft had been reported, confidentiality had been broken and the person who had made the allegation was then subjected to bullying. Brenda reassured me that she would keep this information to herself and that I could trust her. In this initial meeting with Brenda I did not disclose too much information as I wanted to see if she could spot the thieves and arrest them with a simple tip off by myself.

10. I explained to Brenda that the person who had witnessed the theft did not want to make himself known at this time. She assured me that the information I had given on his behalf was confidential.

11. I saw Brenda several times between approximately October and December 2009 and gave her as much information as I could from Freddie, including the identity of the thieves and who else Freddie thought was involved. Brenda told me that she had been watching from a distance. She said it was difficult because she did not want to be spotted. She said that she had looked though hours of CCTV footage with no conclusive evidence. Brenda told me that in one situation she had followed Sami's car to a location and watched Sami, Jane and another member of staff sitting in the car for an hour. She said that she could not see what they were doing but she said that it was not normal behaviour for three people who had finished work in the early hours of the morning to be sitting in a car for so long.

12. A few weeks before Christmas 2009, Brenda approached me in the Sydenham branch and told me that she had seen Sami loading a Playstation 3 games console box into the boot of his car. She also said that she wanted to get Sami and Jane before Christmas.

13. I did not see Brenda again until mid-January 2010. She told me that she had not been able to catch them yet, and that time was running out, as she would be changing regions and Penge Sainsbury's would no longer be within her jurisdiction. She told me that she had two choices, either to stop and search them, which would blow her cover if they had nothing on them, or to interview them to see if they would admit to the theft. I left the matter with Brenda and heard nothing further.

14. During my meetings with Brenda, I did my best not to mention Freddie’s name. I cannot be sure that I did not mention him. In any event, the night shift at Penge was a fairly small group of people. I believe that Brenda could have worked out that my contact was Freddie. He worked on the same night shift as Sami and Jane. He was never mentioned by me as a suspect. I picked Freddie up from work some mornings, so if Brenda was watching the store, she may have seen us together. Many people in the store where I worked knew that Freddie was my partner and that he worked on the night shift in Penge, for example Jo Findley, who is Paul Miller’s partner.

15. Freddie's behaviour started to change after Brenda became involved and he seemed to be happier to have someone else involved. He called me the morning he had been attacked at work and he sounded shocked and upset on the phone and when I saw him he was distressed and seemed on edge. Before the attack Freddie walked everywhere, to work, the shops etc., but since the attack he rarely leaves the house. I drive him to the station and wait with him in the car until his train arrives. He never comes shopping with me any more, and refuses to have meals out in our local area. When we do go out I feel that Freddie is looking over his shoulder and is constantly worried. I don't know what would happen if Freddie ever bumped into Sami in the street.

16. I think that once this case has been resolved, Freddie may be able to hold his head a bit higher. At the moment I think he feels like a failure for being fired due to gross misconduct. This was never Freddie's intention. I believe he only wanted the best for Sainsbury's, a company he was very loyal to for over 12 years.

Below are the three witness statements that Sainsburys the respondent brought to the tribunal. The first witness statement was from the loss prevention manager, the second witness statement is from the deputy manager and the third is from the store manager. The spelling is not very good in these three statements but I have left them as I did not want to alter them in anyway.

Case Number: 2313194/10

IN THE LONDON SOUTH EMPLOYMENT TRIBUNAL BETWEEN: Mr F Mehmet Claimant AND Sainsburys Supermarkets Ltd Respondent

WITNESS STATEMENT OF BRENDA ANDERSON

I, Brenda Anderson, of ******* ******* ******* at which address I am employed, WILL SAY as follows:

1. I am employed as a loss prevention manager for region 24. I have been involved in loss prevention for over 21 years, always at Sainsburys. I am responsible for reducing waste and shrink of stock on the region and investigations into thefts, training of managers and put in place prevention measures in the store.

2. During 2009 and early 2010 the region was known as region 24 and included the Penge store. There was a re-organisation in 2010 and Penge was put into a different region which was renamed region 21 and the remainder of the region was renamed region 24. I remained in region 24.

3. I did not know Freddy nor to my knowledge have I ever met him.

4. Sometime in October 2009 I was in the Sydenham store when a colleague called Layla approached me. I knew her by sight but not by name and had not spoken to her before.

5. She asked to speak to me. We went into a room to talk. She said that her friend worked in the Penge store (Layla also worked at Penge at one time). She told me that two people, Sami Shwani and a female Jayne Palmer where stealing from the store. She told me this information came from her friend Freddy who worked on the nightshift at Penge

6. She asked me not to tell the management. She told me that they had already told management and nothing being had been done. She gave me quite allot of detail. She told me that Sami would check the whole car park and the street and if he saw a suspicious car they would not take anything. She said he would be on his phone to the girl in the store at the time. She told me that this usually happened on Sunday night when they both worked from 21:00 to 01:00am.

7. A this point nobody knew about this allegation but me and Layla. I did not know who the Freddy was who was. I came into the Penge store and reviewed CCTV footage for Sunday nights. I did not see Sami come and walk round the car as she had alleged. Occasionally he would leave the store with a bag but on the REPOS system this would match up with records from Sami's staff discount card of him buying things so the bag could have contained shopping.

8. I did not keep Layla updated on my investigation. Every time she met me, which only happened if she approached me in the Sydenham store and she said "how come you are taking so long" and was frustrated. I said it doesn't work like that. We had to get evidence before we could discipline anyone.

9. The regional operations manager in charge of the region, and my boss is Pete Mcdonough. I knew I would have to tell him at some point. I have a colleague called Donovan Parker who used to be regional loss prevention manager who has since left Sainsburys and now works for Nike. I confided in him. This was because I felt I needed to do a night observation and you cannot do these alone and preferably, in my case, with a male companion. This was just before Christmas 2009.

10. Donovan said that we need to tell Pete Mcdonough, the Regional Operations Manager so I did but told him we needed to be discrete. In late December I went out for an observation of the Penge store with a guy called Tolkic who was from loss prevention in another store and from midnight we observed the store from through a fence. There was lots of snow it was very cold. It was very difficult to do the observations and neighbours saw us and were suspicious of what we were doing. We saw nothing.

11. I then went on holiday. When I came back I looked through CCTV. Sami arrived with no bags and left with a box and a bag. On the Epos system he did not buy anything on that day. The box appeared electrical item but we were not able to enhance the footage enough to identify it. I thought it was either a Play station or an X box but we couldn't match the writing from either box with the CCTV footage.

12. Pete Mcdonough had told the store manager Paul Miller and his deputy Justin Dillon about my investigation. In January 2010 I spoke to them and told them we were not getting anywhere. I said that we could try a random staff search or go for an interview and see if they admit anything (which happens occasionally).

13. Paul Miller decided we should interview them both so we did on 28th January 2010. Justin Dillon was on hand in case we needed to suspend them. The notes of the interview with Jayne Palmer are at pages 72-75 and with Sami Shwani at pages 80-82.

14. Jayne trains staff on fire training and think 25 (serving of alcohol). Sami claimed the box was simply an empty box which contained her training documents and he was putting it in the car for her.

15. I showed them CCTV and said as bluff that we could enhance the image (in fact we tried and couldn't). They stuck to their story and we were not able to proceed against either of them, their being no evidence so they went back to work.

16. Early in the morning sometime in February 2010 my phone went and a voice said "this is Freddy" and I said "Freddy who?" He said "Layla's friend from Penge". He said "I 've been suspended". I asked what for and he said "I was fighting with Sami"

17. He said that they had fought each other. He said that the fight had been caught on CCTV but the store were telling him that it had not but he knew that it had. I said that if the store had got CCTV then they cannot hide the fact, the union will demand to see it.

18. He asked can if he could mention my name about thee CCTV. I said by all means. He also said that he didn't want to mess up my investigation. I said not to worry about that and that he safety came first. He said ok and the conversation ended. I never heard from him again. By this time the re-organisation had taken place and I was no longer working on the same region as Penge.

19. This was the only time that I spoke to Freddy direct that I am aware of. I have never met him that I know of and would not recognise him. At no point did I reveal to Sami Shwani where our original information came from.

20. I did hear that Freddy was being disciplined as was Sami and they were both dismissed. I am not sure how I became aware of this. Since Freddy brought his claim I have seen the note of his investigation and disciplinary and I am aware that he mentions me.

21. At P.103 in his investigation meeting Freddy mentions that Sami took some drink. Layla did tell me that they were drinking. I looked into this and the drink had in fact been paid for. There is nothing in Sainsburys procedures to stop staff drinking during an unpaid break provided they are not intoxicated.

22. I have seen the email that Freddy sent on page 150. This is not an accurate description of the conversation we had. Although I cannot remember what we said word for word the conversation took place as I set out in paragraphs 17 to 19 above. We only spoke about the fight and did not discuss the thefts.

