Supermarket manager wins harassment claim when excluded from International Men’s Day post whilst sick

A recent case at tribunal shows the difficulties of determining when a well-intended act crosses the line into harassment.

In the case Mr Cooper, a Sainsbury’s store manager, who had been off sick for sixteen weeks with anxiety was excluded by from a post by his Regional Stores Director on LinkedIn and Yammer (a social networking platform now called Viva Engage). The post was a celebration of International Men’s Day in which the director’s male store managers were recognised and thanked. The director included photos of each store manager in his region and in the LinkedIn post he named and tagged them so it would link to their own pages on the platform. The director thanked them all for showing “up for work each day” despite their individual personal issues.

However Mr Cooper was not named or tagged.

At tribunal, Mr Cooper claimed the director’s actions had caused “untold further damage” as friends having seen the post asked him if he had left Sainsbury’s. He claimed this resulted in his health situation being exacerbated.

The director explained his actions and decision-making for not including Mr Cooper. He told the tribunal that Mr Cooper had deleted WhatsApp and had asked not to be contacted so he could be left alone to recover. The director thought that if he included Mr Cooper in the posting he would have been disturbed by “hundreds of alerts”. He thought Mr Cooper would not want this and as he did not have a photo of the employee he decided it would be inappropriate to request one from him.

The tribunal acknowledged the difficulties of the case for both the director and Mr Cooper but ultimately ruled in favour of the employee. The tribunal found the director’s failure to include Mr Cooper in the International Men’s Day posts was harassment and unfavourable treatment related to a disability.

The tribunal accepted Mr Cooper’s statement that by having people contact him it caused him to feel excluded. As a senior store manager it was reasonable for Mr Cooper to feel humiliated. The judgement noted there was no reason why the director could not have informed Mr Cooper about the post when they had spoken the day before.

In this case the harassment occurred because the decision not to include Mr Cooper in posts was made because of his long-term sickness and that sickness was occurring as a consequence of the employee’s disability.

The case is a reminder:

Of the need to train managers at all levels on diversity and inclusion. The training must inform managers of the need to consider an individual’s protected characteristics when making decisions on whether to take an action relating to the employee.

For managers to consider how their use of social media can constitute harassment even when it is not intended.

To ensure all employees at all levels have a basic understanding of what constitutes bullying, harassment and discrimination to help prevent them from crossing the line. Include definitions of each in your Anti-Harassment and Bullying Policy.

If you have not received your Bullying and Harassment Policy template updated for 2024 please let your HR consultant know.