Employment Advice

What must an employer show when defending against discrimination claims?

A recent employment tribunal case involving Tesco serves as a stark reminder to employers to employers that they need to be aware of discrimination claims and how they work.

24 Sep 2021

Team name
James Bowles

James Bowles

Toby King, a Tesco worker has been successful in a claim against the supermarket chain after he alleged that he had been ridiculed by his female manager for being ‘intimidated’ by her following an incident regarding overtime hours.

Mr King outlined to the tribunal that his manager had ‘falsely imprisoned’ him in a room by putting her ‘foot against the door’ and stopping him from being able to leave the room. Following this incident, she teased Mr King saying that a ‘big man’ could not be intimidated or frightened by a 5’4’’ tall pregnant woman. Mr King is 6’ tall and suffers from PTSD following an incident where he was ‘held hostage’ in an incident while working for the Prison Service.

Mr King reported this to one of the other managers at the store, but his claims were not taken seriously, Mr King was later signed off work by his GP. Tesco claimed that they did not receive any sick notes and later dismissed Mr King after he failed to be present at a disciplinary meeting. The Judge ruled that Tesco had failed to reasonable investigate the conduct and allegations of intimidation and harassment against Mr King’s manager. Moreover, the court found that Tesco had displayed sexual harassment and discrimination in dismissing him.

Moreover, in another recent case an employer was held liable for the discrimination by one of its employees against another employee despite employees receiving training and being made aware of company policies and procedures. The decision was made as the employer had not taken ‘all reasonable steps to prevent’ the behavior as two managers had witnessed the discriminatory behavior but not done anything about it. Moreover, the training provided to employers was several years out of date and so it was found that the respondent had not taken all reasonable steps.

M&P Commentary

James Bowles, a trainee solicitor in our Commercial team, said:

“In practice an employer will need to be able to display that they have taken steps to properly investigate all allegations and complaints of discrimination regardless of the nature of the allegation and the gender or race of the parties involved.

“Employers will also need to be careful when making any decision as there are a number of different scenarios in the current climate where a claimant will be able to claim that a decision or action was taken due to discrimination.

“Employers should consider the following as more employees return to office work and from furlough:

  • Pay reviews;
  • Changes to benefits;
  • Allowing some staff to work from home;
  • Rota / shift changes
  • Imposing Covid related conditions for office workers;
  • Selecting employees for redundancy in the absence of furlough support.

Employers should also maintain clear records of decisions and why they are made as well as records of any and all allegations of discrimination and the subsequent investigations.”


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