23. I have also seen that in his appeal at page 206 Freddy claims he was in communication with me about Sami. This is not the case. I never had any such communication with him. The only direct contact I had with him was the telephone conversation in February 2010.

24. I was not involved in either Freddy's or Sami's dismissal or appeal.

This my statement is true to the best of my belief and knowledge.

Case No: 2313194/10

IN THE LONDON SOUTH EMPLOYMENT TRIBUNAL

BETWEEN:

Mr F Mehmet Claimant

and

Sainsburys Supermarkets Ltd Respondent

WITNESS STATEMENT OF JUSTIN DILLON

I, Justin Dillon, of **** ***** **** ***** at which address I am employed, WILL SAY, as follows:

1. I am the Deputy Store Manager at the Penge store, a position I have held for over two and a half years. I have been a Deputy Store manager for 6 years and employed by Sainsburys for over 22 years.

2. Sainsburys is a well known national supermarket chain running supermarkets throughout the UK. Sainsburys has two types of supermarkets which have different management structures, Local Supermarkets (Known as the convenience estate) and superstores (Known as the main estate). The Penge store is a superstore in the main estate. The main estate is split into 4 geographic regions. Penge is in zone 2 and region 21 (although until January 2010 the store was in region 24). Approximately 160 people work at Penge.

3. When I became a Deputy Manager as part of my training I was trained in conducting disciplinary hearings and appeal hearings in accordance with Sainsburys policy (p.41- 65). I have also had workshops on conducting disciplinary hearings and also security interviewing techniques. I do about 20 disciplinary hearings a year. I have done perhaps 2 appeals.

4. I was aware that Brenda Anderson was carrying out investigations but I can no longer recall precisely when I became aware of this but I believe it was some time in January 2010. As far as I knew the only people in the store who knew about this were myself, Paul Miller and the HR manager Lauren Bernett. I think that Paul Miller, the store manager for Penge told me. I was present on the evening of 28^th January 2010 when she was conducting the interviews in case they needed someone to suspend either colleague.

5. I think I was also aware that the information that had led to the investigation had come from Freddie Mehmet. Again I think this information came from Paul Miller who told me the information had come from Freddie’s partner at Sydenham.

6. An incident occurred on the night of Sunday 14^th February 2010. I was not at work at the time and the matter was observed and dealt with by Herman Ossonzo. He produced a report detailing what had happened (p.83-84). Sami Shwani had been insulting Freddie and Freddie had then punched him and a fight had broken out.

7. Herman was the night shift team leader and was still in training at the team. He suspended Freddie and sent him home and kept Sami at the store at the same time. Sami was still in work when I cam in on Monday 15^th February 2010 and I suspended him then.

8. Freddie was then invited to a investigation meeting by Jason Amareraskera our Customer Service Manager in a letter dated 16^th February 2010 (p.85). On the same day Freddie also sent in an email (p.86-87). In that email he alleged that the fight had broken out due to an argument about talkback. Talkback is a process, conducted annually, where the business gets feedback from our colleagues about how they feel about their work, what they are happy about and not happy about and so on. Each colleague fills out a set form and from these the statistical information is collated. It allows us as managers and the business in general to see where any problem areas or concerns that need addressing.

9. In the email Freddie also alleged that Sami had used an explicit racist insult to him and also that Sami had started the fight.

10. Sami Shwani was also disciplined and I conducted an investigation meeting with him on 18^th February 2010 (p.90-96). I believe that I conduct this simply because I was at work when the investigation took place and experienced manager was need to conducted these. I viewed the CCTV prior to this but it was not very helpful. There were two main altercations, one in the fresh food aisle that doesn’t have a camera. You can then see them moving from the aisle to the checkout and there is another altercation. The only camera you could see this from is at the other end of the store and all you can see is a scuffle involving a number of people at the other end of the store. You could not see who was who or what was going on. For this reason I did not use the CCTV in the investigation with Sami and Freddie’s later disciplinary hearing. A copy was not retained.

11. At the investigation Sami said that Freddie him hi first (p.91) and then he hit him back (p.92). He denied threatening to kill Freddie (p.93) but admitted to using a racial expletive towards Freddie (p.94). I decided that this should proceed to a disciplinary so referred the matter on.

12. On the 19^th February 2010 Jason Amarasekera our Customer Service Manager and the next most senior manager below me conducted some investigations. He spoke to Joseph Olagebeju (p.99-100), Martin Kelly (p.101) and also the investigation meeting with Freddie (p.102-106). In that meeting Freddie admitted to hitting Sami (p.103) and he admitted to the fact that he should not have done it (p.104). Jason passed the matter on to a disciplinary. At the meeting Freddie was given a letter confirming his suspension and notifying him of a disciplinary hearing (p.122) and a more detailed letter inviting him to the disciplinary hearing (p.121).

13. Prior to Freddie’s disciplinary taking place, Paul Miller the store manager conducting Sami Shwani’s disciplinary on 24^th February 2010 (p.124-126). The outcome to this was that Sami Shwani was dismissed for gross misconduct (p.158).

14. Freddie had difficulty getting a union rep so his disciplinary did not take place until 4^th March 2010. Prior that he sent in a number of emails. I recall reading some of them (such as p.139) but did not have copies at the disciplinary hearing. At the disciplinary hearing I had copies of all the documents mentioned above apart from Sami’s disciplinary notes which I had read but did not have with me.

15. The hearing took place at 10:00am on 4^th March 2010. The notes were taken by Rosie German and appear at pages 170-173. Freddie did not have a representative but was happy to proceed without one.

16. At the meeting he said that he did get on with Sami (p.170). He said that Sami had sworn at him and that he thought he had kicked out so that Freddie hit him in the face (p.171). When I asked him what he would do differently he said he would still hit Sami (p.172).

17. All of our colleagues are given a handbook when they join Sainsburys. Amongst other things this sets out what is considered gross misconduct which includes assault and attempted assault (p.38). I adjourned the hearing to consider the matter and made a note of the elements for and against finding against Freddie (p.169). Although it seemed to me that Freddie had been provoked by the language that Sami had used he had handled it very poorly. What he should have done is walk away and report Sami and we would have taken action against him, probably resulting in Sami’s dismissal. Instead he chose to hit him.

18. I reconvened the meeting. I referred Freddie to the handbook the section that assault was gross misconduct and that I was going to dismiss him. He said that he had walked away and Sami came after to him and kicked him. I pointed out that he had already hit Sami to which he agreed. (p.173). A letter was sent to Freddie on 5^th March 2010 confirming his dismissal (p.179). This letter gave him the right to appeal and he did appeal. I was not involved in the appeal.

19. In his claim I am aware that Freddie alleges that Sami attacked him because Freddie had reported him to Brenda. However in his own email (p.86-86) Freddie made clear the argument was because of talkback. I did not see how Brenda’s investigation was relevant to the incident. It seemed to me that whatever had started the fight Freddie had behaved inappropriately by hitting and then continuing to fight with Sami. There can in my opinion be no excuse for such behaviour.

This my statement is true to the best of my belief and knowledge.

Case No: 2313194/10

IN THE LONDON SOUTH EMPLOYMENT TRIBUNAL

BETWEEN:

Mr F Mehmet Claimant

and

Sainsburys Supermarkets Ltd Respondent

WITNESS STATEMENT OF PAUL MILLER

I, Paul Miller, of **** ***** **** ***** at which address I am employed, WIL SAY, as follows:

1. I am the Store Manager at the Penge store, a position I have been in for over two and a half years. I have been a store manager for over 5 years and with Sainsburys for just over 8 years.

2. I have received specific training in disciplinary and appeals procedure as part of my training as a manager. There was a policy change around October 2008. After this change deputy managers were given the authority to dismiss staff. Since then it tends to be Justin Dillon who does the disciplinary hearings which leaves me available to do any appeal. I do perhaps 5 or 6 appeals a year.

3. Sainsburys takes diversity and equality very seriously. It is something you are told about on induction and again I have received training on this at the Deputy manager and manager stage. Also I, along with the HR manager Lauren Bernett provide training on this to more junior manager in the store.

4. All staff are given a handbook when they join Sainsburys. This has some information on what Sainsburys considers to be issues of equality and diversity and what you can do if you have an issue you want to rise (p.39-40). There is a business policy which deals with this and makes clear that a breach of the policy is a disciplinary offence (p.23-24). The handbook also makes clear that discrimination, bullying or harassment are all potential gross misconduct offences (p.38).

5. I am familiar with these policies but I am supported by my HR manager Lauren Bernett who is the exspect on these issues and would advise me on any issues in relation to this.

6. As part of dealing with this issue Sainsburys has a confidential telephone line called Rightline. This is a confidential phone line which colleagues can call and can report any issues they may have from bullying to issues such as theft. The Rightline telephone number is displayed in a number of places throughout the back of the store, such as on the toilet doors, on notice boards and in the canteen.

