A high street shop assistant has won more than £12,000 after her boss berated her about wearing ‘horrid orange’ Nike trainers to work. New Look worker Samantha Jackson felt bullied after line manager Kirsty Sherburn said her footwear was inappropriate and she should be wearing ‘more fashionable’ brands like Converse or Vans.
Ms Jackson – who said she needed to wear more comfortable trainers to help deal with a knee condition – eventually resigned. But an employment tribunal ruled Mrs Sherburn had no reason to criticize her employee’s trainers and had therefore unfairly dismissed her, leading her to be awarded compensation.
The Sheffield panel heard Ms Jackson worked at the Crystal Peaks store in the city as a sales assistant from September 2003 until April 2019. Ms Jackson suffered from hyperflexion in her knee as a result of a fall at college in January 2018, so had to wear trainers with extra support to ease her pain.
In August 2018 there was an incident on the shop floor between Ms Jackson and her manager Mrs Sherburn. Ms Jackson submitted a grievance about this in November 2018, in which she said: “At the end of one particular day Kirsty became extremely critical of the time that I had spent serving a customer at a till at close of business.
“There were in fact problems with the operation of the till although Kirsty took no time to discover this – she simply berated me about this. At the same time as telling me off about the till Kirsty also berated me about what she described as inappropriate footwear New Look has no set or rigid policy with regard to footwear and as Kirsty and New Look were aware I have a condition with my knee – hyperflexion.
“This is a painful condition and I need shoes that are sufficiently comfortable to ensure that I can stand all day on the shop floor. The footwear in this case was relatively new Nike trainers. All workers on the shop floor also wear their own footwear ( shoes are not issued by New Look) and all are either trainers or other fashion shoes and none are or were better than those I was wearing at the time.
“During the incident Kirsty told me in strident terms that my footwear was inappropriate for work and that she didn’t expect to see me in those or the ‘horrid orange things’ again. She was wound up and highly heated during this exchange.”
She added she was ‘made to feel incompetent and treated like a naughty child’. She complained that the incident was not dealt with away from the shop floor, away from customers. She elaborated: “As I turned to walk away Kirsty said, ‘and by the way you are not to wear those trainers again to work’.
“They were in her opinion unsightly and not appropriate for work, sports running trainers were not to be worn and if I felt the need to wear similar footwear they would need to be Converse or Vans etc that are more fashionable. None of these brands of footwear provide the same level of cushioning as the Nike trainers I have been recommended to wear.”
Mrs Sherburn told the grievance investigation she saw Ms Jackson had spent around 45 minutes on dealing with one item for a customer, which resulted in a long queue building up. She said she spoke to Ms Jackson, who told her ‘the till screen kept flickering’ so she asked her if she needed some refresher training.
Mrs Sherburn said: “This wasn’t a heated conversation and I didn’t think it was significant. I noticed Sam’s trainers were really mucky. I told her something like, ‘you can’t wear those Sam, they’re too dirty ‘. I’m not bothered about staff wearing branded shoes, which some managers mind, but hers were just too mucky.
“She would have been okay wearing them in delivery, but not on the shop floor where staff need to be presentable. They were scruffy and looked like they needed a wash.”
While her grievance was dismissed, the tribunal found that there was no reason for Mrs Sherburn to criticize Ms Jackson’s footwear on that day. Employment Judge Jonathan Brain said:”We find that [Ms Jackson’s] training shoes worn that day were not dirty.
“There was no evidence that there was a history of [Ms Jackson] turning up for work in dirty footwear or inappropriate clothing. Had she done so, we are confident that this would have been picked up. We accept that Mrs Sherburn unreasonably upbraided [Ms Jackson] upon the day of the till and trainers incident about the state of her footwear and find that she did so in a fit of pique or temper.
“This is because she was displeased with [Ms Jackson] about the length of time taken to process the transaction and the disruption that this caused to her busy day.”
The tribunal heard Ms Jackson went on sick leave with work related stress as a result of this incident, shortly before filing her grievance. She did not return to work. In January 2019 the grievance was dismissed and she was invited to a mediation meeting which the tribunal found was not conducted in a reasonable manner as there was ‘no real attempt to mediate’.
In April 2019, Ms Jackson resigned. In her resignation letter she complained about not being paid the full sick pay owed to her. The tribunal found the calculations made by New Look were wrong and this was one of the reasons – as well as the ’till and trainers incident’ and the handling of her grievance – for her resignation.
The tribunal ruled these failures by New Look amounted to a breach of trsut and confidence, causing unfair dismissal. Judge Brain concluded: “It is our judgment that Kirsty Sherburn’s conduct upon the day of the till and trainers’ incident breached the implied term of trust and confidence… there was no reasonable and proper cause for this discussion to take place in a public area.
“There was also no reasonable and proper cause to rebuke [Ms Jackson] about the condition of her footwear, much less to do so in a public area. Objectively, Kirsty Sherburn’s conduct that day was likely to seriously damage trust and confidence. There can be no reasonable and proper reason for a store manager to treat a junior employee in this manner.”
She was awarded £12,138.40 in compensation for unfair dismissal.