Asda checkout worker who was kneed in the backside wins sex discrimination case

An Asda checkout worker who was kicked up the backside by a ‘smirking’ female colleague has won his sex discrimination case after he argued a man ‘would have been sacked on the spot’.

A tribunal heard that work colleagues Choon Seng Gho and Mercy Asante ‘joked and laughed’ but were ‘never close’ while working together at the store in Croydon.

But things got out of hand after Ms Asante ‘humiliated’ him when she kicked him up the backside and walked away laughing, the hearing was told.

On another occasion, she kneed him in the backside, forcing him to see his GP. 

In their initial investigation of the claims, Asda bosses said the co-workers had a  ‘very playful/banter relationship’.

But Mr Goh argued it had not been banter but ‘bullying’ or ‘harassment’ – and reiterated his complaint was of sex discrimination. 

Now Mr Goh is in line to receive compensation after a judge ruled Asda’s investigation had been ‘seriously flawed’ and the supermarket had discriminated against him on the grounds of his gender.

Bosses took months to start investigating his claims before eventually finding the woman who booted him from behind, Mercy Asante, had ‘no case to answer’, the hearing was told.

Mr Goh had started working at a Croydon branch of the supermarket in December 2010.

The tribunal heard that while at his checkout in January 2019, Ms Asante ‘kicked him in the backside’, although Mr Goh didn’t report it at the time as he thought it was ‘a one off’.

However, in February Ms Asante then ‘kneed’ him in the backside with enough force that he ‘jolted forward’ and later needed to see his GP.

The tribunal, held in south London, heard this left him feeling ‘angry and humiliated’ and so he reported the ‘unacceptable’ incident to his manager.

In a statement, Mr Goh wrote: ‘I feel that Mercy’s behaviour was inappropriate and my concern is that she might be doing this to other colleagues and [could] cause harm.’

A colleague reported the incident, saying Ms Asante’s knee had caused ‘immediate distress and injury’ to a ‘shocked’ Mr Goh.

However, the panel heard that following Mr Goh’s complaint ‘nothing was done’ by his manager over the following months.

When Mr Goh overheard colleagues in June talking about him being kicked, he was ‘upset’ and approached the store manager, who told him to re-submit his complaint.

That month he sent an ‘identical’ copy of his February complaint, which caused a ‘fact-finding’ process to be initiated.

When interviewed by managers and asked about his relationship with Ms Asante, Mr Goh said they ‘joked and laughed’ but were ‘never close’.

He recounted the first incident where Ms Asante ‘smirked’ at him as as she walked away from kicking his backside and said he had ‘no idea’ why she had done it.

Telling bosses about being kneed, he said it had been ‘eight out of 10’ on the pain scale and he’d had problems with his bowel since.

Ms Asante was interviewed by a different manager and said she did not remember hitting Mr Goh, claiming the pair ‘always hit and punch each other as a joke’.

She was told she ‘shouldn’t take these jokes to another level and be aggressive’.

After three ‘fact-finding’ meetings had taken place with Mr Goh, Ms Asante and another witness, the tribunal ruled it was ‘entirely unclear’ who was in charge of the investigation.

At a mediation hearing that December, Ms Asante then claimed Mr Goh had touched her breasts – something he strongly refuted and said was ‘completely untrue’.

The tribunal heard that following this he took out a formal grievance, saying he should be able to attend work ‘free of inappropriate conduct, violence, discriminatory bullying behaviour and offensive language, gestures or conduct’.

Mr Goh was ‘furious’ it had taken nearly a year for a ‘serious complaint’ to be acknowledged and addressed, it was heard.

At a formal grievance meeting he claimed the matter would have been dealt with quicker ‘had he not been male’ – and had a man done what was alleged they would have been ‘sacked on the spot’.

After more meetings, Ms Asante was issued with disciplinary counselling and it was decided she had ‘no case to answer’.

The investigation concluded Ms Asante had a ‘very playful/banter relationship’ with Mr Goh and said of their investigation that ‘gender had not come into it’.

In May 2020, Mr Goh appealed against the rejection of his grievance.

He said the incidents had not been ‘banter’ and also said Ms Asante had ‘groped his private parts’, but he had been too embarrassed to mention it previously.

However, he was told his appeal grounds ‘were not clear’ and he had to re-submit them – something the tribunal found was unnecessary because his reasons were ‘clearly articulated’.

At the appeal hearing, Mr Goh argued it had not been banter but ‘bullying’ or ‘harassment’ – and reiterated his complaint was of sex discrimination.

He suggested that if ‘genders had been reversed’ it would have been dealt with differently, but his appeal was rejected.

It was then he launched legal proceedings against Asda.

The tribunal panel ruled the sex of the perpetrator was a ‘relevant circumstance’.

Addressing Asda’s handling of his complaint, Employment Judge Stephen Heath said: ‘We have little difficulty accepting Mr Goh’s complaints were not taken seriously.

‘We further accept Asda subjected the claimant to a detriment by not taking his complaint seriously in this time period.

‘This was not simply an unjustified sense of grievance, Mr Goh was entitled to feel that his welfare and safety were not being accorded any significance by his employer.’

Ruling the grievance had been ‘mismanaged’, he added: ‘There was no proper attempt to grapple with the core part of his complaint, namely, that had he been a woman his complaints would have been dealt with differently.’

‘We conclude that the appeal hearing and its outcome was mismanaged. The focus was not on addressing his complaints… the outcome was significantly flawed in that it did not address a crucial element of the complaint.’

The tribunal therefore found Asda had not taken the assaults seriously, delayed the investigation, not interviewed all relevant people and mismanaged the grievance and appeal processes.

He won claims of direct sex discrimination.

A remedy hearing to decide on how much compensation he receives will take place at a later date.