7. Colleagues can also raise a grievance (Known in Sainsburys as a fair treatment) in writing. There is also a system called Justin King letters where colleagues can write to our CEO Justin King at head office if they felt with the matter is being dealt with in store and the matter is then taken up with the regional operations manager (my line manager) and the regional Hr partner (the line manager of my HR manager).

8. We also have a guide for colleagues called “It takes all sorts…” (p.25-36). If for example a colleague came forward to me, or HR or another member of management with an issue as well as speaking to them with HR we would give them a copy of this booklet.

9. I knew Freddy Mehmet to say hello to. He worked on the night shift and I am a day worker so have less exposure to the night shift. The night shift manager reports direct to me and I have on one occasioned worked on the night shift and I recall the claimant was working on that shift.

10. Sometime after Christmas 2009, I believe it may have been early January 2010 I was told that Brenda Anderson was conducting and investigation into two colleagues, Jayne Palmer and Sami Swhani. I was told this by my line manager the Regional Operations Manager Pete McDonough. I know Brenda well as we used to work together in the Sydenham store. I recall that she told me the information had come from Leila. I knew that Leila was in a relationship with Freddie (Leila used to work at Penge) and I believe in fact this was well known. It seemed obvious to me the information had originally come from Freddie Mehmet.

11. I am aware that Brenda conducted investigation interviews on 28^th January 2010. I was on holiday that week but I was kept in the look and was told they didn’t have enough information to proceed against either colleague.

12. On the night of 14^th of February 2010 there was a fight between Freddy Mehmet and Sami Shwani. This resulted in both of them being disciplined. I in fact conducted the disciplinary into Sami Shwani. This was because Justin Dillon had done the investigation. Mr Shwani’s disciplinary took place on 24^th February 2010 (p.124 – 126) and I took the decision to dismiss him.

13. Justin Dillon my deputy manager conducted the disciplinary hearing into Freddie Mehmet and dismissed him also. Freddie then appealed by way of an email.

14. Prior to Freddie’s appeal hearing Sami Shwani’s appeal was conducted by Mark Becker who is one of my peers and the manager of the crystal palace store (p.196-201). He decided to uphold the decision to dismiss. As I am the manager of the Penge store he informed me of the outcome.

15. Freddie’s appeal took place on 19^th March 2010. Present was myself and Margaret Southwell the Hr manager of the crystal palace store. Freddie had Mick Green as his representative. The notes were taken by Jaime Russell and appear at pages 202 – 209. I had with me at the appeal all the notes and documents from the disciplinary that Justin Dillon had conducted.

16. The meeting took quite a long time. At one point Freddie became quite heated and began to raise his voice and I adjourned the hearing so he could calm down (p.204). He was much calmer after the adjournment. I listened to Freddie’s appeal and then I summarised what I saw as his points of appeal, which he agreed to (p.205).

17.I then adjourned the appeal for over half an hour to come to my decision. The fact that Sami Shwani had admitted to using a racist expletive towards Freddie played on my mind. However he just simply had not dealt with it appropriately. The fact that he had been called this did not give him the right to punch someone in the head. I had seen the bruise on Sami’s head myself the next day. He should have left the situation and gone to see manager but instead he got into a fight.

18. As to the allegation that this was because of Freddie making allegations of theft, we had kept this confidential. Freddie revealed in the appeal that in fact he had told a colleague on the shift (p.206). This did not reduce the fact that Freddie had acted inappropriately by getting into a fight with a colleague. This is something that a colleague with Freddie’s experience should know.

19. I reviewed the disciplinary process and it had been conducted fairly. Both colleagues, Freddie and Sami had been disciplined and both been dismissed. This seemed to me to be a fair outcome. I therefore decided to uphold the decision to dismiss. I went through the points Freddie had raised at the appeal and told him why to my mind they did not show grounds to overturn the decision to dismiss. (p.205-209). I confirmed my decision by letter dated 20^th March 2010 (p.231).

20. After the appeal Freddie was invited to a grievance meeting by letter dated 21^st March 2010 (p.232) and again on 2^nd April (p.233). He declined to attend.

21. On his dismissal Freddie’s final pay was calculated including holiday pay. The forms showing these are at pages 236-238. Freddie had in fact taken 15 hours more than his holiday entitlement. This was deducted from his final pay (p.246). He is owned no more holiday pay.

22. Colleagues are entitled to an annual bonus of £500. This is dependant on performance and a clean disciplinary record. This is paid at the end of the financial year. Freddie did not get this as he was dismissed before the end of the financial year.

This my statement is true to the best of my belief and knowledge.

Below is the final statement by the employment tribunal and their judgment. I was very pleased with the outcome to say the least.

THE EMPLOYMENT TRIBUNAL

SITTING AT: LONDON SOUTH

BEFORE: EMPLOYMENT JUDGE CORRIGAN,

Mrs A Williams, Ms V Stansfield

BETWEEN:

Mr F F Mehmet Claimant

And

Sainsbury’s Supermarkets Ltd Respondant

ON: 21-23 February 2011

Appearances:

For the claimant: Mr Tom Brown, councel

For the Respondent: Mr W McKenzie, consultant

JUDGMENT

1. The claimant’s complaint that he has been subjected to a detriment in contravention of section 47B Employment Rights Act 1996 when he was attacked by his colleague Mr Shwali is well-founded.

2. The claimant’s complaint that he has been subjected to a detriment in contravention of section 47B Employment Rights Act 1996 when he was subjected to a disciplinary investigation is not well-founded and is dismissed.

3. The claimant’s complaint that he was unlawfully racially harassed within the meaning of section 3A (1) (b) Race Relations Act 1976 is well-founded.

4.The claimant’s complaint that he suffered unlawful discrimination by way of victimisation contrary to section 2 Race Relations Act 1976 is not well-founded and is dismissed.

REASONS FOR THE TRIBUNAL’S JUDGMENT

Judgment sent to the parties on 01 March 2011. Reasons requested by the Respondent’s Representative at the hearing.

Introduction

1. By a claim form presented to the Employment Tribunal on 24^th March 2010 the claimant brings complaints against the respondent of unfair dismissal, unfair dismissal on grounds that the claimant had made a protected disclosure, detriment on the ground that the claimant had made a protected disclosure, harassment on the grounds of national origin and discrimination by way of victimisation.

2. The claimant did not pursue the complaint of unlawful deduction of wages/breach of contract.

Issues

3. The Claimant’s complaints are

3.1 that he has been subjected to a detriment in contravention of section 47B Employment Rights Act 1996 (detrimentby reason of protected disclosure);

3.2 that the respondent is to be treated as having committed unlawful racial harassment contrary to section 3A(1) (b) Race Relations Act 1976;

3.3 that the respondent is to be treated as having committed unlawful discrimination by way of victimisation contrary to section 2 Race Relations Act 1976;

3.4 that he has been unfairly dismissed contrary to section 103A Employment Rights Act 1996 for reason that he made a protected disclosure and

3.5 that he has been unfairly dismissed by virtue of section 98 Employment Rights Act 1996.

4. The respondent accepted that the claimant had made qualifying disclosures in relation to colleagues stealing goods from the Respondents store and being allowed to get away with it, as per paragraph 1 of the list of issues.

5. The issues for the Tribunal to consider, agreed with the parties at the outset and during the hearing, were as follows:

Detriments under section 47B Employment Rights Act 1996

5.1 Did the claimant make a protected disclosure that Sami Shwani had attacked the claimant by his email to the Respondent’s HR on 16^th February 2010?

5.2 Did Sami Shwani attack the claimant on 14^th February 2010?

5.3 If Sami Shwani attacked the claimant, was the reason, or the principal reason, for Sami Shwani attacking the claimant that the claimant had made a protected disclosure as set out in paragraph 1 a) to c) of the agreed issues?

5.4 Was the principle reason for subjecting the claimant to a disciplinary investigation the fact that he had made a protected disclosure in his email of 16^th February 2010?

Racial Harassment

5.5 Did Sami Shwani attack the claimant and did he verbally abuse the claimant, including calling the claimant “Turkish C**t” and if so, did this amount to racial harassment within the meaning of section 3A (1) (b) Race Relations Act 1976, namely, on grounds of national origins, the engaging of Sami Shwani in unwanted conduct which had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

5.6 If the conduct did not have the purpose of creating such an environment, should his conduct reasonably be considered as having the effect mentioned above?

5.7 If so, has the Respondent taken such steps as were reasonably practicable pursuant to section 32(3) of the Race relations Act 1976 to prevent the employee from doing that act or doing in the course of employment, acts of that description?

Victimisation under Race Relations Act

5.8 Did the Claimant’s email dated 16^th February (pp86-87) amount to a protected act within the meaning of section 2(1)(d) Race Relations Act 1976?

5.9 Was an effective cause of the decision to dismiss the claimant the fact he had done a protected act as set out in paragraph 5.8?

5.10 Was an effective cause of the decision to subject the claimant to a disciplinary investigation the fact that he done a protected act as set out in paragraph 5.8?

