Employment Tribunal Case Study!
An employee who reported his colleagues for theft and who was shortly afterwards attacked by one of the colleagues he had accused has won his case at the Employment Tribunal for unfair dismissal. Mr Mehmet who had been working for Sainsbury's Supermarkets at the time, reported his colleagues for theft at the Penge store that he had worked at for 4 years. It was shortly after he had reported his colleagues to the security detective in the region that he was attacked by one of his colleagues. As a result, Mr Mehmet defended himself and as a result of defending himself hit his colleague knocking his colleague to the floor. After the incident Mr Mehmet and his colleague were told to return to work by the Sainsbury's management team but Mr Mehmet refused on the basis he did not feel safe after being attacked on more than two occasions the night the incident took place.
Shortly afterwards Mr Mehmet was fired from Sainsbury's for the incident, Sainsbury's accused Mr Mehmet for fighting and dismissed both Mr Mehmet and his colleague. The Tribunal found that Mr Mehmet had not been fighting and had in fact defended himself against an aggressive attacker with reasonable force. The Tribunal also found that Mr Mehmet's confidentiality had been broken when he had reported the thefts and that he had suffered racial harassment when he was attacked. Mr Mehmet was awarded compensation and loss of salary from his employer and the Employment Tribunal came to the decision that Mr Mehmet had not been at fault in anyway and that Sainsbury’s Supermarket had put Mr Mehmet’s welfare at risk as Mr Mehmet had been working undercover for the Sainsbury’s detective at the time of his attack. The Tribunal found that Mr Mehmet had been helping Sainsbury’s stop theft in their store by reporting his findings to the security team but when he was attacked the store denied that they knew he had been helping them and had instead cast him aside.
Mr Mehmet has since published the book Mehmet VS Sainsbury’s supermarkets limited. Check out a sample of the book below!
Chapter from Mehmet VS Sainsbury's
This is my statement, I am the claimant Freddie Mehmet
IN THE EMPLOYMENT TRIBUNAL CASE NO: 2313194/2010H
B E T W E E N
MR F F MEHMET
SAINSBURY’S SUPERSTORE LIMITED
CLAIMANT’S WITNESS STATEMENT
I, Freddie Mehmet, of ** ***** ******* ******* *****, Southeast London, am the Claimant in these proceedings and I will say as follows:
My employment history with Sainsbury’s
1. I am 34 years old. I am British, of Scottish-Turkish ethnic or national origin. My father is of Turkish national origin.
2. I began working for Sainsbury’s in 1995 at their Forest Hill branch. It was my first job after leaving school and I worked at the Forest Hill branch for five years. I worked in a number of positions, starting as a Trolley Assistant and then moving to a Produce Assistant, Back Door Assistant and finishing as a Nightshift Supervisor.
3. I then went to work at the New Cross branch of Sainsbury’s for two years as a Produce Supervisor and an Assistant Fresh Foods Manager. I then went to work in the Greenwich branch as a Produce Supervisor for just over a year.
4. I stopped working for Sainsbury's around the end of 2003 and went to work for a security company called Securiplan. This involved working in many Sainsbury’s “Local” stores around London. After a year in the security field I decided I wanted to return to work for Sainsbury’s. In 2005 I began working at the Penge branch as a Night Shift Assistant.
5. During my many years working for Sainsbury’s, I was loyal and hard working. I put the company first in my actions at work. The thought of never being able to work again for Sainsbury’s, which had been such a big part of my life for 15 years, after the events I’ll explain below, is still a shock to me.
My employment at Sainsbury’s Penge
6. At Sainsbury’s Penge, I was appointed as a Nightshift Fresh Foods Assistant. I had a great deal of experience working in the Fresh Foods department. Sainsbury’s Penge already had a night shift on grocery but I was to be on my own working in the Fresh Foods department. My job involved dressing and replenishing the Fresh Foods section. It was a trial position and it was up to me to prove that it would be beneficial to the company having a night shift worker specifically for Fresh Foods. After a few weeks I was told that it had been a success, and more staff were employed in the Fresh Foods department.
7. During my time at Sainsbury’s Penge, from 2005 to 2010, I worked with four different Store Managers. The first three Store Managers seemed very happy with my work, so much so that I was asked on several occasions to take on a management position due to the previous experience that I had. The problems I experienced leading to my dismissal, set out below, were under the fourth Store Manager, Paul Miller. My experience with Paul Miller was that he had some favourites amongst the staff, with whom he was quite cliquey, and he kept most others at arm’s length. I just got on with my work and minded my own business, except when I discovered thefts occurring at the store.
The background to my disclosures of thefts in the Penge store
8. In 2009, I came to believe that my night shift colleague, Sami Shwali, another Assistant like me, and Jane Palmer, Acting Team Leader on Sundays were stealing from the store. I’ll say more about the thefts below, but I want first to explain about the culture and atmosphere which existed in the Penge store and why I felt unable to raise my concerns directly within the store.
9. When I discovered the thefts were taking place, I felt that I should really speak to my store manager Paul Miller, but by this time he had become very close to John Collins, the Night Shift Manager and to Jane and Sami.
10. I was also aware of times in the past when colleagues had made allegations of wrongdoing against other colleagues, including allegations of theft and of racial abuse concerning the Penge store. When these matters were brought to Paul Miller’s and John Collins’ attention, I understood that the staff who complained had been subjected to bullying, victimisation and a lack of confidentiality after reporting the allegations. I also heard that complaints about misconduct by staff in the Penge store had not been properly investigated. I heard these things from colleagues such as Sharon Lawrence and Anthony Miller who had either made, or were believed by other staff to have made, allegations about thefts in the Penge store. I mention both these people further below.
