Night shelf-stacker dismissed after 11 years: a policy applied without discretion
A Sainsbury's employee with 11 years' service was unfairly dismissed for poor attendance, but the tribunal ruled he would have been fairly dismissed within four months, awarding no compensation.
1 min read · Last updated 18 May 2026
Case details
- #long-term-sickness
- #attendance-policy
- #protected-disclosure
- #polkey-deduction
- #mechanistic-application
Key facts
- The claimant was employed as a general assistant from 7 May 2009 until dismissal on 12 March 2020.
- The claimant made a protected disclosure on 14 May 2019 about a manager breaching the 30-minute rule for chilled goods.
- The claimant had a history of high sickness absence, exceeding triggers in every year of employment.
- The dismissal was for unsatisfactory attendance, found to be 'some other substantial reason'.
- The tribunal found the dismissal unfair because the manager applied the attendance policy mechanistically without proper discretion.
- The tribunal concluded the claimant would have been fairly dismissed within four months anyway (100% Polkey deduction).
Timeline
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Employment started
Claimant began working as a general assistant at Sainsbury's Beckton.
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Written warning for absence
Claimant received a written warning from Mr Thomas after a seven-day sickness absence.
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Sickness absence started
Claimant was absent from April to June 2019 due to stress and anxiety, partly work-related.
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Protected disclosure
Claimant told Mr Thomas that manager Baba was breaching the 30-minute rule for chilled goods, endangering food safety.
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Written warning issued
Mr Awotar issued a written warning for attendance, rejecting the claimant's work-related stress reasons.
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Final written warning
Mr Awotar issued a final written warning after a further absence for cold and flu.
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Further sickness absence
Claimant was absent from 13 October to 10 December 2019 due to stress over the final warning.
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Dismissal hearing
Mr Waliullah dismissed the claimant after a 13-minute hearing, citing unsatisfactory attendance.
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Appeal rejected
Mr Cavallero upheld the dismissal, applying the attendance policy rigidly.
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Effective date of termination
Claimant's employment ended with four weeks' notice.
The legal issue
The tribunal had to decide whether the dismissal for unsatisfactory attendance was fair, and whether it was automatically unfair because the employee had made a protected disclosure about food safety.
The outcome
The tribunal decided that the dismissal was unfair because the manager applied the attendance policy rigidly without considering the employee's explanations or exercising discretion. However, it also found that the employee would have been fairly dismissed within four months due to his persistent absence, so compensation was reduced to zero.
- The claim of automatically unfair dismissal (protected disclosure) was dismissed.
- The claim of detriment for making a protected disclosure was dismissed.
- The ordinary unfair dismissal claim succeeded, but with a 100% Polkey reduction, meaning no compensation was awarded.
Lessons & takeaways
- Employers must apply attendance policies with discretion, especially for long-serving employees, and consider explanations for absence.
- A Polkey reduction can wipe out compensation if the tribunal finds the employee would have been fairly dismissed soon anyway.
- Making a protected disclosure does not automatically protect against dismissal if the real reason is something else, like attendance.
- Litigants in person should seek advice early, especially when the respondent changes its legal argument at the last minute.
When a policy becomes a trap
This case shows how a well-intentioned attendance policy can lead to unfairness if applied without thought for the individual circumstances. The employee, a night shelf-stacker with 11 years' service, had a long history of sickness absence that exceeded the company's triggers. But when he was dismissed after a 13-minute hearing, the tribunal found the process was too rigid. The manager did not consider why the employee was off sick – including stress linked to a protected disclosure about food safety – and did not explore alternatives.
What went wrong for Sainsbury's
The tribunal criticised the mechanistic application of the attendance policy. The manager who dismissed the employee did not properly weigh the employee's length of service, the reasons for his absences, or the possibility of a further adjustment period. The appeal officer also applied the policy rigidly. A more flexible approach – such as allowing more time for recovery or seeking occupational health input – might have made the dismissal fair. However, the tribunal also noted that the employee's absence record was very poor, and even with a fair process, dismissal was inevitable within a few months.
Why the result matters
The case is a reminder that even when an employee has a poor attendance record, employers must still follow a fair procedure. A mechanistic application of a policy – without real consideration of the individual's circumstances – can render a dismissal unfair. But it also shows that a successful unfair dismissal claim does not always mean compensation. The 100% Polkey reduction here meant the employee received nothing, because the tribunal was satisfied he would have been dismissed anyway. For employees, this highlights the importance of engaging with the process and providing medical evidence. For employers, it underscores the need for training managers to exercise discretion and consider each case on its merits.
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