Automatic Unfair Dismissal

5.11 Was the reason or principal reason for dismissing the claimant the fact that he had made one of the disclosures set out at paragraph 1 a) - d) of the list of issues?

Unfair Dismissal

5.12 What was the principal reason for dismissing the claimant? Was it, as the respondent asserts, the potentially fair reason of misconduct?

5.13 If the reason for dismissal was a potentially fair reason, in treating it as a sufficient reason to dismiss the claimant, did the Respondent act within the range of responses open to a reasonable employer? In particular, did the respondent have a genuine belief that the claimant had committed an act of misconduct; was that belief held on reasonable grounds; did it follow a reasonable investigation; was the procedure adopted a procedure open to a reasonable employer?

5.14 If the Claimant’s dismissal was procedurally unfair, has the Respondent established that the Claimant would, or might, have been dismissed fairly in any event?

5.15 If the Claimant’s dismissal was unfair, did the claimant contribute to his dismissal?

The Hearing

6. The Claimant gave evidence on his own behalf. The tribunal also heard evidence from Ms Layla Farhat, Fresh Foods Assistant, on behalf of the Claimant. On behalf of the Respondent, the Tribunal heard evidence from Ms Brenda Anderson, Loss Prevention Manager, Mr Justin Dillon, Deputy Store Manager and Mr Paul Miller, Store Manager.

7. There was an agreed bundle of documents and the parties made oral submissions. The Claimant’s representative also provided written submissions.

8. Based on the documents and oral evidence before it the Tribunal made the following findings of fact.

The Facts

9. The Claimant is British of Scottish-Turkish national origin. He has worked for the Respondent since 1995 with a break from 2003-2005.Most recently his continuous service dates back to 2005. At the relevant time he worked as a Night Shift Assistant at the Respondent’s Penge store. In the break in his service the Claimant worked for a security company which also provides a service to Sainsbury’s.

10. The Respondent has a handbook for staff which sets out a list of conduct which would normally be regarded as gross misconduct. This list includes “assault, or attempted assault, on other colleagues or customers”. Staff are given the handbook and told it is their responsibility to read it and no other reinforcement of the rules is given. The Respondent has a confidential line for staff to call with any concerns and it is also possible to write feedback direct to the Chief Executive.

11. In 2009 the Claimant had concerns that two colleagues on his shift, Sami Shwali and Jane Palmer, were regularly stealing goods from the company. He did not want to report this to immediate management as he believed that previously staff who had made similar reports had been exposed to the alleged culprits and treated badly as a result. He had concerns about who he could trust up to and including the store manager. Instead his partner Ms Layla Farhat reported his suspicions to Ms Brenda Anderson, Loss Prevention Manager for both the Sydenham store (Where Ms Farhat works) and the Penge store.

12. Ms Anderson investigated the colleagues between October 2009 and January 2010 and interviewed them both on 28^th January 2010 about her suspicions arising from some CCTV footage. She did not consider there was sufficient evidence to take the matter any further and her investigation ceased partly because of the regional changes which took Penge out of her responsibility. The Claimant also continued to watch the colleagues himself and believed that he was feeding information about the investigation through Layla to Ms Anderson. Ms Anderson knew she had been asked not to tell management of the Penge store, however she did. Ultimately Mr Miller, Mr Dillon and Ms Burnett (Human Resources) knew both about the investigation and that the source of the information was the Claimant.

13. Mr Miller expressed to us that he disagreed with the Claimant’s actions in going to Ms Anderson though he could understand it. The Respondent’s witnesses also said to us that they were concerned for the Claimant’s safety after he had made the protected disclosures.

14. The Claimant’s concerns were based on the fact that he saw the two members of staff hide drink bottles under a jacket and leave the store. Due to his security experience he began watching them and saw them do this on a regular basis. He would also see Mr Shwani cover the back exit and then see them leave with bags and boxes. Most notably the Claimant’s unchallenged account is that Mr Shwani himself had told the Claimant that he had stolen a hoover and a blueray player. He had also offered the Claimant items. Another colleague also told the Claimant that he had been offered a camera. The Claimant did tell this colleague that there was a security operation into what was going on.

15. We have been told that there were regular high stock losses in the store. There was some evidence on the CCTV to support the Claimant’s account. The CCTV showed a box that looked like an electrical item being removed by Mr Shwani and Mr Shwani is seen on CCTV looking down an alley before ladies came out of the store with bags. On the CCTV the staff were seen leaving the store with more bags than they were arriving with. It also appears from the records of the interviews with Mr Shwani and Ms Palmer that Ms Anderson was not satisfied that they had given adequate explanation for this in the interviews. Nevertheless these matters were dropped.

16. There is some background to the relationship between the Claimant and Mr Shwani. Mr Shwani in his disciplinary meeting following the incident on 14^th February 2010 reported that he felt the Claimant told tales and singled him out. The Claimant in his disciplinary process reported that he felt Mr Shwani had been allowed to behave badly, getting away with stealing, making racist comments and a previous assault. He described him as being allowed to become a “monster” and a “bully”.

17. The Claimant himself witnessed Mr Shwani call a colleague “Paki” and when challenged about it then shout it even louder. The Claimant was told by Mr Collins, the Departmant Manager, that he had spoken to Mr Shwani informally about this but there was no disciplinary action. Another colleague, Matheus, told the Claimant he had been called a “black c**t”. There is dispute about Mr Miller’s involvement in this. However on Mr Miller’s account Matheus had told him and he had told Matheus to raise a grievance. Matheus did not do so and later transferred stores so nothing was done. The Claimant said that he asked Mr Collins why nothing was done given the history and the fact that there had been a previous comment and he was told it was not sufficiently serious. Mr Miller confirmed that no action was taken and that there was no coaching or training.

18. There is no evidence about whether or not Mr Shwani knew that the Claimant was the source behind the investigatory interview into him for theft. Ms Burnett knew and had regular lifts with Mr Shwani. Two others on the management knew. The Claimant had told two colleagues. It was well known that the Claimant’s girlfriend worked at Sydenham and she was also friends with Mr Shwani. What Mr Shwani was told in his interview is that he was being watched on Sunday nights, which is one of the nights that the Claimant works (the Claimant works Friday to Sunday). We also find that Mr Shwani knew that the Claimant knew about his stealing as he had not hidden it from the Claimant. This was the Claimant’s evidence which was not challenged and which we accept. The Claimant himself was watching him over a three month period and believed that Mr Shwani was suspicious of this. The Claimant also reports that the relationship between himself and Mr Shwani had distanced, as had his relationship with Mr John Collins. He also on one occasion asked Mr Collins where Mr Shwani had gone during his shift and was told to mind his own business, and then Mr Shwani approached him about the fact that he had gone to Mr Collins. We do not know whether or not Mr Shwani did know that the Claimant was behind his investigation for theft. We accept there is evidence that he may have suspected. We find the Claimant’s concern that he did know was reasonable.

19. On 14^th February 2010 there was an altercation between Mr Shwani and the Claimant. It commenced over a discussion in relation to Talkback. Mr Shwani was the council representative and was responsible for ensuring the staff completed Talkback forms. He had told management that these had been done, whereas the Claimant’s had not. The Claimant discovered another member of staff had also not completed one and challenged Mr Shwani. We do not accept that the Claimant swore. Only Mr Shwani said that he did so and we do not consider that the Respondent’s witnesses have found during the disciplinary process that the Claimant had sworn.

20. Mr Shwani then began calling the Claimant “C**t” repetitively. The Claimant walked away but Mr Shwani pursued the Claimant and came within six inches of his face. Mr Shwani went to kick him. The Claimant reacted with what he has described as a punch or push. He accepts he made contact with Mr Shwani. He then walked away again and was pursued by Mr Shwani who called him a Turkish c**t and kicked him. He later threatened he was going to kill the Claimant and chased him to attack him a third time.

21. We accept the Claimant’s account that Mr Shwani had broken loose from staff who were trying to restrain him before the Claimant’s punch or push. We accept that the Claimant had little room to manoeuvre as he was in an aisle where there were hazardous items such as bottles and his perception was that other people were around him.

22. The Claimant went home because he was scared of what Mr Shwani might do next. There is a dispute about whether he was formally suspended. We find that there is a distinction in the mind of Mr Ossouzo, the shift supervisor, between discussing suspension and an official act of suspension. The Claimant went home saying “you will need to suspend me” which is recorded by the Claimant at page 103. Mr Shwani was not immediately suspended. Mr Ossouzo was only a trainee and he left it for the more senior manager when he arrived at work to officially suspend Mr Shwani. We consider that the official act of suspending the Claimant did not occur at that time, although everyone thought that he was to be suspended. We accept that there was a phone call between Mr Ossouzo asking if the Claimant was coming into work and saying that he would write a statement about the incident. What we do not accept is that the formal action later in suspending the Claimant only occurred when the Claimant wrote his grievance. Mr Shwani had already officially been suspended on the morning after the incident.