11. I mentioned my concerns about the lack of in-store confidentiality in both the internal Sainsbury’s investigation into the incident between Sami and me (see pages 103 and 104 – investigatory meeting; pages 203 and 208 – appeal meeting), and in my claim to the Employment Tribunal (see page 4). I also mentioned my concerns about inadequate investigations into allegations made in the store in the past, and my concerns about the victimisation of those who complained, in both the internal Sainsbury’s disciplinary process (see page 171 – disciplinary hearing; page 203 – appeal meeting) and in my ET1 form (see pages 5 and 8)
Previous problems in response to complaints of race discrimination
12. Sami Shwali, who was to assault me on 14 February 2010, had a particular history of racially abusing and physically abusing my colleagues in the company, and a blind eye had been turned to this in the past by John Collins and Paul Miller.
13. On one occasion, I was sitting in the smoking room in the canteen with the night shift and Sami referred to my colleague Khair as a “Paki”. I and other colleagues in the room told Sami that he shouldn’t speak in that way and that it was not acceptable. Sami’s response to this was to open the door to the smoking room and call out “Hey Paki” at the top of his voice throughout the canteen. I mentioned this during the disciplinary hearing (see page 171).
14. This instance of racial abuse would have been clearly heard by everybody sitting in the canteen, including John Collins and Andrew Barber, a supervisor on the shift at the time. I understood from John that Sami was spoken to informally but no disciplinary action was taken against him and it seemed to have no effect on his attitude or behaviour.
15. Sami had also called another member of staff, whom I know as "Matheus", a "black c**t". When Matheus had complained to John Collins about this, I understand from Matheus that John did nothing. Matheus told me that he then told Paul Miller, who had told him that he did not want to hear about racism in his store and Paul Miller told Matheus to stop “making accusations”. I was concerned to hear this and so I spoke to John Collins about this issue. John told me that the reason Paul Miller did not believe Matheus was because Matheus had made a complaint against John only weeks earlier for racial discrimination. It appeared that Paul did not want to believe that John and Sami were racist. Instead Paul accused Matheus of making up allegations and gave him an informal warning. I told John of my disappointment that, in light of Sami’s previous conduct, he had not received at least a formal warning for calling Matheus a racist name. John told me that it was Sami’s word against Matheus’s and said to me that he did not think the situation was serious enough to give concern. So, twice I had a conversation with John Collins about Sami’s racial abuse and yet no action was taken against Sami.
16. Khair later transferred to the Norwood Sainsbury’s store as did Matheus.
Previous problems in response to allegations of wrongdoing
17. In 2009, allegations of theft were made to John Collins by a colleague Sharon Lawrence. Sharon had seen another colleague Andrew Barber steal a sandwich from the shop floor and told John what she had seen. I understood, after having a conversation with Andrew Barber at the time, that John Collins went to Andrew Barber, told him what Sharon had said and advised him to “watch Sharon in future” as she could not be trusted. Andrew told me that he was very upset with Sharon for telling John Collins. It was not clear if Andrew had in fact paid for the sandwich but what was clear was that John Collins had breached Sharon’s confidence and caused a rift between them. I mentioned this issue in the investigatory meeting (see page 104), in the disciplinary meeting (see page 171) and in the appeal meeting (see page 203).
18. Another time, a colleague called Chris, whose job was to scan the tickets on the shelf, worked on a night shift. He saw another colleague, Abdi, steal an item from the shelf. Chris did not go to John Collins to report this as he did not know John, but instead left a letter on Paul Miller’s desk reporting that he had seen Abdi steal something. I learned this from Abdi. It turned out that John Collins had become aware of the letter left for Paul Miller by Chris and had told Abdi not to trust Chris in the future because he was a “grass”. I mentioned this incident in the investigatory meeting (see page 103) and in the appeal meeting (see pages 203 and 208). This was another example of information passed on in confidence and the confidence being breached.
19. Another example of a similar situation was in 2009. John Collins held a meeting in the canteen and informed all the colleagues present that it had been reported to him by Paul Miller that someone had phoned the Sainsbury’s “Confidential Help Line” and had reported a theft on the night shift. The person had not given their name but had reported that they were working on the drinks section and had seen somebody steal a drink, which John then told us.
20. It seemed from what followed that there was less concern about the theft than knowing who the “grass” was. A few hours later Sami went around the shift and told everybody, including me, that a colleague called Anthony Miller had made the phone call. I questioned this, but Sami, Jane Palmer and John Collins were convinced that it was Anthony. They considered the information that they had been given (the day the call was made, the details of the phone call, that the person who made the call said they had been working on the drinks department, the people working on the drinks department on that night) and became convinced that they had found the “grass”. I subsequently saw Anthony being bullied: Jane Palmer made comments about his personal hygiene and said that he did not support his children. Shortly after this, Anthony’s car window was smashed in the car park in the middle of the night. I also mentioned Anthony’s treatment in the Sainsbury’s internal procedure (see pages 103 and 171).
21. John Collins had asked me on several occasions in 2009 for my advice on how to handle Sami. John seemed to feel that Sami was getting out of control and that his behaviour was worsening. For instance, I asked Khair on one occasion how he got a gash on his face. Khair told me that Sami had thrown a hard plastic crate at him. On another occasion Sami had attacked a colleague named Andrew Barber. I mentioned this during the disciplinary process (see pages 103, 105 and 172). This same incident was mentioned during Sami’s investigatory interview so the store was aware of his history (page 91). I say more about this incident below.
