Sainsbury’s employee ‘unfairly dismissed’ over headphones

The Employment Tribunal has ruled that Sainsbury’s acted unfairly when it dismissed one of its employees for persistently wearing headphones while working.

Victor Onyike had worked for the retailer for several years as a commercial assistant in the delivery yard. It was classified as a high-risk area because of the number of lorries crossing and reversing to unload.

There were warning signs alerting staff to the potential dangers and advising caution, but there was no specific mention of headphones.

In March 2017, a manager saw Mr Onyike wearing headphones and told him take them off. A week later, a deputy manager saw that he was still wearing them.

Mr Onyike was asked to attend a meeting to address health and safety issues. He admitted wearing the headphones but said there was no hazard because they were turned off.

There were further disciplinary meetings over the next few weeks. At one he apologised and said he would not wear them again. However, at a later meeting, he said he didn’t think there was any danger as he had a high visibility jacket that would enable drivers to see him.

He was later sacked. He brought a claim of unfair dismissal and the Employment Tribunal ruled in his favour.

Employment Judge Hall-Smith said: “I did not consider that in all the circumstances the claimant’s conduct, albeit involving an element of risk, involved a serious failure to follow company health and safety procedures.

“The claimant understood the importance of wearing a high viz jacket but the wearing of
headphones had not been identified by the Respondent (Sainsbury’s) as a health and safety issue.

“I have concluded that although the claimant’s conduct in my judgment justified a high level of sanction, such as a final written warning, in all the circumstances the sanction of dismissal did not amount to one which a reasonable employer would have awarded.”

However, the judge also said that Mr Onyike was 80% responsible for his dismissal and so his compensation should be reduced accordingly when it was decided at a separate hearing.

Please contact Toni Hudson if you would like more information about the issues raised in this article or any aspect of employment law.