Supermarket failed to outline disciplinary consequences of breaching health and safety rules

An employee working in a supermarket’s delivery yard was unfairly dismissed for wearing headphones, an employment tribunal has ruled, despite finding that the incident was serious.

The London South Employment Tribunal heard that Victor Onyike worked for Sainsbury’s as a commercial assistant in the delivery yard of its Wandsworth store between either 1 December 1999 or 15 March 2004 – the dates were disputed – until his dismissal on 16 March 2017.

He worked in a known high-risk area: the loading bay and delivery yard dealing with the store’s deliveries from articulated lorries and the loading and unloading of vans.

Although there was a safe working practice notice on the delivery yard’s noticeboard, which included an outline that any employees entering the area were required to wear high-visibility clothing and must be aware of any vehicles entering the yard, it did not specify against wearing headphones.

Sainsbury’s overall approach towards health and safety procedures was also, however, covered in its employee handbook, which specified that failure to follow these procedures amounted to gross misconduct.

On 1 March 2017, store manager Mike Miller saw Onyike working in the delivery yard while wearing headphones. In a statement, he recounted walking over to Onyike to tell him to remove them. Onyike claimed Miller merely signalled to him to remove them. A deputy store manager, Khalid Laazizi, again observed Onyike wearing headphones in the delivery yard on 6 March. Confronted, Onyike said the headphones were turned off.

The next day, his department manager asked Onyike to attend a meeting that day to investigate his alleged failure to follow health and safety procedures. Onyike admitted to wearing headphones in the delivery yard at this meeting, but said there was no music playing and he was unaware he was wearing them.

The matter proceeded to a disciplinary hearing conducted by an investigating manager, at which point Sainsbury’s expressed its view that wearing headphones would impair Onyike’s hearing regardless of whether music was played. Onyike was invited to a further disciplinary meeting on 13 March when he accepted that Laazizi and Miller had told him not to wear headphones in the delivery area, but maintained that he could hear. He apologised for his actions and vowed to not repeat them.

At a further disciplinary meeting on 16 March, Onyike said he did not believe wearing headphones would endanger him because he was wearing high-visibility clothing which drivers could see. That meeting ended with his dismissal. He appealed and brought claims of unfair and wrongful dismissal against Sainsbury’s.

Finding Onyike’s dismissal unfair and wrongful, Judge Hall-Smith said that Sainsbury's had focused on its assumption that he would repeat his actions, and failed to outline that wearing headphones in the delivery yard was a health and safety rule or inform staff of the disciplinary consequences of wearing them.

But Hall-Smith did acknowledge that it was reasonable for Sainsbury’s to take the view that Onyike’s hearing would be impaired by wearing headphones and it was justified in treating the incident as “very serious”.

The judge therefore said Onyike contributed to his dismissal to the extent of 80 per cent. A remedy hearing will follow.

Robert Maddocks, associate at HRC Law, told People Management that the case “shone a light” on businesses’ exposure to unfair dismissal claims, and demonstrated that employers need to regularly review their policies. “Behaviour considered gross misconduct should be clearly set out in the disciplinary policy,” he said.

In this case, as Sainsbury’s deemed the use of headphones as dangerous, the policy – and the consequences of failure to comply –  should have been clearly detailed within the company policy, he said.

“If an employer wishes to enforce a rule, such as a ban on headphones, they are responsible for ensuring employees are expressly aware of it. This must be done explicitly with no room for misinterpretation. Going forward, Sainsbury’s needs to review its policy and update accordingly.”

He added that Sainsbury’s “jumped the gun” with the disciplinary sanction in this case, and should have “given more weight to the fact the employee had a significant amount of service and no previous disciplinary record. Consideration should have then been given to alternative actions, such as a formal warning.”

A Sainsbury’s spokesperson said it was disappointed with the outcome but declined to say whether it would appeal.

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