22. I believe that John knew that incidents like this were common place, as he referred to Sami more than once to me as a "loose wire", or words to that effect. But John Collins was part of the same clique, with Jane and Sami, and would let Sami get away with breaking the rules.
23. I also suspected that John had let Sami get away with so much wrongdoing because he knew that if Sami was to get caught then Sami would drag John down with him, so instead John turned a blind eye to Sami on many occasions.
24. This is the type of culture that existed in the Penge store in 2009 and early 2010.
25. By the time of the thefts I witnessed, I believe that John had become very close to Sami, although I only discovered in these proceedings that John was Sami’s representative in Sami’s investigatory meeting (see page 90). I also believe that John sat in on Sami's disciplinary because not only was Sami's job on the line but John would have been worried about his own job too. During Sami’s disciplinary meeting, John and Sami said that I was jealous of Sami somehow (pages 94 - 95). This puzzles me as I was not jealous and I was not given a chance to respond to this point. I was upset with Sami over the thefts from Sainsbury’s but I had been taking action about that by reporting to Brenda, as I explain below.
The thefts – what I witnessed and how I reported it
26. I only worked Friday, Saturday and Sunday nights, from 9pm to 7am.
27. In late 2009, one Saturday morning, I first witnessed, Jane and Sami come down the end of my aisle with a trolley. I noticed that they were behaving very oddly, bending over the trolley and looking around them. I walked past them and I saw that there was a large bottle of Tia Maria under a jacket on their trolley. I knew that this was Jane’s favourite drink and wondered why she felt the need to have it hidden in her trolley under a jacket. This was not a customer trolley but a work trolley that she would have to return to the far end of the warehouse. It seemed odd to me that she felt the need to pick this item up now rather than later. Because of my security experience I decided to watch them both. I watched Sami and Jane grab the bottle under the jacket and place the bottle in Jane’s bag. I then followed Jane upstairs and watched her exit the building with the bag. Subsequently, I watched them both and their trollies every Friday, Saturday and Sunday morning, I watched them steal items, such as bottles of Tia Maria, Jack Daniels and gin. They placed them under Jane’s coat, on her trolley. I would then watch Sami and Jane remove these items and place them in Jane’s bag. Jane, who was a supervisor on Sundays, would then go upstairs and clock herself out and clock Sami out.
28. This is against procedure. Sami would then cover the back exit and phone Jane to give her the all-clear. She would go downstairs and leave the building with these goods and place them in Sami's car.
29. I also saw Sami leave the premises in the middle of his shift with bags and boxes and, on the store security camera, I saw Sami placing these goods in his car. Sometimes he would drive away with these items and return around 20 minutes later. Sometimes he would leave the items in his car overnight.
30. Sami bragged to me that he had stolen items such as a hoover and a blu-ray player. He was very confident and asked me if I wanted such items too. When we had a big delivery of high-value goods (which we did in the months leading up to Christmas), Sami would walk around the shop floor and offer goods to other staff. On one occasion, Sami came to me and told me that a shipment of Playstation 3s had been delivered and that if I wanted one to come with him. I refused, as I did when he offered me other items. On one occasion my colleague Abdi told me that Sami had offered him a digital camera. Sami had told Abdi that there was a box of cameras that had just been delivered and Sami wanted one. The problem was, Sami said, that if he took one from the box then, when somebody came in the next day and put them on to the shelf, it would be obvious that a camera had been taken. Sami explained that he would have to take the whole box of cameras. I believe that it was a box of 8 - 10. Sami asked Abdi on condition that Abdi helped Sami keep an eye out. Abdi refused and told me instead. Another time, Abdi told me that he had seen Sami leave the building with a box and put it in his car. Abdi was about to tell John Collins about this. I knew that John would tell Sami, so I advised Abdi not to. However I did not want Abdi thinking that I was working with Sami (as you can imagine somebody would if advised to keep quiet about a crime), so I explained to Abdi that security were watching and that there was an investigation on Sami.
31. During the disciplinary process, I mentioned some of the thefts that I had witnessed (pages 103, 171, 172; see also my ET1 form (see page 4). My solicitors have asked the Respondent’s representatives for copies of any records of my reports of the thefts and the investigation into Sami and Jane. All that has been disclosed are the interviews which were carried out with Sami and Jane on 28 January 2010 which are at pages 66 – 82 of the bundle.
32. I was troubled by what was happening as I was loyal to Sainsbury’s, but for the reasons I have outlined above, at first, I did not know where to turn. After having conversations with my partner, Layla Farhat, who works in another Sainsbury’s store, we decided to contact Brenda Anderson.
33. Brenda was the in-store detective for the Sydenham branch but also covered Penge. I thought Brenda was a good person to report my concerns to because I couldn’t trust the Penge store managers.
34. Layla spoke to Brenda on my behalf. This first happened around October/November 2009. All of my information about the conversations comes from Layla, who is giving evidence, so I haven’t included it in my statement.
35. I understand that Brenda assured Layla that she would not inform Paul Miller of the investigation, but I found out in my appeal meeting with Paul Miller that Brenda told him (see page 203).
36. I felt that I was doing what was best not for myself but for the company. For three months I spied on Sami and Jane. My relationship with them became distant and it was around this time that John stopped confiding in me.