23. Mr Ossouzo, the shift supervisor, wrote a statement dated 14^th February 2010 but both sides consider it was probably written later. He said:

“I was working on fresh ….when I heard an argument between two colleagues on fats and sugar aisle (sic). So I went to investigate and I saw Sami and Freddie arguing and screaming at each other. I didn’t know the reason of their argument.

I decided to step in and separate them as they were screaming heavily. They should have stopped there and carry on working but they… to continue arguing.

Sami started to insult Freddie of “c**t”. Freddie asked him to stop and threatened him to fight if he didn’t stop right now.

Sami was carrying on and on insulting Freddie and he closer to Freddie’s face and said it again. Freddie then punched Sami as he was too close to Freddie’s face.

So I stepped in again to stop them and took Sami away. He resisted and kicked Freddie in the leg. Joseph and Nana stepped in and took Freddie towards the cashier area. …Sami came towards me and Freddie trying to continue fighting…”

24. Whilst this report is not wholly in support of the Claimant’s account he does suggest that it is Mr Shwani who was the greater aggressor and that the punch by the Claimant was in response to Mr Shwani being too close to the Claimant’s face and his repetitive verbal abuse. He also records that Mr Shwani carried on with his aggression after attempts to break the situation up. He mentioned a number of witnesses to the incident who could give statements if required.

25. The Claimant wrote a grievance on 16^th February 2010. In this he agreed that he had challenged Mr Shwani. He reported Mr Shwani had sworn at him several times. He said that Mr Shwani had lunged forward at him with his leg and he moved out of the way and reacted with a “punch in the face”. He then reported backing away himself but described Mr Shwani as calling him Turkish c**t over and over again. He said Mr Shwani kicked him and then attacked him a third time. He said Mr Shwani had threatened to kill him. He asked that the CCTV be looked at. Although a grievance, this is essentially the Claimant’s account of the event.

26. There was an investigatory meeting with Mr Shwani on 18^th February 2010. This was conducted by Mr Dillon. Mr Shwani was represented by Mr Collins who was the department manager.

27. Mr Shwani accepted that he had had a previous altercation with another member of staff where they had had to be physically separated. He also accused the Claimant of the same. On his account the Claimant had sworn at him first and was challenging him over Talkback and generally and had told him he was “rubbish”. He said he had told the Claimant twice he was crossing the line. He agreed he had called the Claimant “C**t. He said the Claimant had said “you come to my country and call me a c**t” and had then punched him. He said the Claimant had had a previous altercation. He said he had reacted and tried to hit him. He said he had called the police and then cancelled. When asked whether the whole thing was about Talkback he said the Claimant “is always looking for things to pick at…It’s just me… (the Claimant) is always nice to your face then says something different behind your back… he is very two faced… always telling tales” (p94). John Collins also gives a similar point of view that the Claimant reports people. Mr Shwani also referred to his own instability arising from his personal history and that there are situations in which he loses control in certain circumstances.

28. There was an investigatory meeting with the Claimant on 19^th February 2010. He said that he thought Mr Shwani was on drugs or drink and he said at this point that others were in front of him when he punched Mr Shwani. He accepted that he had done something wrong with the punch. He mentioned the history with his reporting of the theft and the retaliations on others who had reported incidents, including somebody having had their car windows pushed in. He mentioned that he thought that his reports about the thefts had got back to Mr Shwani and Ms Palmer and he also mentioned the fact that he was watching them. He described Mr Shwani as intimidating and that he gets away with abusive language. The person who conducted the investigatory meeting was Jason Amarasekera. Mr Amarasekera said that he thought there was a lot that was concerning and alarming in what the Claimant was saying. The Claimant accepted that he shouldn’t have done what he did but said that he had not been trained to deal with that kind of situation. He said that he had walked away. He said Mr Amarasekera should look at the CCTV footage. There are comments made about the footage in that meeting. The Claimant denied he swore. There was a reference to the fact that Justin Dillon saw a bruise on Mr Shwani, but the details of the bruise were not given. The Claimant denied that he had had anything more than an argument with anyone in the past.

29. The Claimant was told by Mr Amarasekera that the Respondent would act upon the information he had given him. During that meeting the Claimant was given two letters. There is no evidence of anything attached and the likelihood is that the key paper work mostly did not exist as yet. At that stage there was only Mr Ossouzo’s statement. It is clear that this was not given to the Claimant as he asked about it later in the meeting. The Claimant asked about the pillar which was said to be in the way on the CCTV and Mr Ossouzo’s statement. Neither were given to the Claimant. At the end of that meeting his protection when leaving the building was discussed. The Claimant made some challenges to the notes of his investigatory meeting but asked to go through them for other changes to be made. He continued to make further changes through emails.

30. Twenty minutes later Mr Joseph Olagebeju was interviewed about what he had seen. That statement supports the account that it was Mr Shwani who was the aggressor and that the Claimant was seeking to stop him (p99). On page 101 there is a statement given by Mr Martin Kelly. He gave a statement that he had taken down on his mobile phone and he was not asked any follow up questions. He makes no reference to the Claimant’s alleged swearing in the way he addressed Talkback. No questions are asked about that. We were told that no other witnesses were prepared to give statements. No interview was had with them. These statements were not given to the Claimant, nor was he told the content of them and nor did he know they existed. He was not told the content of Mr Shwani’s statement during Mr Shwani’s investigatory meeting.

31. There was a disciplinary meeting with Mr Shwani on 24^th February 2010. The outcome was that he was dismissed for gross misconduct. The conclusion was (at page 126) that there were “2 people both really badly at fault”. This was conducted by Mr Miller. During his disciplinary meeting Mr Shwani agreed that he had used inappropriate language and that he had been within six inches from the Claimant’s face. He also agreed he had kicked the Claimant.

32. There was a disciplinary meeting with the Claimant on 2^nd March 2010 with Justin Dillon. In that meeting he did say there was a lot wrong with the minutes of the investigatory meeting. He gave further details of the history with Mr Shwani including incidents of previous racial abuse and the theft that he had witnessed. For example he said he had been offered stolen goods. He explained why staff do not report these to the management. He gave three different examples of why the staff would not do so including the fact that John Collins had told people about an informant and that person had then had their car window smashed in.

33. There is another reference in the meeting by Mr Dillon that he did not believe that the incident could be just over Talkback and the Claimant explained the history. He also began with explaining that it was an attack and not a fight. He said that as Mr Shwani came towards him he had stepped forward and hit him near the eyes and the nose, therefore he explained that he did not understand the bruise on Mr Shwani’s forehead. The Claimant had said he had acted in self defence and he also said that Mr Shwani had kicked another member of staff before. He said that he had walked away when talking about Talkback but that he thought it was about the report of theft. He said that if he had not punched Mr Shwani, Mr Shwani would have kicked him. He said that he would do it again, that it was not a fight but that he had been provoked or acted to defend himself.

34. Mr Dillon took ten minutes to think about the outcome. He investigated nothing further. He just referred to the entry in the handbook in relation to assault and dismissed the Claimant. We find that he did not consider or weigh up the evidence as to what had or had not happened. He did not consider the difference between an attack and a response based on provocation or self defence. He did not consider the other very serious issues that the Claimant had raised. At page 169 he made a list for or against dismissing the Claimant. What he relied on in relation to the “for” column was the fact that the Claimant had punched Mr Shwani, the fact that in his view the Claimant had been swearing, and the fact that the Claimant had started the situation. Those final two matters had come from Mr Shwani’s evidence which had not been shown to the Claimant. He also added the words “gross misconduct”.

35. On the “against” list he put “provoked” or “self defence”. In evidence to us he told us that he had disregarded these because the Claimant had hit Mr Shwani.

36. There was CCTV footage seen by Mr Dillon, Mr Miller and Ms Burnett. This was never shown to the Claimant and has not been retained. There was no effort to retain it despite the Claimant’s initial request in his grievance. We find it pedantic to suggest that the Claimant only requested that it be looked at, rather than that he be allowed to see it.

37. On 4^th March 2010 the Claimant appealed. He appealed on the basis that he was not fighting but was defending himself and that he was defending himself against someone under the influence of alcohol.

38. On 10^th March 2010 (page 184) the Claimant made clear to the Respondent that he wanted to make sure the CCTV was retained. This email was to Mr Miller but it was forwarded on to Ms Burnett and it was also sent to an address that would have been seen by Mr Dillon. Although Mr Miller was away when it was sent he was back before the CCTV was due to expire and there is no explanation as to why this request was not actioned and the CCTV was wiped.

39. Mr Shwani also appealed. His appeal was dealt with on 16^th March 2010. Nothing was put to him about the Claimants explanations. The appeal was held by Mr Mark Becker, who is a manager from outside the store and independent of the previous investigations. He checked Mr Shwani had received all the documentation. Although Mr Shwani said he had received his own meeting notes he had not had Mr Joseph Olagebeju’s statement or Mr Ossouzo’s statement. He was then given an opportunity to read them.

