Supermarket chain Sainsbury’s have recently lost an Employment Tribunal where they found themselves defending a claim of unfair dismissal and disability discrimination after dismissing an employee with an acquired brain injury. We’re taking a closer look at the details of this case because it highlights some procedural failings by the retailer that employers would be advised to take note of.

Mr Kelly worked as a trainee manager for Sainsbury’s since 2000. In 2004, he was involved in a serious road traffic accident which resulted in a brain injury and he was placed in an induced coma for a month, followed by several months in hospital. The injury affected his memory and meant he was unable to continue his management trainee scheme although he remained an employee of Sainbury’s.

Mr Kelly’s behaviour towards some female members of staff was called into question in 2010 after he referred to a colleague in derogatory terms. He received a written warning. As a result, he was referred to an occupational psychologist who found that Mr Kelly’s cognitive functioning and aspects of his working memory were limited. It was confirmed that this had contributed to his behaviour.

At least one other instance of inappropriate behaviour was subsequently recorded against Mr Kelly for which an informal warning was issued against him. In April 2020, Sainsbury’s received a formal complaint from an employee who accused Mr Kelly of calling her derogatory names and of groping her and rubbing her shoulders. The accusing employee also alleged that other colleagues had suffered similar behaviour.

An investigation was undertaken but no action was taken. This was appealed by the complainant however and a store manager from another branch re-investigated. The result of this second investigation was that Mr Kelly should face disciplinary action. During investigation, Mr Kelly could not recall any of the behaviour he was accused of.

Following a number of other accusations, including one through the company’s own whistleblowing hotline, Mr Kelly was invited to a disciplinary hearing in July 2020 and was dismissed. He appealed the dismissal citing his own health and wellbeing and the effects of his car accident in 2004, but his claim was rejected. During the proceedings, it transpired that Sainsbury’s had also failed to give Mr Kelly evidence, including witness statements before his disciplinary hearing to enable him to build a case for his defence.

The manager conducting the appeal hearing suggested that it would have been unreasonable to expect the manager who carried out the investigation to take into account the car accident as it had happened 16 years previously. He stated that Mr Kelly’s behaviour was not in line with Sainsbury’s harassment or fair treatment policies.

The Employment Tribunal found that Mr Kelly’s behaviour, which was undoubtedly inappropriate and did go against Sainsbury’s polices, came about as a result of his disability which he acquired in his accident. By subjecting him to disciplinary proceedings and dismissal, the Tribunal ruled that Sainsbury’s had treated him unfavourably.

It appears that Sainsbury’s made some glaring omissions in their own procedures during this case.

Making investigation evidence available to the subject, prior to a disciplinary hearing is an absolute basic rule. We often talk about the importance of following procedure and this is a good example of how every single step needs to be taken. Had it only come to light at the disciplinary hearing that the evidence had not been made available then the hearing should have been adjourned and rescheduled for at least 48 hours in the future.

Secondly, failing to take Mr Kelly’s disability into account is pretty much a slam-dunk for disability discrimination. Despite the fact that his accident had taken place some years ago, the consequences on Mr Kelly had not gone away. The investigating managers should have taken the occupational psychologists report into account and, as it was 16 years old, should probably have commissioned a new one so that decisions were made on the very latest evidence and understanding of Mr Kelly’s condition.

The tribunal found that Kelly was discriminated against because of his disability and was unfairly dismissed.

Whilst it is possible to purchase insurance that will cover the cost of legal representation at Employment Tribunal, at HR Champions, our policy is to help our clients take the right steps and appropriate action to avoid getting anywhere near a Tribunal claim in the first place. For information about how we can support your businesses contact us on 01452 331331 or via e-mail on This email address is being protected from spambots. You need JavaScript enabled to view it.