37. When I saw Sami and Jane steal something, I would report it to Layla. She would then pass on information to Brenda.
38. At times Sami appeared to become suspicious of my attempts to follow him.
39. On a few occasions when Sami had left the building in the middle of the night, I asked John Collins where Sami had gone. John told me to go back to work and mind my own business. Sami confronted me once he returned and asked me why I was asking John of his whereabouts, which meant John was confiding in Sami.
40. On one occasion I remember we had another manager, Mark Jenner, run the nightshift for a few weeks. Sami had left the building with some bags and I asked Mark where Sami had gone. Mark told me that Sami was working on the shop floor. I told Mark that Sami was not working on the shop floor and that I had seen Sami leave the premises and drive off in his car. Mark didn't seem to care and gave me the impression that he wasn't interested.
41. I understand that Sami and Jane were interviewed by Brenda Anderson and her colleague Donovan Parker about the alleged thefts on 28 January 2010 (typed notes are pages 72 – 75 and 80 - 82).
42. I spoke to two other colleagues about my concerns, after the investigation had begun. Sharon Lawrence often spoke to me because she felt bullied and victimised by John, Sami and Jayne. I told her and Abdi that there was an investigation into Sami and Jane and that they would be leaving the store once they had been caught. The notes of my appeal hearing suggest that I had told only one other person and that I had contacted the helpline (see page 206). I believe that the notes are inaccurate. I did not say that I had told only one person and I didn’t say that I had phoned the helpline. This may be a misunderstanding of my reference to the confidential helpline incident which I’ve explained above.
43. "TalkBack" was a form that colleagues fill out once a year, as a confidential way of informing Sainsbury’s Head Office what was going on in their store and how they felt about the management. I mention “Talkback” because this was what I was trying to discuss with Sami when he became abusive and tried to attack me on 14 February.
44. Sami had recently decided to become the Staff Council representative for the Night Shift. He effectively ousted the previous representative, Sharon Lawrence.
45. I was in the staff canteen two or three shifts before 14 February 2010 and I overheard Justin Dillon, one of the managers, ask Sami if he had got everybody to fill out the TalkBack on the shift. Sami said that he had, apart from Lesley because she was on holiday at the time. I interrupted and asked Justin what they were talking about. Justin told me that he was referring to TalkBack and he asked if I had completed it. I said that I hadn’t and neither Sami or John Collins had even spoken to me about it. I was concerned that Sami was using his role to censor what colleagues might say about the night shift under John’s management.
46. Sami had then told Justin that everybody had filled it out and that it was only me that he had made a mistake with. I didn’t believe Sami. I asked everybody in the room if Martin Kelly, a colleague, had filled it out and Jane Palmer replied “Yes he has”. This was all I said to Sami and my question was aimed at Sami, Jane and Justin.
The events on Sunday 14 February 2010
47. On Sunday 14 February, Martin Kelly and I spoke about TalkBack. Martin said that he had not been asked to, or given the chance to, fill the form out. I was surprised, as I had asked Sami, in the presence of Jane and Justin if Sami had told Martin, and Sami and Jane said that he had. I told Martin that I would speak to Sami about it.
48. I walked over to Sami and told him that Martin had not filled out the TalkBack form. Sami said that he had. Sami said that he would ask Martin and we both went to Martin, who was working on the Cereals aisle. Martin said to Sami that he had not filled out this form. Martin said to Sami that in all the years he had worked for Sainsbury’s he had never missed the opportunity to fill out the TalkBack. I asked Sami why he was telling Justin that everybody on the night shift had filled the form out when it was clear that people had not.
49. Sami became rude and aggressive towards me, telling me to mind my own business. This is when I first walked away from him as he became intimidating.
50. Sami then followed me and tried to continue the conversation, and I said that it was his responsibility as Staff Council rep to get the forms in and if he wasn’t going to do it properly he should let someone else take the position.
51. He then started to curse me and call me a “c**t”. I tried to ignore him. I told Sami that I would bring the matter up with Justin Dillion and it was then that Sami became very hostile towards me.
52. Sami approached me down the fresh foods aisle. He continued calling me a “c**t” and was very angry at me very quickly. It seemed that I was on my own with Sami. He kept call me a “c**t”, telling me to mind my own business and that I was “sad”. I asked Sami to go away and to stop talking to me like that. I was, annoyed with him and I told him at some point to stop or I would lose my temper. He seemed to be looking for a reaction.
53. Sami came closer to me and I walked back until I was against the shelving. I had the shelving behind me and a herb rack to my right hand side. I could feel my adrenaline rising due to fear. I told Sami to leave me alone. Sami’s voice drew the attention of two of our colleagues, Nana and Joseph. They stepped in between us.
54. Sami kept calling me names, a “c**t” and a “f***ing c**t”. I stood in silence while Nana tried to calm Sami down. Nana shouted at him to stop the abuse. However when Edita then came around the corner, Sami lunged forward at me with his leg. I couldn’t move out of the way - I had the shelves behind me and I could see Edita, and another female colleague, Kadieshia, watching from a few metres away. Nana and Joseph were blocking my exit. I reacted instinctively by pushing/punching Sami back in his face. I believe that I did not strike him hard – it was more a push than a punch - but he overreacted and went down on one knee and screamed that I had hit him. It was like a footballer on TV exaggerating an injury to get an opponent into trouble with the referee. He had tried to intimidate me into striking back and it worked.
