In a recent ruling by the employment tribunal, Mr C. Goh, a cashier at Asda, was awarded £30K from his former employer. The case stemmed from incidents of physical assault by a fellow employee.
Despite raising complaints, these concerns were disregarded by the management, and consequently, Mr Goh pursued legal action, citing sex discrimination, leading to the tribunal’s decision.
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Since 2010, Mr. Goh has been employed at the Wallington branch of Asda. In January 2019, his female colleague Mercy Asante unexpectedly kicked him in the backside. Thinking it was a “one-off,” Mr. Goh initially ignored the incident.
But it was not. Three weeks later, Ms. Asante kicked Mr. Goh again from behind while working on the tills. Mr Goh reported jolting forward from the kick and subsequently seeing his GP about the pain.
At this point the cashier reported the incidents to his line manager and provided a statement. Additionally, colleague Ms Paramsivam, a witness from the counter over, also provided a statement describing the incident.
Nonetheless, in the following months, the complaint was left completely ignored by management in Asda.
“No investigation was carried out, no
witnesses were interviewed and the respondent was not providing
any feedback to the complainant”.
Reserved judgement
Only after asking a manager about his complaint again in June did Asda launch an investigation. Mr Goh, Ms Asante and Ms Paramsivam were each interviewed separately in the fact finding process, which concluded in July.
Mr Goh claimed he had had a friendly but normal working relationship with Ms Asante but her actions were completely unexpected.
She claimed though that they joked around a lot at work, stating ” we are always hitting and punching each other as a joke”.
Six months later in December a mediation meeting was organised for the claimant and Ms Asante. In the meeting Ms Asante claimed that Mr Goh had even touched her breasts, which the claimant strongly denied.
This led him to file a formal grievance against Ms Asante later that month. In it, Mr Goh raised two points. Firstly, he complained about the assault, which had left him in serious pain. Secondly, he felt that he had faced sex discrimination from his employer.
Had the roles been reversed, he felt a female colleague would have been taken more seriously, resulting in a faster investigation and disciplinary. At this point he had been waiting almost a year to resolve the issue.
Nonetheless, Mr Goh’s complaint was not upheld. The investigation concluded that the act had simply been part of banter between colleagues. By April 2020, Ms Asante had been found by Asda to have “no case to answer”.
In a meeting with Mr Fisher, who at this point had taken over the investigation, Mr Goh raised his points again. However, his point of sex discrimination was ignored, and Mr Goh was encouraged to move on.
At this time Mr Goh took his case to the employment tribunal.
The tribunal agreed with the Mr Goh’s claim of sex discrimination. To reach this conclusion, the tribunal used the hypothetical comparator of a woman being attacked in the same way by a man.
In this case, they found that the employer would have acted swiftly to address the situation – and certainly not ignored the complaint for months.
Additionally, the court found that the investigation was flawed in a number of ways. Asda’s own manager training states that investigations regarding staff behaviour should be performed swiftly after the event.
Additionally, the investigation should be thorough in gathering evidence – such as interviewing witnesses. However, the investigation was only launched four months after the incident.
The court noted that each interview had been conducted by a different member of staff, fragmenting the investigation.
Furthermore, no individual in the organisation seemed to take ownership of the investigation process. Lastly, another key witness to the event was never interviewed, nor was Mr Goh’s GP contacted.
There is no evidence whatsoever of any coordination of the process reserved judgement
The bias against Mr Goh as a man, compounded by a poor investigation, proved costly for Asda. At a remedy hearing last month, the tribunal decided on a payout of £30 000, including £18 500 for injury to feelings.
However, this is not the first time employers have been caught out by poor investigation skills. Employers should be weary to consider their own bias regarding staff behaviour and perform thorough and timely investigations.
For advice on how to effectively conduct workplace investigations and how to comply to discrimination legislation, contact HR First.
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