Workplace Safety – Anxious Shop Worker Succeeds in Unfair Dismissal Claim

Aggressive customers are the bane of many shop workers’ lives and those workers are entitled to have their concerns for their safety at work fully addressed by their employers. An Employment Tribunal (ET) powerfully made that point in upholding a retail worker’s unfair dismissal complaint.

The customer assistant had been on sick leave for several months, suffering from anxiety and depression, prior to her dismissal. She was concerned about the risk of infection with COVID-19 at work and said that a primary source of her anxiety was an incident in which a customer was aggressive towards her after she confronted them for not wearing a mask. Expressing fear for her safety, she also cited other incidents at the store, including an armed robbery.

Her dismissal followed a lengthy health assessment procedure, including nine phone calls, five consultation meetings and two occupational health reports. There was in-depth discussion of reasonable adjustments that might be made to enable her return to work within a reasonable time. Her employer ultimately took the view that it had exhausted all options short of dismissal.

Ruling on her case, the ET found that her dismissal was solely on capability grounds and that she was consulted regularly and frequently during her sickness absence. Managers involved in the process genuinely believed, on the basis of occupational health advice, that she was no longer capable of doing her job and that there were no reasonable adjustments that could facilitate her return to work.

Ruling her dismissal unfair, however, the ET noted that her principal complaint was that the employer was not doing enough to protect her from harm at work. Whilst a reasonable investigation into her personal safety concerns was carried out, its outcome was not shared with her until after her dismissal.

Finding that the employer could have been expected to wait longer before dismissing her, the ET noted that she reasonably wanted to know what had been done about the aggressive customer. However, there was a failure to engage with her about the results of the investigation or to explore with her steps that might be taken in future to ensure that she would feel safe on returning to work.

Given that the plight of shop workers and the abuse they suffer at work is well known, the ET expressed surprise that such a well-resourced retailer had not fully explored her safety concerns with her. Overall, it found that no reasonable employer would have chosen to dismiss her in the particular circumstances.

The ET accepted that there was a 25 per cent chance that she would have been dismissed on capability grounds in any event. The amount of her compensation – which would be assessed at a further hearing if not agreed – would therefore be reduced by that percentage.