A former M&S worker who was fired after she went off sick for confronting a customer without a mask during the pandemic has won her case of unfair dismissal. Deborah Daisy, a customer service assistant for the high street store, spent time off work after being verbally abused by a shopper who refused to put on a mask back in November 2020.
An employment tribunal heard that the situation had an impact on her mental health and brought back memories of previous incidents, including a robbery and run-in with a shoplifter. She then went on five months of sick leave due to "severe anxiety and depression". 2
Mrs Daisy criticised the company's "lack of action" over the incidents and said that she was left feeling "vulnerable" the in store, Teesside Live reports. She was later dismissed by the retailer after six months on the basis of "incapacity", with bosses concluding that there were no measures that could be taken to support her return to work.
Mrs Daisy said she had not received training in dealing with crime, the panel was told. She has now won her claim, with the panel concluding she should have been told the outcome of investigations into her personal safety issues and the company had hidden behind the guise of GDPR constraints.
A judge said M&S had carried out "not even close to a reasonable investigation". The tribunal heard evidence from several parties, including a manager at the Teesside Park store who carried out return to work meetings with Mrs Daisy between February and May 2021.
"Loyal and hardworking" Mrs Daisy joined the firm in April 2015 and worked part-time as a customer assistant at Oatlands Harrogate Simply Food. The hearing, held in Leeds, was told she went off work due to high levels of anxiety and severe depression in January 2021, after she confronted a shopper who refused to wear a mask.
During an ill-health meeting the following month, the panel heard Mrs Daisy's anxiety and depression were caused by the pandemic in general but referred to that specific incident. Adjustments were discussed to facilitate her coming back. The tribunal was told two occupational health reports were made and she was deemed unfit to work, with her return unlikely in the foreseeable future.
The panel heard: "Her history would suggest that she could be revisiting distressing thoughts and feelings from the armed robbery or other incidents where she felt under threat. This is likely to be impacting on why she doesn’t currently feel safe in work despite strict Covid preventions measures in place.
"It is likely the anxiety around Covid safety is exacerbated by some unresolved issues from the past and could include the armed robbery and issues she alluded to in the past."
The panel heard investigations were carried out by M&S into Mrs Daisy's concerns, however she was not told of the result due to "vague" GDPR reasons.
In April, Mrs Daisy was warned her continued absence could result in her being sacked if she was incapable to return to work, the tribunal was told. Matters had not improved by the following month, as the panel heard thinking about work sent her anxiety "through the roof" and she felt "vulnerable in store".
The tribunal was also told that in a meeting about her absence, Mrs Daisy said she felt M&S had not "acted and dealt with abusive customers appropriately".
"Most of the fourth consultation was taken up by [Mrs Daisy] complaining about the lack of action over the incidents she had referred to previously as happening to her at the store and making her feel vulnerable... It is clear from the content of the discussion at the fourth consultation that these are the matters that [she] is stating are preventing her from returning to work," the tribunal heard.
In June that year, she was fired, which she unsuccessfully appealed. Mrs Daisy then took M&S to the employment tribunal which found she should have been told the result of the investigations and that M&S had only shared the information with her after she was sacked.
Employment Judge Timothy Knowles concluded: "It was in my conclusion outside of the band of reasonable responses which might have been adopted by an employer acting reasonably to dismiss without sharing the findings about the issues she had raised in relation to her personal safety and engaging with [Mrs Daisy] about how her personal safety fears may be addressed in future.
"I am surprised that those matters were not explored with [her] given that [Marks and Spencer Plc] 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."
Mrs Daisy will be awarded compensation in due course. The tribunal assessed the likelihood of her dismissal in any event as 25% and therefore any compensatory award will be reduced by that percentage.
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