40. We note that at the end of that appeal meeting Mr Becker went through a weighing up exercise between on the one hand the reasons to overturn the dismissal and on the other the reasons to dismiss. He does note that a reason not to dismiss would be provocation. The Claimant’s appeal then took place. This was held by Mr Miller in contrast to the independent Mr Becker. Like Mr Dillon, Mr Miller had already been involved in Mr Shwani’s disciplinary process and formed a view on the Claimant’s conduct. He was also a witness to the bruise. He did not check that the Claimant had received the relevant documents as Mr Becker had done with Mr Shwani. Therefore the Claimant did not get the opportunity to read through the same documents that was given to Mr Shwani. In this meeting the Claimant mentioned that at the moment that he hit Mr Shwani there were hazards, such as bottles, in the aisle and that there were people on all sides of him trying to calm Mr Shwani down but Mr Shwani went to kick him and that is why he had hit him.

41. Again he said that the reason for Mr Shwani’s response was his reporting the theft. It is in this meeting that he refers to Mr Shwani as having been created to be a monster and a bully and he makes clear that he is still saying that he acted in self defence.

42. Mr Miller came to a summary of the points that the Claimant was raising. He missed of the racist term used by Mr Shwani in his summary of the incidents.

43. Another point that had been raised by the Claimant and his union representative was the fact that the Claimant considered that the investigation had only gone as far as it had because he had raised a grievance. This was also not summarised in the summary by Mr Miller. Mr Miller dismissed the fact that the Claimant said it was not a fight but an attack because he did not believe the Claimant because he had seen the bruise.

44. We note that when discussing with the Claimant about who could have told Mr Shwani about the reported theft, they had had a discussion about the fact the Claimant had told a colleague, and Mr Miller said that this was not the right decision to make as by telling someone else the Claimant had caused the situation himself, by breaking his own confidentiality.

45. During this meeting Mr Ossouzo’s statement was in part read to the Claimant but the Claimant still was not shown the statement. The Claimant did say in this meeting that if it were to happen again he would just let Mr Shwani kick him. He also said that he had used as little self defence as possible. The full reasons for why the appeal is not upheld are somewhat confusing as the decision was delivered through a discussion with the Claimant. However, one of the reasons for the dismissal being upheld was on the basis that it was considered that the Claimant was saying that if it happened again he would do the same thing.

46. We were not told that there was any further investigation into the disclosures made by the Claimant throughout this process in relation to the theft. If anything, there is some criticism of the Claimant during the appeal of the fact that he went outside of the store with these reports. It was accepted that Mr Shwani had made a racist statement to the Claimant during the incident.

Applicable Law

Public Interest Disclosure

47. Section 47B Employment Rights Act 1996 provides that a worker has the right not to be subjected to a detriment by any act by his employer done on the ground that the worker has made a protected disclosure. Section 48 (2) provides that it is for the employer to show the ground on which any act was done.

48. We were referred by the Claimant’s Representative to the case of Fecitt & others v NHS Manchester UKEAT/0150/10/CEA. In that case the EAT held (at paragraph 66) that:

Once less favourable treatment amounting to a detriment has been shown to have occurred following a protected act the employer’s liability under section 48 (2) is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment…The employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act.

49. The same case deals with the issue of employer’s liability for the acts of employees in claims under section 47B. The parties agreed that the employer can be vicariously liable for actions of employees. In Fecitt the approach a tribunal should take is set out at paragraph 63. Namely that it:

must make appropriate findings (a) were there acts of employees that were meted out to the (claimant)…by reason of (his)…having done protected acts, (b) if so, what were those acts and who were the perpetrators, (c) did the unwanted treatment meted out to the (claimant) amount to a detriment, (d) if so, were the acts complained of so closely connected with the employment of those responsible so as to make the Respondent vicariously liable?

50. Section 103A provides that an employee is unfairly dismissed if the reason for dismissal is that the employee made a protected disclosure.

51. We were referred to the guidance in the case of Kuzel v Roche Products Ltd (2008) EWCA Civ 380 in relation to where the burden of proof should be placed in a case of unfair dismissal under section 103A. The guidance is at paragraphs 56 to 61 and provides as follows:

56…There is specific provision requiring the employer to show the reason or principal reason for the dismissal…that the reason was…a potentially fair one…and to show that it was not some other reason.

57…when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.

58 Having heard the evidence of both sides relating to the reason for dismissal it will then be for the tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.

59 The Tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the tribunal that the reason was what he asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was. But it is not correct to say…that the tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee…

60 As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side.

Unfair Dismissal

52. The law in relation to unfair dismissal is contained in section 98 of the Employment Rights Act 1996. Section 98 provides:

(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3)…

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

53. In applying section 98 (4) the Tribunal are not to substitute their own view for that of the employer. The question is whether the employer’s decision to dismiss fell within the range of reasonable responses open to the employer, or whether it was a decision that no reasonable employer could have made in the circumstances.

54. The Claimant’s representative referred the tribunal to a number of cases in relation to the reasonableness of a dismissal in relation to fighting.

55. We were referred to Bentley Engineering Co Ltd v Mistry (1979) ICR 47 in which the EAT held that natural justice requires not only that an employee should have the chance to state his own case but that he must know sufficiently the case against him to be able to put forward his own case properly. In that case that standard had not been met in circumstances where there had been a fight, but it was disputed which employee had provoked it, and the employee in question did not have various statements and know in sufficient detail what was being said about him on the issue that really mattered. Similarly Louies v Coventry Hood & Seating Co Ltd (1990) ICR 54 where it was held that an employer’s dismissal procedure was unfair if an employee was not permitted to know the contents of statements on which the employer would rely in taking the decision to dismiss. More recently, in Pudney v Network Rail Infrastructure Ltd UKEAT/0707/05/DA, the EAT confirmed that it was outside the range of reasonable responses for an employer to take a decision to dismiss based on material which has not been disclosed to the employee or where the employee has not at least been given the opportunity to comment.

56. We were referred to Meyer Dunmore International Ltd v Rogers (1978) IRLR 167 in which the EAT held:

Where there is a clear rule to the effect that employees involved in serious fighting will be summarily dismissed, provided that rule is plainly adopted, that it is plainly and clearly set out, that great publicity is given to it so that every employee knows beyond any doubt whatever that if he gets involved in a serious fight he will be dismissed, and provided that the fighting in question is serious and not unimportant and there is a properly and fairly conducted inquiry, Industrial Tribunals will ordinarily uphold the fairness of a dismissal for that reason.

In the present case, however, there was no such clear rule, There was a rule referring to “any assault or violent act” but though, as a matter of language, it can be said that any assault or violent act may cover some kinds of fighting, it is not the same as having a clear, direct, specific rule brought to the attention of all employees that if they fight they will be dismissed.

57. We were also referred to Taylor v Parsons Peebles Nei Bruce Peebles Ltd (1981) ILRL 119. In that case the EAT held:

In determining the reasonableness of an employer’s decision to dismiss, the proper test is not what the policy of the employer was but what the reaction of a reasonable employer would be in the circumstances. That the employer’s code of disciplinary conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed therefore is not to the point. That provision must always be considered in the light of how it would be applied by a reasonable employer having regard to equity and the substantial merits of the case. That includes taking account of the employee’s length of service and previous record.

Victimisation

58. Section 2 Race Relations Act 1976 provides that a person discriminates against another person…if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has done an act protected by that section.

59. The Claimant’s representative referred the tribunal to the approach in the cases of Chief Constable of the West Yorkshire Police v Khan (2001) ICR 1065 and Derbyshire v St Helens Metropolitan Borough Council (2007) ICR 841 when considering the reason for less favourable treatment, which is to ask the question why the alleged discriminator acted as he did…what was he seeking to achieve by treating the alleged victim as he did?

Racial Harassment

60. Section 3A Race Relations Act 1976 provides that

(1) A person subjects another to harassment …where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of_

(a) Violating that other person’s dignity, or

(b) Creating an intimidating, hostile, degrading, humiliating, or offensive environment for him.

61. The Respondent relied on section 32(3) Race Relations Act 1976 which provides that

In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicably to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

Conclusion

62. Turning now to the issues we had to consider.

Detriments under section 47B Employment Rights Act 1996

Did the Claimant make a protected disclosure that Sami Shwani had attacked the Claimant by his email to the Respondent’s HR on 16 February 2010?

63. The Respondent disputed that the Claimant had made a protected disclosure in relation to his email dated 16^th February 2010 on the basis that the Respondent already knew that an incident had already taken place. We find that the Respondent knew an incident of potential fighting had taken place, but what they did not know was that the Claimant alleged that this was in fact an attack on him, including a racist comment. We therefore find that the email was also a protected disclosure.

Did Sami Shwani attack the Claimant on 14^th February 2010?

