Shock News! Six Foot Man Intimidated by Much Smaller Woman!

This is part 1 of a series of short posts in which we’ll look at an Employment Tribunal decision and try to learn some lessons: much better than going through the ET ourselves and learning the hard way!

It is fabulously easy to be critical when looking back. So, if anyone involved in the case reads this post, I plead guilty to using the luxury of 20:20 hindsight.

In King v Tesco Stores [2021], Tesco was found to have subjected Mr K to harassment related to sex, to have discriminated against him on grounds of sex and to have dismissed him on grounds of sex.

This is not a sexual harassment case in any salacious sense. In short, the facts found by the Tribunal were as follows:

• Mr K was around 6 feet tall; his line manager was 5 feet 4 inches and 5 months pregnant at the time.

• He suffered from post-traumatic stress disorder, following an incident when he had been held hostage while working for the prison service. His line manager gave evidence that she had forgotten this, but her evidence was not accepted on that point.

• She wanted to persuade him to work more shifts.

• He was reluctant, even though his contractual hours were flexible.

• She asked him to join her in a private room to discuss this further; he agreed.

• He began to feel uncomfortable in the room and tried to leave.

• She tried to physically restrain him from leaving. He was eventually able to squeeze through the door.

• Mr K complained of false imprisonment but did not raise a formal grievance.

• Tesco did not investigate the line manager’s conduct, partly because they were swayed by “an instinct” that a big man would not be intimidated by a little, pregnant woman.

• Mr K became unwell with PTSD-related symptoms and was absent from work.

• His absence was dealt with under the disciplinary (rather than sickness) procedure.

• He was ultimately dismissed, purportedly for being absent without leave.

For me, the top 5 lessons to learn from this case are:

1. Your evidence might not be accepted by the Tribunal.

This is a hard one to swallow. Most witnesses believe they are telling the truth, as they see it. They also believe that the Tribunal will believe them. But there are always inconsistencies and the Tribunal has to decide which evidence to prefer. Taking a step back from the hurly-burly of the case, do you really want to take that risk?

In this case, the Tribunal largely preferred Mr K’s evidence and on one point found that a Tesco witness was lying. If Tesco's defence team had previously given an estimate of the chances of success, it was blown to bits by this.

2. Don’t automatically trust your instincts or your gut feelings.

Instincts and gut feelings can be useful, but behind them lurks a seething mass of assumptions. Those assumptions should be questioned. Some of them might well be wrong or unconsciously discriminatory.

In this case, the “instinct” that a large man would not be intimidated by a small, pregnant woman was found to be misguided and discriminatory on grounds of sex. In particular, it was based on stereotypical assumptions and failed to take into account that the man suffered from PTSD.

3. It ain’t what you do it’s the way that you do it.

The fact that you have a contractual right to do something doesn’t necessarily make it "right". In this case, in view of the flexible hours contract the line manager was within her rights to ask Mr K to work more shifts and to question his reluctance.

However, the way she went about it was wrong. In fairness to her, the Tribunal's view was that she had insufficient HR support, particularly in view of the number of people she was managing.

4. Avoid Groupthink

There is a natural and perhaps understandable tendency amongst managers to close ranks when challenged. Ultimately, this is dangerous for them personally and for the organisation.

In this case, the Tribunal found that the disciplinary manager's evidence “ … betrayed an unsympathetic mindset to the claimant and to his explanations.” This led to the Tribunal’s conclusion that the manager “ … did not approach the disciplinary hearing with an open mind able fairly to consider what the claimant was saying.”

5. Actively listen, engage and respond sensibly

This relates to the last point, but deserves its own slot. There were multiple failures to listen to Mr K in this case, including to his explanations for feeling that he had been falsely imprisoned, his reasons for not wishing to accept additional shifts and his reasons for not communicating while he was absent from work.

You don't necessarily have to accept explanations given by an employee. However, failing to listen to them, engage with them and respond sensibly leaves the employer badly exposed.

There are many other lessons that can be learned from this case. I would be interested to hear of any other points that occur to any readers

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Image: from Wellcome Images, licensed under the Creative Commons Attribution 4.0 International license.