In the case of Sadeghi v TJX UK (ET/2200211/2017) the Employment Tribunal held that the Claimant, Mr Sadeghi, had been both wrongfully and unfairly dismissed and discriminated against on the grounds of his disability.
The facts in Sadeghi v TJX UK
Mr Sadeghi began working for TK Maxx stores in October 2003. Initially he was employed as a Christmas temporary worker but was promoted a number of times becoming General Manager in March 2016 for the High Street Kensington (HSK) store, one of the larger and busier stores in the capital. He reported directly to Mr Simon Abel, his District Manager. He was still in that position at the time of his dismissal for gross misconduct on 7 October 2016.
Mr Sadeghi suffered from depression and anxiety. He described in his ET1, his condition having a substantial and long term adverse effect on his ability to carry out normal day to day activities; that he suffered from severe mood management issues; had difficulty sleeping; lacked energy; tended to withdraw from any social situations; and that his condition also affected his ability to make decisions under pressure.
In May 2016, shortly after having moved to his position as General Manager of the HSK store, the Claimant was the subject of allegations that he behaved in an inappropriate manner towards fellow colleagues. The Claimant was issued with a written warning and at the time of the investigation into this incident, he informed the Respondent that he was depressed, had been having suicidal thoughts, that it affected his sleep and mood such that he was quick to lose his temper, that he was in receipt of therapy and was taking anti-depressants. (Incidentally, the Respondent argued at the Tribunal that while the Claimant had mentioned his depression at that time, he had not said that it had an on going effect or that he was on medication).
On 17 August 2016, a customer came into the HSK store in order to return a pair of trainers that he had bought several days previously. He claimed the trainers were faulty. An employee working on the till served him. She considered the trainers to be worn and therefore in a state that did not qualify for a refund. She showed the trainers to another colleague, who advised her to check with the Claimant, as he was the general manager of the store. The Claimant came to the serving area and examined the trainers. He concurred with the view that the trainers had been worn outside and therefore did not qualify for a refund. This was in line with the Respondent’s Damage Return Guide.
The Claimant knew from previous experience with the trainers that there was an insole that was removable. He did not agree with the customer’s contention that this constituted a manufacturing fault. As he both rejected that the trainers were faulty and as he ascertained that the trainers had been worn outside, he told the individual he would not give him a refund. The customer became aggressive and swore loudly. Initially, the Claimant remained calm and polite and told the customer that, if he was unhappy with the Claimant’s decision, he could contact Customer Services. He gave the customer the number of Customer Services.
CCTV recording showed that several times the customer presented the trainers and the Claimant gave them back to him. Then the customer brought out his mobile telephone to record events. The Claimant was not only concerned that the Respondent had put a prohibition on recording within stores, but he was also concerned that the customer might use the footage of the Claimant to organise some sort of attack, physical or otherwise on the Claimant outside the store. As a result, the Claimant reached forward and, with his left hand, grabbed hold of the customer’s wrist and, with his right hand, covered the face of the phone. The Claimant’s efforts to extract the phone resulted in the customer’s arms being pulled towards the Claimant and his body being dragged across the counter. A cleaner at the store then intervened by distracting the customer, grabbing his phone and throwing it to the Claimant. As a result, the customer attacked the cleaner. The police were subsequently called and arrested the customer who was known to them. Mr Sadeghi decided to film the customer as the police were questioning him.
A few days later, a complaint was made by the customer, stating that at the store, he had been refused his refund rights, his phone had been stolen and he had been attacked by the cleaner. Mr Sadeghi’s manager, Mr Abel, received the complaint, viewed some but not all of the CCTV footage on 19 August, but did not report to his line manager, Ms Sammon, until 30 August. In that report, while he indicated that Mr Sadeghi physically touched the customer, he also considered that the cleaner played a part in the incident and duly informed the contractor that sent the cleaner, not to send him back to the HSK store. Ms Sammon also watch the CCTV footage and decided along with her district managers that Mr Sadeghi’s misconduct was serious and that he had misbehaved by both dragging the customer across the desk and filming him later in a way that was antagonistic.
