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Jul 2022

Last Updated: 22/07/2022

Business

M&S employee in Harrogate unfairly dismissed after face mask confrontation

by Vicky Carr

| 19 Jul, 2022

Deborah Daisy, who worked part-time at M&S Food on Leeds Road in Harrogate, went off work with anxiety in late January 2021.

A Marks and Spencer employee in Harrogate was unfairly dismissed following an altercation with a customer over a face mask, a tribunal has found.

Deborah Daisy, who worked part-time at M&S Food on Leeds Road in Harrogate, went off work with anxiety in late January 2021.

She told her employer it was down to the covid pandemic in general, but was also caused by an incident in which she asked a customer to put on a face mask in the shop. The customer was then aggressive towards her, she said.

The report from an employment tribunal in Leeds said:

"Adjustments were discussed to facilitate a return to work. Specifically, they discuss the claimant not working on the door of the store as a store host which involved controlling the numbers of people entering the store and reminding them to wear a mask.

"[Marks and Spencer] was asked whether or not she could think of any other adjustments and replied that she could not."

However, Ms Daisy then told her employer she would feel comfortable to return to work once she was fully vaccinated.

She was referred to occupational health and, during meetings with them, referred to a previous armed robbery and an incident when she confronted a shoplifter as making her feel unprotected in her workplace.

Following a meeting in early March, an occupational health officer said:

"This employee is not fit for work in any capacity at present and timescales for recovery are unclear, therefore it is unlikely that a return will be feasible in the reasonably foreseeable future.

"Should the business have exhausted all reasonable support and all reasonable adjustments have proven unsuccessful, I would recommend formal consideration for ill health retirement with submission of the relevant pension scheme documentation."

Mrs Daisy had several further phone appointments with her employer over the following months, at each reiterating that she did not feel safe to return to work. Company representatives asked if any adjustments could be made to help her, but she said no.

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In a meeting in June 2021, Ms Daisy was told that she could not be given an update about what action had been taken against the abusive customer "due to GDPR". She asked about the previous incidents which had made her feel unsafe and was told they had been discussed at previous meetings.

Off work for 24 weeks

At the end of the meeting, Ms Daisy was dismissed on the grounds that she had been off work for 24 weeks and was not able to return.

She submitted an appeal the following month, but another M&S employee concluded her dismissal had not been unfair. However, the tribunal held in Leeds in May found it had been.

The report published at the end of June said:

"Although the respondent [M&S] has produced a standard operating procedure for dealing with external crime, there was no evidence of specific training in this, or in handling abusive customers, in the claimant’s case. There is no evidence before of recording threats to staff or any specific processes for reporting abuse to staff."

In the report, Employment Judge Knowles said M&S had said Ms Daisy had not submitted an official complaint about any of the incidents. However, the report said Ms Daisy had not been trained in making these and it was unclear why, when she reported them to her manager, they were not treated as official complaints.

The report added:

"Although the number of meetings is indicative of [Mrs Daisy] being adequately consulted from the interview notes it can be seen that they did not discuss the investigations due to vague reasoning concerning GDPR.

"Throughout the process, the claimant [Mrs Daisy] raises incidents, workplace violence, and the respondent [M&S] clearly failed to establish the facts and investigate those incidents which led to the absence and perpetuate the absence.

"This was not even close to a reasonable investigation. The respondent failed to consider reasonable adjustments, stopping shoplifters, locking the doors after hours, investigating her complaints, and there could have been a return to work."

Judge Knowles found M&S could have engaged more with its employee over its investigation into the incidents and ways of overcoming her safety fears, saying the company could have been expected to wait longer before dismissing her if that process failed to enable her to return to work.

He said:

"It is not for me to comment upon how the respondent might have taken steps to address [Mrs Daisy]’s safety concerns.

"I am surprised that those matters were not explored with [Mrs Daisy] given that [M&S] is a well-resourced retailer in the UK and given that the plight of shopworkers and the abuse they suffer at work is generally well known."

The compensation to be given to Ms Daisy will be decided at a future date, but will be reduced by 25% on the grounds that she could have been dismissed in future anyway.

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M&S employee in Harrogate unfairly dismissed after face mask confrontation

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Off work for 24 weeks