55. As soon as I struck Sami and he was no longer a threat, I tried to remove myself from the situation. I turned around and could see Herman, a supervisor. I walked towards him to explain what had happened, Sami then came running towards me, calling me a “Turkish C**t” over and over again. This made me feel very upset. I said in the appeal meeting how much this offensive language hurt (page 208). I also felt angry. I thought that Sami was provoking me by referring to my nationality and being derogatory. Herman could see I was getting upset and was going to lose my temper, so he took me to the checkouts.
56. I walked off towards the checkouts with Herman while Joseph and Nana restrained Sami. When I was at the checkouts I explained to Herman what had happened but Sami came running at me again and kicked me in the leg. This was hard enough to hurt me and I was bruised afterwards.
57. Herman tried to restrain Sami and I stepped back as Nana and Joseph also intervened again. I then went upstairs with Herman and Martin Kelly also followed us from behind.
58. As I was explaining to Herman upstairs about what had just happened and that I wanted to go home, Sami came running into the canteen and tried to attack me for a third time. However, Herman forced Sami out of the canteen. Sami started to scream that he had phoned the police and that I should go out side and fight him and that he would kill me.
59. Herman initially said that I should go back to work and that he would promise to keep Sami away from me. Herman had only a couple of hours left to complete the work that night and this seemed to be his priority.
60. I told Herman that Sami was not going to leave me alone and that I wanted to go home. I asked him to escort me out of the store. Herman and Martin and I went back downstairs. I felt threatened by Sami. I told Herman that I needed 20 minutes to get home and not to let Sami follow me.
61. I walked home very upset and scared that morning. I didn’t know if Sami would come after me. Still to this day I worry about encountering Sami.
62. In the process that followed, I accepted from the start that I struck Sami. I regretted that this happened and I remain sorry about it, but I believe that I reacted in a physical and instinctive way to the threat I perceived. I did not have time to think through what was happening. I have thought about this incident a lot. It was a simple reflex that happened in a split second.
Events immediately after the incident with Sami
63. After the incident on 14 February I arrived home at around 6am. I was not surprised that Herman had asked me to return to work as the store usually ignored this kind of incident. Looking back over the years I worked for Sainsbury’s, many times colleagues argued with each other and swore at each other, sometimes even walking out and quitting their jobs. They would then return to work as if nothing had happened.
64. Another example was the situation with Sami and Andrew Barber. Andrew was working one Sunday when Jane Palmer was running the night shift and Jane had asked Andrew to perform a task. Andrew refused because he was busy and Jane became upset. When Sami realised that Andrew had upset Jane he became very angry. I told him to calm down but he went to confront Andrew on the same Fresh foods aisle where he attacked me. I saw him attack Andrew from behind. Andrew had to fight Sami off but Sami would not stop so I and other colleagues at the time had to restrain Sami. The incident was not taken further.
65. I was therefore not surprised that Herman was phoning me to ask me to come back but the thought, however, at the time of working alongside Sami, and the thought of everybody finding out that I had “grassed” for theft gave me a sick feeling inside.
66. I decided to contact my union on Monday morning and not to return back to work until I had spoken to them. However I was due back at work that night. On Sunday afternoon Herman phoned me to ask me if I would return to work. I told him “no”. Herman reassured me that if I returned back to work then he would keep Sami away from me. Herman did not tell me that Sami was or would be suspended. I told Herman that I would not return and that I would be contacting my union in the morning. Herman told me that it was my choice and that he would then write a statement explaining what had happened.
67. I believe that if I had returned to work that night Herman would not had written his statement (which he did at some point: this is at pages 83 – 84) and would have buried the issue, just as the issue was buried when Sami had attacked Andrew Barber.
68. I phoned Brenda Anderson on Sunday 14 February and introduced myself. I had been given Brenda’s number by Layla and I knew that Brenda worked Sundays. She seemed to know who I was. I asked if she had enough evidence on Sami and Jane, and I believed that Sami knew I was the grass. She said that she was no longer working in the district and that she had interviewed Sami and Jane weeks ago and could not arrest them due to lack of evidence.
69. I think that it would not have taken Sami much time to put two and two together after his interview with Brenda Anderson. I had worked with him for some time and it was only two weeks after he was interviewed about the thefts that he became aggressive towards me. I do not believe that this was just a coincidence. I was the only one who was following him and asking John Collins of his whereabouts. I knew of his thefts and I believe he knew that I was not happy with the situation.
My grievance and the investigation
70. On Tuesday 16 February 2010 I submitted a grievance about the incident (pages 86 - 87). I was advised by my union that this was the best thing for me to do to stop Sami getting away with this kind of behaviour. At this stage, I did not consider myself to have been suspended. I was not due back at work until the following Friday. My grievance set out the main details of the incident on 14 February 2010, although I did not go into the background around the thefts. I was confident that Sami’s behaviour as the aggressor and instigator of the incident would be shown on CCTV so I asked for this to be looked at.
71. However, after submitting my grievance, I received a letter dated 16 February (see page 85), calling me to an investigatory meeting. The letter made no reference to any suspension.
72. I note from these proceedings that Sami was interviewed at an investigatory meeting on 18 February 2010 by Justin Dillon (see pages 90 – 96). In this meeting, amongst other things, he seems to have admitted calling me a “Turkish c**t” but claimed he didn’t say this “to be racist.”.
73. I attended the first investigation meeting on Friday 19 February 2010 with Jason Amarasekera, the Customer Services Manager in the Penge store, and Lauren Burnett from HR. There are some typed notes of the meeting, which lasted around an hour and a half with a break in the middle (see Sainsbury’s typed notes at pages 102 - 106).