Mr Sadeghi was called to a disciplinary interview on 7 October 2016 with Mr Dogar who concluded that Mr Sadeghi had behaved inappropriately toward the customer, damaged the company’s reputation, showed no remorse and should be summarily dismissed. Mr Sadeghi did not mention his depression/anxiety during the meeting but he did invoke his right of appeal that was heard before Mr Cuff wherein he claimed that the Respondent had not considered mitigating factors including his depressive state and effect of his medication. The Claimant’s appeal was not upheld.
The decision of the Employment Tribunal in Sadeghi v TJX UK
The Employment Tribunal upheld Mr Sadeghi’s claims for unfair and wrongful dismissal as well as disability discrimination.
Unfair Dismissal – Section 98 of Employment Rights Act 1996
In relation to this claim, while the Tribunal found that the Claimant was dismissed for a potentially fair reason (that is, his misconduct) and this in spite of the fact the Respondent could have undertaken a more thorough and comprehensive investigation (such as tracking down the trainers to see if they did, as the Claimant stated, show evidence of outdoor use; or interviewing any of the employees working with Mr Sadeghi or taking into account the fact that Mr Sadeghi was applying store policy on refunds (even if there had been a relaxation of this rule that may/may not have been communicated to the Claimant), the Tribunal went onto to consider whether the Respondent’s response to dismiss was within the reasonable range of those available to them. The Tribunal concluded that it was not as the Respondent had jumped to the decision to apply the outcome of gross misconduct without considering mitigating factors. These might have included: the aggressiveness and provocation of the customer, the fact that the customer was trying to film the incident which the Claimant knew was contrary to store policy; the contributory behaviour of the cleaner; the Claimant’s long service; and finally a failure by the Respondent to give any consideration to or investigate the possible effects of the Claimant’s depression on his actions. The Tribunal concluded that while the Claimant should not have grabbed the customer physically, this behaviour alone was not enough to amount to gross misconduct.
Wrongful Dismissal – Common law claim
Mr Sadeghi won this claim because the Tribunal determined that his behaviour was not enough to amount to gross misconduct allowing the Respondent to consider it a repudiatory breach of the employment contract between them.
Disability discrimination – Sections 15, 20 and 21 of Equality Act 2010
The Tribunal found (and the Respondent conceded) that the Claimant was disabled as defined under section 6, Schedule 1 of the Equality Act 2010 and that the Respondent had produced no evidence to show that it did not know or could not reasonably have known that the Claimant had a disability.
The Tribunal found that he Respondent had subjected the Claimant to unfavourable treatment (section 15) in two ways: by implementing a disciplinary procedure following an incomplete investigation; and in dismissing him without obtaining medical opinion as to the effect that his depression and on-going medication could have had on his performance. The Tribunal did not consider that such unfavourable treatment constituted a proportionate means of achieving a legitimate aim: the reputational damage resulting from failing to deal effectively with an irate and abusive customer did not outweigh the reputational damage resulting from the dismissal of the Claimant who had mental health issues.
With regard to the alleged failure to make reasonable adjustments (sections 20 and 21), the Respondent did apply two provisions/criteria/practices (PCPs) to the Claimant – that of applying/instigating a disciplinary procedure and of applying its policy on dismissal. These PCPs did put the Claimant at a substantial disadvantage in that the Claimant needed his medical condition and the pharmaceutical treatment he was receiving to be taken into account and medical opinion sought, something that someone without his disability did not require. The Respondent could have taken steps to avoid the disadvantage, namely, obtaining medical opinion at the investigation stage which may have resulted in there being no instigation of a disciplinary procedure and/or no dismissal. However, the Respondent did not take such steps.
Our solicitors’ view on Sadeghi v TJX UK
Caroline Lewis, a specialist employment specialist at Redmans commented that “This case indicates that employers must, during the process leading up to any disciplinary, ensure that a proper impartial and thorough investigation is undertaken that considers all possible mitigating factors, so that a decision taken is not later viewed by the Tribunal as having been a predetermined outcome”.
The judgement of the Employment tribunal can be found here.