64. We considered what had actually happened on 14^th February 2010 and whether in fact the incident did amount to an attack on the Claimant. We find that Mr Shwani was the aggressor. We are satisfied that the Claimant retaliated because he saw someone who had lost control, who had a history of attacking colleagues, who had broken loose from staff trying to restrain him and was coming at him aggressively whilst repeatedly verbally abusing him to within six inches of his face, and was about to kick him in an aisle where there were hazardous items and where the Claimant’s perception was that there were people in the way of the Claimant moving away. It was a defensive reflex reaction. Mr Shwani continued to be the aggressor and added racist insults. He made two more attempts to attack the Claimant which the Claimant did not retaliate as by that point he was no longer in the same danger.

If Sami Shwani attacked the Claimant, was the reason, or the principal reason, for Sami Shwani attacking the Claimant that the Claimant had made a protected disclosure as set out in paragraph 1 a) to c) of the agreed issues?

65. Firstly the Respondent accepts that the Claimant made protected disclosures in relation to the theft as set out in paragraphs 1 a) to c) of the agreed issues. We then had to consider whether Mr Shwani attacked the Claimant for the reason or principal reason that he had made the protected disclosures about the reports in relation to theft.

66. There is no express evidence either way to show whether or not Mr Shwani knew that the Claimant had made the reports about his alleged stealing. We have however considered the following points:

66.1 Mr Shwani said the reason for his behaviour was the issue raised about Talkback. Neither party considers that the reason why Mr Shwani reacted as he did to a conversation about Talkback was really about Talkback. This is clear from the questions asked by the Respondent’s witnesses during the disciplinary process.

66.2 Mr Shwani’s account was that the Claimant “tells tales”, that he had been picking on Mr Shwani in this regard and was “two faced”.

66.3 Throughout the Respondent’s processes the Claimant consistently offered the explanation that he considers the attack was because he had made the theft allegations.

66.4 There were a wide number of people that in fact knew that the Claimant had made those allegations.

66.5 The Respondents witnesses themselves said that they had a duty of care for the Claimant’s safety, his having made those allegations.

66.6 The attack was in fact within days of the Respondent’s interview with Mr Shwani in relation to the thefts.

66.7 There is also evidence that Mr Shwani knew that the Claimant knew about the fact that he had been stealing because he himself had offered the Claimant stolen goods. He also knew that he was being questioned in relation to thefts for nights that the Claimant also worked. There is also some evidence that Mr Shwani may have known that he was also being watched by the Claimant and that their relationship had distanced, as had the Claimant’s relationship with Mr Collins.

66.8 In the Claimant’s appeal meeting Mr Miller pointed out that the Claimant, by breaching his own confidentiality (in relation to the investigation into the thefts), caused the situation. We consider Mr Miller was accepting the plausibility that the attack related to the theft allegations.

67. In the absence of any other explanation for an aggressive attack we consider it is reasonable to draw the inference that the reason that Mr Shwani attacked the Claimant was the protected disclosures. We note that it is for the Respondent to prove the ground on which the act was done. The Respondent cannot show the reason why Mr Shwani attacked the Claimant as he did. They cannot show it was not the protected disclosures. The Respondent’s witnesses themselves question that the reason was what it appeared to be (namely Talkback). The reason they cannot show the reason for Mr Shwani’s behaviour, and that it was not the protected disclosures, is that having been told that the reason was likely to be the protected disclosures by the Claimant, this was never investigated by the Respondent’s witnesses. In particular it was never investigated whether or not Mr Shwani knew that the Claimant was behind the investigation into the alleged thefts.

68. We then had to consider whether the Respondent is vicariously liable for the actions of Mr Shwani. The Respondent’s Representative accepted that the relevant question here is (as set out at paragraph 49 above) whether the acts complained of were so closely connected with the employment of those responsible as to make the Respondent vicariously liable? We find that Mr Shwani did attack the Claimant during a shift when both were working, in reaction to a challenge by the Claimant about a work matter and we have found the reason for his attack to have been protected disclosures made by the Claimant about a work situation (thefts during a shift). We consider the attack was therefore sufficiently closely connected with the employment of Mr Shwani for the Respondent to be vicariously liable. We therefore find that the Claimant did suffer a detriment for reason that he made protected disclosures for which the Respondent is liable.

Was the principal reason for subjecting the Claimant to a disciplinary investigation the fact that he had made a protected disclosure?

69. In relation to whether the principel reason for subjecting the Claimant to a disciplinary investigation was the protected disclosure in his email of 16 February, we are satisfied that the Respondent has proved that the reason for the investigation into the Claimant’s part in the incident was the fact that the Respondent considered the incident to be an incident of fighting between two colleagues, Mr Shwani and the Claimant, both of whom were therefore investigated. So we do not find that aspect of the Claimant’s claim upheld.

Did Sami Shwani attack the Claimant and did he verbally abuse the Claimant, including calling the Claimant “Turkish c**t” and if so, did this amount to racial harassment within the meaning of section 3A (1) (b) Race Relations Act 1976, namely, on grounds of national origins, the engaging by Sami Shwani in unwanted conduct which had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? If the conduct did not have the purpose of creating such an environment, should his conduct reasonably be considered as having the effect mentioned above?

70. Turning to the claim of racial harassment, the Respondent did not strenuously resist the fact that the actions of Mr Shwani could amount to racial harassment. Whilst we find the reason for the attack itself was the fact that the Claimant had made the protected disclosures, we consider that Mr Shwani deliberately escalated the intimidation and hostility and offence to the Claimant by using words offensive to the Claimant because of his national origins.

71. In so deciding we take into account the racial origin of the aggressor who was a Kurdish Iraqi, due to the history of tension between these two groups and we find that as a result of that tension this would have increased the offensiveness to the Claimant and we consider this likely to have been designed to be so by Mr Shwani in the circumstances. We therefore consider that Mr Shwani did, on the ground of the Claimant’s national origins, engage in unwanted conduct, that had the purpose of creating an intimidating, hostile and offensive environment. In particular, we find that the moving from the use of the offensive term of “c**t” to the use of the offensive term of “Turkish c**t” was a deliberate escalation of a course of conduct that was designed to intimidate and create a hostile and offensive environment for the Claimant.

If so, has the Respondent taken such steps as were reasonably practicable pursuant to section 32 (3) of the Race Relations Act 1976 to prevent the employee from doing that act or doing in the course of employment, acts of that description.

72. The Respondent relies more strongly on the defence that they had taken such steps that are reasonably practicable pursuant to section 32(3) of the Race Relations Act 1976. However we find that they have not taken such steps that are reasonably practicable. Although staff are given a handbook which sets out the Respondent’s procedures and disciplinary rules, this had not been read by Mr Shwani and there was no further attempt to make him aware of its contents. Mr Shwani had not been disciplined for previous racist comments. At least one of those comments was not even investigated, despite the fact that Mr Miller accepts he was told about it. The Respondent accepted that Mr Shwani had been given no training or coaching. He also had not been disciplined for a previous attack on a member of staff, which also required his being physically separated from the other staff member. Mr Shwani was also not properly investigated about the allegations of theft once the full details began coming out in the Claimant’s disciplinary process. These all indicate that Mr Shwani was accustomed to getting away with serious conduct issues and a level of unacceptable behaviour, as the Claimant alleges.

73. It therefore follows that we find the Claimant did suffer racial harassment, contrary to section 3A(1) (b) of the Race Relations Act 1976.

Did the Claimant’s email dated 16^th February (pp86-87) amount to a protected act within the meaning of section 2(1) (d) Race Relations Act 1976? Was an effective cause of the decision to dismiss the Claimant the fact he had done a protected act as set out in paragraph 5.8? Was an effective cause of the decision to subject the Claimant to a disciplinary investigation that fact that he done a protected act as set out in paragraph 5.8?

74. Turning to the question of victimisation we do accept that the email on 16^th February 2010 would amount to a protected act within the meaning of section 2(1)(d) of the Race Relations Act 1976. However we do not consider that this was the cause of the decision to dismiss the Claimant nor of the decision to start a disciplinary investigation against him.

75. We did not consider that we needed to consider a comparator but we note that we do not consider the reason for the difference in treatment between the previous incident of a physical altercation between Mr Shwani and another staff member and the Claimant’s incident is the fact that the Claimant wrote a grievance. We consider it was because the suspension in the Claimant’s case was brought to the knowledge of Mr Dillon to action and the proceedings carried on from there. It therefore follows that we do not find the Claimant has been victimised contrary to the Race Relations Act.

Was the reason or principal reason for dismissing the Claimant the fact that he had made one of the disclosures set out at paragraph 1 a) –d) of the list of issues?

76. In relation to the claim for automatic unfair dismissal for reason of having made a protected disclosure, we note that firstly the burden is on the employer to show the reason for the dismissal. It is for the Claimant to then raise some evidence supporting his case that in fact the reason was that he had made a protected disclosure. We note there is the following evidence:

76.1 The allegations of theft were not taken very seriously. A number of allegations were made by the Claimant and they were not considered serious enough to investigate. Although Mr Shwani was dismissed for the incident on 14^th February 2010, other staff were allegedly involved.