74. The notes that were taken in this meeting are not an accurate reflection of the meeting. Lauren at times seemed to write down only fragments of what I had said. I do not accept the first few lines: “JA, Hi Freddie, we are here to conduct a fact finding investigation. Do you know why you’re here? FM, Yes I hit a member of staff.” I did not say this. I also did not say that I did not feel the need to get the union involved at the moment. I had, on the contrary, made it clear at the end of my grievance that I was involving the union (see page 87). I do agree that the following points were covered in the meeting.
75. I explained that there had been a disagreement about TalkBack and that I had said that I would take it up with Justin Dillon. Sami had said: 'what's your problem, c**t' and had continued to be verbally abusive. I pointed out that other employees, Nana, Joseph, Kadeisha and Edita were there and so was Herman. I said that Sami’s leg broke loose and my reaction was to punch. I told them that Sami called me a” Turkish c**t” and was trying to provoke me. I also said that, once I threw the punch, I knew I had done something wrong and I didn't have to do that. but the rest of what I said following this was not written down and recorded. I then said that I had done something wrong and but I also explained that in the circumstances, I had no choice. I explained that it was the early hours of the morning, I was tired and I was cold after working on refrigeration all night and that I had a cold. I explained that I could have kept my arms by my side and let Sami attack me but I explained that I didn’t because my reflex was to protect myself. I was explaining that everybody has a choice to do right or wrong, but when you are not prepared and taken of guard that choice is taken away from you. I tried explaining to them that I could had been a passive victim and done nothing, but I didn’t have time to register what was going on and even though I protected myself, I still felt like a victim anyway. Lauren wrote down only fragments of the conversation which I believe is clear in her writing.
76. I explained that I had got Brenda Anderson into the store and made allegations of theft against Jayne and Sami and said that John Collins was complicit in this.
77. Jason Amarasekera asked me if I accepted that I had hit Sami, but in response to provocation, that Sami had kicked me or went to kick me. I said that I shouldn't have thrown a punch, but I wasn't the police and couldn't be trained on how to deal with a situation like that. I said that I had walked away from the incident. I asked Jason to look at the CCTV footage, which I had also referred to in my grievance. Lauren Burnett then said that there were images (which I did not see at the time, have never seen and which have not been produced in these proceedings) but I was behind a pillar. I also denied that I had called Sami a “knob head” before the incident.
78. Jason told me that Justin Dillon had seen a bruise on Sami and also said that Sami had claimed that this wasn't the first time that I had kicked someone. I denied this. Sami hadn’t accused me of kicking him, let alone anyone else.
79. The question of suspension was raised (page 105). When they mentioned this I was surprised and asked “Was I suspended?” They said I should have received a letter. I said I wouldn’t want anyone thinking I had gone AWOL since Sunday morning. I pointed out that I had been asked by Herman to come back to work. I believe that I may have suggested that my grievance had started this all off, which is not noted, and Lauren then stated: “To be honest we would have caught wind of the situation and it would have potentially lead to this situation anyway.”
80. I was told that the matter would go forward to a disciplinary hearing on 26 February 2010 (see letter at page 121). I was given a copy of the suspension letter at page 122, which I signed. The only reason I had signed this was because Lauren told me that I would not get paid for my shift on Saturday as I had walked out, and I would not get paid for my shift on Sunday as I did not come to work or phone the store to call in sick. I was told that they would not be able to pay me unless I signed the form. I explained to them that I couldn’t because I had not been suspended but then Lauren reassured me that it was only for Val, who works in the cash office, and as long as I signed it then Val would pay me for the time that I was off. Lauren also reassured me that this was not a big deal and told me to sign it and that way I would not get into trouble for being AWOL from the store. I told Lauren that I was not suspended, but I would accept that I was suspended from Friday 19 February 2010. Lauren explained that this wasn’t good enough and Val would not be able to pay me. Lauren pressured me into signing the form and kept reassuring me that the only person it would benefit was myself as it would enable me to get paid. I therefore signed the form. I only worked 3 days a week and could not afford to lose my wages.
81. On the morning of my attack, I told Herman that he should be suspending people, and not be asking them to go back to work, but that was the only mention of suspension that morning. I explained all of this in my investigation meeting. I later explained this in my appeal meeting (see page 206).
82. Laura, Jason and I discussed contacting Brenda Anderson. Lauren and Jason seemed disappointed in me. We discussed the criminal activity and the breaking of other colleagues’ confidentiality. Both Lauren and Jason asked me why I had not come to them. I explained to Lauren that she seemed to have become good friends with Sami and I noticed that she had received lifts home from him when she only lived 100 yards from the store. I said that I was disappointed in all the Penge store management and explained the reasons for not approaching them. She did not make notes of this part of the conversation.
The disciplinary hearing and my dismissal
83. I have become aware in these proceedings that Sami had a disciplinary hearing on 24 February 2010 with Paul Miller, the Store Manager, and was dismissed for using inappropriate language and violence (see pages 124 – 126). Sami admitted that he came to within 6 inches of my face.
84. I received no witness statements or other evidence in advance of my disciplinary hearing. I did not know what had happened in the investigation and disciplinary proceedings concerning Sami.
85. I exchanged several emails with Lauren Burnett in the lead up to the hearing. I questioned what Sami had said about the incident and was told he had not written a statement (see email 3 March 2010 at page 131). I now know that he had given accounts in two meetings, which I was not provided with.
