Employment case study – effective investigations

Year Published: 2022

The case of Callaghan v Lidl Great Britain Ltd illustrates the importance of conducting thorough investigations based on robust evidence and also of making reasonable adjustments for any employee with a disability.

 

Background

The claimant had worked for Lidl from 2017 until her resignation in 2019.

The claimant had made complaints to her employer that she had been subjected to ‘shouting, exclusion, inappropriate offensive jokes, unwanted physical contact, intimidation, unreasonable criticism, undermining, blocking promotion, excessive workloads and non-cooperation’. Her complaint regarding physical contact was in relation to an incident in which her boss, Mr Carter, had tried to pressurise female employees into swimming in front of him during a work social event held at Centre Parcs over a weekend. Whilst this was happening, the claimant was not looking at Mr Carter, so he grabbed her face to turn her round to look at him. The claimant stated that this made her feel intimidated.

The claimant raised a formal grievance in relation to these complaints.

At the time of the above events, the claimant had been diagnosed with functional patella alta, fat pad oedema and patella tendonitis, which amounted to a disability.

The claimant’s grievances were not upheld. In relation to the allegation of unwanted physical contact, Mr Clark, who had heard the grievances, held that no one witnessed it and he was therefore unable to determine if this had taken place. He therefore did not accept the claimant’s version of events. However, he did accept Mr Carter’s version of events, which was that there had been a group hug which could potentially be what the claimant was aggrieved about, as at the time the claimant had told him she would knock him out if he did it again. He admitted that the group hug could have been viewed as unprofessional in the circumstances but denied that he had ever grabbed the claimant’s face. Mr Carter’s version of events was also uncorroborated. Mr Carter stated that the claimant had never really fitted in, and he felt she was just trying to stir things up.

The claimant appealed against the grievance outcome but was unsuccessful in her appeal. This led to her handing in her resignation in March 2019.

Tribunal case

The claimant brought claims of direct sex discrimination, failure to make reasonable adjustments, victimisation and direct disability discrimination to the Employment Tribunal and was successful in her claims for direct sex discrimination, failure to make reasonable adjustments and victimisation.

The judge held that Mr Clark had been wrong to accept Mr Carter’s version of events over the claimant’s when he was unable to provide an explanation as to why he had done this, especially considering both Mr Carter’s and the claimant’s evidence were uncorroborated. He was wrong to have not upheld her grievance on this basis.

In relation to the claim for failure to make reasonable adjustments, this claim was brought on the basis that the respondent had required the claimant to walk to the administration block for her grievance interview which was 500m from her workstation and was therefore difficult for her to get to given her disability. Her appeal interview was held in London, which was an even more significant distance for her to travel. The claimant argued that the respondent had breached the duty to make reasonable adjustments for her disability because these meetings could have been done remotely.

The judge held that the proposed adjustment was very simple and would have cost the respondent nothing. The judge therefore had no difficulty in finding that it would have been reasonable for the respondent to have made the adjustment and held the meetings remotely in light of the claimant’s disability.

What to take from the judgement

This case highlights the importance of investigating grievances properly and thoroughly, as well as showing how differing versions of events should be dealt with.

One of the main issues here was that Mr Clark had two pieces of uncorroborated evidence before him – one from the claimant and one from Mr Carter. He decided to accept the evidence of Mr Carter and dismiss the evidence of the claimant, however, given they were both uncorroborated, he had no reason or explanation for doing this.

What Mr Clark should have done in this situation was accept neither piece of evidence and say that he was unable to uphold either version of events given the fact neither of them had produced anything to back up their statements. You cannot accept someone’s account purely on the basis that you think they’re telling the truth and the other person is not. There needs to be evidence or some justification to back this up. In the absence of this, a finding cannot reasonably be made.

In relation to the proposal of reasonable adjustments, the main thing to take from this is to not just dismiss a request that has been made without any justification. Think about what the employee has asked for, how this might assist them and how/if the business can reasonably facilitate it. This would include looking at cost, for example if it is a small business and the adjustment in question would cost tens of thousands of pounds to facilitate, then it might be reasonable for the business to refuse to make the adjustment. If, however, there is no justification for refusal and the adjustment would avoid the employee suffering a substantial disadvantage because of their disability, then such a refusal is likely to be deemed unreasonable.

For more information on any of the issues related to this case study, please contact Aisling Foley in the employment team on 0161 475 1210 or [email protected]

 

 

 

 

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