76.2 We consider it is clear from the evidence we heard that Mr Miller in particular did not like the way the Claimant went about reporting the theft, and in fact challenged the Claimant about this in his appeal meeting. It was certainly not regarded as potential mitigation for the Claimant.

77. However we are not satisfied that there is evidence that goes the step further to show that the reason why the Claimant was dismissed was that he had made the protected disclosures, rather than that he had hit a member of staff.

78. We are satisfied on the balance of probability, weighing up the above, that the reason the Respondent dismissed the Claimant is because they had a closed mind about the Claimants involvement in hitting Mr Shwani and that to the Respondent’s witnesses a hit equals gross misconduct and that the automatic Response to that is dismissal. That is what was said by both witnesses involved in the Claimant’s dismissal.

79. We did also take account of the fact that the Claimant’s disciplinary process was kept completely within the store, unlike Mr Shwani’s process. However there was an independent HR person present at the Claimant’s appeal and we do not find that this alters our view that the Respondent has shown on the balance of probability that the reason the Claimant was dismissed was because he admitted that he had hit Mr Shwani. It follows that we do not find that the dismissal was automatically unfair.

What was the principal reason for dismissing the Claimant? Was it, as the Respondent asserts, the potentially fair reason of misconduct?

80. We do find that the principal reason for dismissing the Claimant was misconduct as the Claimant had admitted hitting Mr Shwani.

If the reason for dismissal was a potentially fair reason, in treating at a sufficient reason to dismiss the Claimant, did the Respondent act within the range of responses open to a reasonable employer? In particular, did the Respondent have a genuine belief that the Claimant had committed an act of misconduct; was that belief held on reasonable grounds; did it follow a reasonable investigation; was the procedure adopted a procedure open to a reasonable employer?

81. We do consider that the two witnesses for the Respondent had a genuine belief that the Claimant hitting Mr Shwani amounted to misconduct.

82. However we do not consider that this was grounded on a proper investigation. First we note the Claimant asked about the CCTV but was not shown it, nor was it kept. The decision makers had seen it and he hadn’t, and moreover misleading comments were made to describe what it contained.

83. Secondly, in relation to the available witnesses to the incident they were either not adequately interviewed or not interviewed at all. No statements were shown to the Claimant, by which we mean the responses of the witnesses in their interviews. The Claimant was also not shown Mr Shwani’s account of the incident. He was not given a clear account of the bruise that was relied on in documentary form, either through a witness statement of those who had seen it or through a photograph.

84. It is right that some of the points contained in the witness statements were put to him. It was clear that he challenged some of this evidence but they were still never shown to him. Moreover the challenges that the Claimant made were not followed up. Nor did the Respondent follow up the points that the Claimant made in relation to the fact that the background to this incident was the fact that he had made protected disclosures. There is no evidence that this was even weighed up and taken into account. There was no effort by the decision makers to make factual findings of what exactly happened. There was no fair weighing up of the Claimant’s account, for example the racist remark was excluded from the summary of the list of facts in the appeal, and in the note on page 169 demonstrating Mr Dillon’s thought processes on the matter there was an inclusion of matters in Mr Shwani’s statement that the Claimant had not seen and contests.

85. There was a complete failure to consider whether the Claimant had been provoked or acted in self defence and whether in these circumstances his actions fell short of assault and therefore were not covered by the disciplinary policy. The Respondent’s witnesses appeared to be applying a different policy, that being that any hit, for whatever reason, will amount to gross misconduct.

86. We consider both witnesses demonstrated closed minds to the issue, and both considered that the automatic response to this incident should be dismissal, without weighing the relevant factors. We consider the relevant factors in this case would include the fact the Claimant had made protected disclosures, the fact that the potential reason for the assault was those disclosures, the failure to discipline the aggressor in incidents in the past putting employees at a risk that he would repeat that kind of conduct, the Claimant’s length of service, his good record and the relative responsibility of each person in the incident and in particular, whether the Claimant was provoked and whether he did in fact act in self defence.

87. We also note that we consider the processes were not dealt with by independent managers, as both were involved in the processes for both members of staff, and both also acted as witnesses, for example commenting on Mr Shwani’s bruise that they had seen. There was also clearly some upset about what the Claimant had done in relation to making protected disclosures to someone outside of the store. We consider in those circumstances it would be much better to have involved an independent manager, such as Mr Becker at least at the appeal stage.

88. It follows from the above that we find that the Respondent’s investigation was not reasonable.

If the Claimant’s dismissal was procedurally unfair, does the Respondent prove that the Claimant would, or might, have been dismissed fairly in any event?

89. In these circumstances:

89.1 of the Claimant being attacked for making, as we have found, a series of protected disclosures that were not properly investigated;

89.2 where the Respondent’s witnesses themselves say they knew he might be at risk if the information about his protected disclosures was known by Mr Shwani;

89.3 where the aggressor had been aggressive before and not disciplined;

89.4 where the Claimant was, we consider, acting in self defence;

89.5 where there is also serious provocation and more evidence of the Claimant’s restraint, for example walking away after comments that are racial abuse, than of his acting in his defence.

89.6 where we do not consider the Claimant acted in a way that amounted to an assault or a fight, but was a defence to an assault on him and abuse towards him;

89.7 we consider if Mr Becker had heard the appeal, it is likely he would have broken down the facts and conducted a weighing up exercise, as he did for Mr Shwani, where he weighed up provocation on one side and the aggravating factors on the other side;

89.8 where Mr Becker in Mr Shwani’s appeal did acknowledge the racial comment and that he had agitated the Claimant and (at page 200) had provoked the Claimant;

We consider that it is likely on the balance of probabilities that he would have come to a different decision to that of Mr Miller and the Claimant would have remained in employment. We therefore do not consider the Respondent has established that the Claimant would have been dismissed fairly in any event if a fair procedure had been followed.

If the Claimant’s dismissal was unfair, did the Claimant contribute to his dismissal?

90. It also follows from all that we have found that we do not consider the Claimant contributed to his dismissal.

Remedy Hearing

91. The tribunal went on to consider remedy. The Claimant was re-engaged and the terms of that order were agreed between the parties. The Respondent’s representative confirmed that his request for reasons was not intended to cover that order but the award for injury to feelings and these reasons are limited to that.

92. We heard submissions from each party’s representative in relation to the following issue agreed with the parties:

92.1 What is the appropriate award for the injury to feelings suffered by the Claimant in relation to the claim of racial harassment and the claim of unlawful detriment contrary to section 47B Employment Rights Act 1996?

93. Both representatives agreed that one combined award would be appropriate to avoid double recovery as the two claims relate to different aspects of the same conduct.

94. The Claimant’s representative submitted that the proper award should be in the middle band of the Vento bands and proposed the figure of £11,000. The Respondent’s representative submitted that a proper award should be in the lower Vento band and in the region of £6,000.

95. We consider this was a one of assault but of a very serious nature involving repeated verbal abuse, three attempts to strike and one actual strike plus a threat aggravated by deliberate and repeated racial abuse which we have found amounted to racial harassment. The Claimant attempted to explain that he was a victim and not the aggressor in the consequential investigation but was completely ignored and as a consequence he was dismissed for the very incidents for which he suffered the detriment and racial harassment.

96. We agree that it would be appropriate to take the matter in the round. We consider that it cannot be just considered to be a single act in the lower band due to the numerous aspects to the event and in the event that it amounts to two separate heads of claim for which we could separately compensate.

97. The consequences were far reaching for the Claimant. We do accept as both Representatives do, that there should not be double recovery, but we do consider that an appropriate award is in the middle band of the Vento bands.

98. We do consider that £11,000 is high and risks double recovery but we consider a fair reflection of what the Claimant has suffered to be £9,000. We consider this to be a fair reflection of the fact that it was an assault with multiple aspects, aggravated by racial elements and which led to the Claimant’s dismissal partly due to the employer failing to see what the Claimant repeatedly sought to tell them.

Employment Judge Corrigan

Date: 10 May 2011

I was also awarded my salary to be backdated from the day of my dismissal and so I was awarded around a year’s salary on top of the £9,000 compensation. In total I was awarded around £19,000 after tax.

I wrote to the CEO of the company Justin King and told him that i was publishing this article online and I asked him if he would like to comment. This was his reply,

Dear Mr Mehmet,

Thank you for taking the time to write to me about your employment case. Unfortunately the article you have written was not attached to the email so I am unable to comment on its content.

We were disappointed with the Tribunal findings, especially in the light of our commitment to diversity. We always complete thorough investigations into disciplinary matters and the store have taken on board the comments made at the Tribunal to ensure that Penge remains a great place to work.

I am sorry that we are unable to re-employ you. I understand that a number of roles were offered but you did not feel any of them were suitable. Thank you for writing to me and for giving me the chance to look into this for you. I wish you well with your future career.

Kind regards

Justin