86. I made several corrections to the original minutes of the investigation meeting which I was unhappy with (see pages 139, 150 to 152). These were not the only corrections I had. But I sent these corrections to Lauren as examples of errors. I was trying to work on my own case at this point. I suggested that we sit down and go through the investigation meeting minutes together, as there were other points, as noted in this statement, but this did not happen. The notes at page 102 – 106 are the corrected version but still do not accurately reflect everything discussed at that first meeting.
87. I was invited to the disciplinary hearing with Justin Dillon, Duty Manager, and Rosie German from HR on 4 March 2010 (see page 157).
88. I proceeded without representation because of difficulties trying to obtain a union representative.
89. Sainsbury’s typed notes of the meeting are at pages 170 – 173. Justin and Rose seemed to listen to what I had said but, as in the last meeting, Rose did not write everything down. For example, the notes in this meeting jump around, such as on page 172: “FM: Sami always has excuses, his flat mate looses key and he has to go home when he likes. Mark was sitting here one night and I asked him where’s Sami. Mark said he was on frozen and I said no he is not. I went outside and saw him drive off”. Justin’s response to this in the notes is “JD: We checked the cameras it was not a Playstation 3” I believe that this is an example of parts of the conversation not being recorded in the notes, as according to the notes to this point, I had not mentioned a Playstation 3 yet I clearly had done for Justin to have been talking about one.
90. In the meeting I disputed the minutes from the last meeting and said there was a lot wrong with them. I explained that it had been not a fight, but an attack by Sami. I referred to Sami’s tendency for racist and other offensive verbal abuse and the repeated the allegations of theft.
91. I outlined how Sami had kicked out at me and as he came towards me, I had hit out at him, striking him near his eye and nose. I said I did not understand how he could have had a bruise on his forehead. I pointed out that Sami had called me a “Turkish c**t” and had kicked me after the initial altercation had been broken up.
92. Justin said something like “So, for whatever reason you hit Sami”. He asked why I had not just walked away and gone upstairs after I had hit out at Sami. I explained that I had acted in self-defence. I said that I thought Sami knew that I had reported Sami’s stealing to Sainsbury's.
93. Justin asked me (page 172) why I hadn't walked away at the start, when I had challenged Sami over the TalkBack issue. I said that I had, but that Sami had followed me. Justin also implied that I should have kept in mind Sami’s “history” of assaulting Andrew Barber in my dealings with Sami. In other words, I should have accommodated Sami because of his history of violence.
94. Justin also asked me what I would have done differently. I said that if I hadn't punched Sami, Sami would have kicked me, so in the same situation with Sami coming for me, I would do it again. It was self-defence. I had already expressed regret about what had happened.
95. Justin asked me how I would feel if I was back and working with Sami. I said that I would have been all right with that. I stressed in conclusion that this hadn't been a fight. I had been provoked and had just defended myself.
96. Justin then adjourned the hearing for around for 10 minutes. He then read an extract from the Sainsbury’s Staff Handbook which said that assault or attack on a colleague was gross misconduct and so he dismissed me. I said that I did not have a fight - when I had walked away, Sami had come after me and kicked me. Justin said that I had already hit Sami.
97. Justin had also stated in the meeting that he had seen the cameras on the morning of my attack, although this is not in the notes. He said that he had seen me behind a pillar and that he could see Sami run towards me and kick me. He could not see the actual contact but said that it looked like Sami was the aggressor. I have seen none of this CCTV. Sainsbury’s have said to my solicitors that it has not been kept, despite my requests in the internal proceedings onwards. I believe that these tapes may have exonerated me.
98. My dismissal was confirmed in a letter dated 5 March (see page 179), the reason being “a fight between colleagues”.
99. I appealed against my dismissal in an email to Paul Miller dated 4 March 2010 (see pages 179c – 179d). I said briefly that I had been attacked in his store and did my best to defend myself. I wanted to discuss with Paul Miller that I had been attacked and I said that I believed that Sami was under the influence of alcohol, which I did given how extreme his behaviour had been. I had stated from the start that I believed Sami was under the influence of drugs and I firmly believe that drugs or alcohol was affecting him on 14 February when he attacked me. I also wanted to discuss why my grievance had not been dealt with, seeing as this was put in before I was told that I had been suspended.
100. In the lead up to the appeal, Lauren emailed me about my grievance, which had not been dealt with because of the disciplinary issues (see page 180).
101. I also emailed Paul Miller on 10 March to ask that the CCTV footage be preserved (page 184). I continued to believe that the actual footage of what had happened, or at least some of what had happened, would show who the aggressor was.
102. On 12 March 2010 I confirmed my appeal date to Lauren by email (see page 188). I also said that I believed that my grievance of 16 February had started the whole investigation. Lauren disputed this in her reply on 13 March (see page 190). I replied to her on 13 March (see page 190) pointing out that the investigation only appeared to have started when I put in the grievance against Sami. I disputed that I had been suspended by Herman and pointed out his call to me to see if I was coming into work.
103. I have been made aware in these Tribunal proceedings that Sami also appealed against his dismissal. His appeal was heard by an external manager, Mark Becker, the Crystal Palace Store Manager. The typed notes of the meeting are at pages 196 – 201. It is clear that Sainsbury’s believed that Sami had racially abused me and that he was “face to face” and swearing at me (see page 199) and that formed the basis of Sami’s dismissal. Mr Becker found that Sami had “provoked” me (see page 200).
104. The appeal against my dismissal was heard on 19 March 2010 with Paul Miller, and Margaret Southwell, HR Manager at Crystal Palace.
105. The typed notes are at pages 202 – 209. The meeting lasted just over 2 hours, although this included a long adjournment for over 35 minutes.
106. In the meeting I said that there had been a racial element to the altercation with Sami. I also raised a point about the timing of Sami’s suspension. I said that I had created the situation when I had put in a grievance against Sami. I also said I believed that Sami had found out about the allegations of stealing. Paul Miller claimed that only he and Lauren Burnett had known about the allegations I had made to Brenda. I raised general allegations of wrongdoing by Sami which I said had not been picked up and said that Sami had been allowed to be a bully, so “I had to deal with him”. By this I meant that I had reported the thefts but Paul stated that I had dealt with Sami in the wrong way.
107. After an adjournment, I continued and explained that my reaction when faced with Sami’s aggression was an instant reaction for which I couldn't apologise, as I had to defend myself. I still regretted that this had happened, but, placed in the situation Sami had put me in, I couldn’t see what else I could have done.
108. After a 37 minute adjournment, Paul Miller delivered his conclusions on my appeal:
(a) He said he didn't believe it wasn't a fight, because he saw the bruise on Sami’s head;
(b) He claimed that the situation was not because of the allegations of theft because only he and Lauren Burnett knew about those;
109. At about this point, I explained that I had told two colleagues about the investigation (i.e. Abdi and Sharon, as I explained above), and that Abdi had seen Sami carrying something out of the store, although as I stated above the meeting notes are not accurate (see page 206). I did not name the colleagues and explained that I had not wanted them to jeopardise Brenda Anderson's investigation by raising what they had seen. Paul seemed to accept my explanation, although he suggested that I had broken my own confidentiality by discussing the situation.
110. Paul said that the fact that, when I struck Sami, I was reacting instantly to potentially being kicked didn't make it right. He said that he had a duty of care to other colleagues and that I might misread a future situation. He concluded that the company handbook stated that this was an assault on another colleague and that was gross misconduct. He upheld the decision to dismiss. He said he was concerned at my assertion that I would have done the same in the same situation.
111. I had asked Paul Miller at the outset if I could ask any questions during the meeting. He had replied that I could but he may not answer but would take notes and answer after I had made my appeal, which seemed very awkward.
112. I had asked Paul Miller many questions during my opening statement (see pages 202 – 203) and he replied “no comment” to each, which was not recorded in the meeting minutes. I note that the point at which he did interject and respond (see page 203) was when I had explained about the issues of trust I had in the store. He was quite defensive and tried to suggest that this was not relevant, but in my view it was important background information about the situation with Sami.
113. I received a letter in the post dated 20 March 2010 confirming my dismissal (see page 231). This letter explained to me that “This was the final stage of our disciplinary and appeals procedure and there is therefore no further process for appeal against this outcome”.
114. I didn’t fully understand this as I had still not had my grievance dealt with. Weeks went by and I had not heard anything from Sainsbury’s about my grievance. It wasn’t until after I had submitted a claim to the Employment Tribunal on 24 March 2010, that I received a bundle of letters through the post from Sainsbury‘s (see my email of 9 April 2010 responding to Sainsbury’s, page 235). I did not receive a response to my email dated 9 April.
115. The assault on me by Sami, and the subsequent disciplinary process, which felt very unjust to me, has made me depressed. I feel that I have lost a family, ”Sainsburys,” which I felt strongly enough about to return to after working for another employer and who I was trying to help by reporting theft. I have spent a year of my life trying to find work and I have had to borrow and scrape by the last year from my partner which makes me feel useless and humiliated. I have never had to borrow money of anybody before. I live with my mother who has not received any rent from me for the last year and even though my loved ones are very understanding and caring, I have a daily sense of guilt that I cannot support my own family. I have tried so hard looking for work and if Sainsburys had only answered G4S when they were vetting me I could have gained employment a lot sooner. I feel very angry a lot of the time and have put on around 3 stone from eating due to my depression.
What I have done after my dismissal to try and find new work.
116. Since my dismissal, I have dedicated my time to trying to make a new career for myself in the security field. I did not think I would find a job in the retail sector after being fired for gross misconduct.
117. I received Job Seekers' Allowance from 23 March 2010 until 23 September 2010 at £64.30 a week until 14 April 2010 and £65.45 a week thereafter.
118. I went on an SIA course and passed. I then worked as a steward with Wise Security for a few months and this gave me the funds to pay for my SIA License. I have applied for over one hundred Security jobs but there is a lot of competition.
119. I went for an interview with G4S in May 2010 and was offered a security job, but I was told that Sainsbury’s had refused to reply to them when I was being vetted. Sainsbury’s failure to reply lost me the job before I even got started.
120. I passed the SIA course on 2 June 2010. On 14 August 2010, I obtained temporary employment as an event security steward. I have now found part-time work working at ******* **** since about 7 November 2010 for 13 hours a week at £8 per hour. I earn on average £416 a month but have the opportunity to cover the other security guards’ holiday and sickness. I am working on the backdoor as a security guard and my job involves searching the staff and entertainers entering and exiting the building, and I am responsible for locking up the building at the end of the night.
121. I am now very happy working for my new employer and in time I hope to be offered a full-time position.
122. My final pay from Sainsbury’s was as set out at page 187. I lost out on a bonus because I had worked nearly the whole year and the bonus was awarded in April. I was one of the people who helped achieve this bonus by doing my job to the standard that I did, and if the Tribunal agrees with me that I was dismissed unfairly, I would like this bonus rewarded back to me.