Mr R Uzor v Ishida Europe Ltd and others: 1301723/2023
EMPLOYMENT TRIBUNALS
Case No 1301723/2023
Between
Mr R UzorClaimantIshida Europe Ltd and othersRespondent
Before
Employment Judge PerryIn person for claimantMiss W Miller (instructed by counsel) for respondentDate 30 October 2024
JUDGMENT
The claimant’s application for strike out of the respondents’ responses to the complaints that it(1) indirectly discriminated against the claimant and(2) failed to make reasonable adjustments are dismissed for the reasons I gave orally. signed electronically by me JUDGMENT[1]The claim of constructive unfair dismissal is well founded and succeeds.[2]The respondent did not have actual or constructive knowledge of the claimant’s disability of anxiety and depression at the material time.[3]The claim of direct disability discrimination is not well founded and fails.[4]The claim of indirect disability discrimination is not well founded and fails.[5]The claim of failure to make reasonable adjustments is not well founded and fails.[6]A further hearing will be listed to determine remedy.
REASONS
[1]By claim form dated 28 of January 2023 the claimant brought complaints of constructive unfair dismissal, direct disability discrimination, indirect discrimination, and a failure to make reasonable adjustments. ACAS conciliation was entered on 3 December 2022 and ended on 3 January 2023.[2]The respondent accepts that at the material time the claimant was disabled by reason of depression or anxiety but the respondent disputes knowledge.[3]The claimant largely complains about his treatment in relation to the way in which a dispute about sales targets/bonus was addressed, in large part related to a refusal to allow the claimant to attend his grievance appeal meeting virtually. The claimant says that the treatment he received amounted to disability discrimination which led him to resign in circumstance which had amounted to constructive unfair dismissal.[4]The respondent’s defence is that the claimant resigned of his own volition and that their refusal to allow him to attend the meeting virtually was not an act of disability discrimination but rather a reasonable position for the respondent to take due to concerns that the claimant might have covertly recorded the grievance meeting in breach of the grievance procedure.[5]The second and third respondents are HR business partners at the first respondent and were involved in the decision not to allow him to attend the meeting virtually.[6]The Tribunal was informed that the claimant and the first respondent have previously settled a bonus dispute via ACAS.
The Hearing
[7]The Tribunal was provided with a bundle of 787 pages. The respondent also relied upon a supplemental bundle containing phone records the inclusion of this was not objected to by the claimant. A second supplemental bundle containing teams messages was also provided to the Tribunal who deemed it should be included because the messages could assist the Tribunal in determining the issues concerning alleged bullying towards the claimant and the respondent’s calculation of the claimant’s bonus. The claimant had time in the hearing to consider the documents.[8]At the commencement of the hearing the claimant requested that whilst the respondent’s witnesses were being cross examined, they should be excluded from the hearing on the basis that the Tribunal would benefit from hearing evidence from witnesses without others being present. The Tribunal reminded the claimant that the default position was one of open justice so that all parties and witnesses were entitled to be present during the hearing. The respondent resisted the application of the claimant stating that in the interest of open justice witnesses should be allowed to hear the claimants and other witnesses evidence. The Tribunal rejected the claimant’s application. The claimant had not provided cogent reasons as to why any special circumstances existed for the Tribunal to move from its default position of open justice. Simply contending the Tribunal would benefit from hearing witnesses who had given evidence not in the presence of others was insufficient in the interests of justice to deviate from its default position of an open hearing. In circumstances no witness or no party was excluded from the hearing.[9]The parties identified the relevant documents to be read prior to starting the case and the Tribunal read these documents.[10]The claimant gave evidence. The respondent called evidence from Janet Fletcher Commercial Manager and the claimant’s line manager for the claimant’s commercial projects co-ordinator role; Ryan Jones, UK General Manager/General Manager for Southern and Western Europe; Melanie Butler, HR Business Partner/HR Manager and Catherine Mylott, HR Business Partner.[11]The agreed list of issues is set out at page 107 of the bundle. It was determined to deal with liability only.[12]The Tribunal met in chambers on 24 May 2024 but due to other judicial commitments the Judge was unable to complete the written judgment until 11 October 2024. List of Issues Constructive unfair dismissal[13]Was the claimant dismissed ? Did the first respondent do the following things :- (a)The deceptive act by RJ of agreeing to a sales point of £300,000 in July/August 2021 and after the claimant had spent four months performing the role and making sales, changing the sales target on 15 December 2021 without explanation to £500,000. The claimant asserts that this change was made because by December 2021 he had already exceeded the original target of £300,000. (b)The deceptive act by RJ of agreeing terms for bonus on 15 December 2021 then a contract being sent in January 2022 which had the bonus terms that differed materially from the agreement in the e-mail 15 December 2022. (c)The refusal of any party in the organisation to address the claimants concerns in respect of the changes in sales targets and the contract; (d)The failure in May 2022 to pay the claimant the requisite bonus (e)The failure to operate a fair and impartial grievance procedure (f)The cruel and unjust treatment of the claimant by the management of the first respondent following the commencement of the grievance procedures by the claimant (g)The act of not allowing the grievance appeal meeting to be held virtually in the circumstances; this allegation is submitted to be (i)the final straw which led the claimant to resign; and/or (ii)sufficient in itself to amount to a fundamental breach of contract entitling the claimant's resign and treat himself as dismissed by the 1st respondent;[14]Did that breach the implied term of trust and confidence? The tribunal will need to decide (a)whether the first respondent behaved in a way that was calculated or likely to destroy or seriously damaged the trust and confidence between the claimant and the first respondent and whether it had reasonable proper cause for doing so;[15]The claimant does not rely on any breach of any other express or implied term of his contract of employment[16]Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.[17]Did the claimant resign in response to the breach? The tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.[18]Did the claimant affirm the contract before resigning the tribunal will need to decide whether the claimant's words or actions showed that they chose to keep the contract alive even after the breach[19]If the claimant was dismissed what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract[20]Was it potentially a fair reason? The first respondents admits that the reason was a substantial reason capable of justifying dismissal.[21]Did the first respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?[22]Direct disability discrimination (Equality Act 2010 section 13 -against all (a)Did the respondents have actual and or constructive knowledge of the claimant’s disability/disabilities and if so from when (b)The claimant is disabled by reference to anxiety and depression (c)Did the second and or third respondent do the following things :- (i)between 14 and 16 September 2022, deny the claimants request to hold the grievance appeal virtually despite the claimant previously having been told that would be possible) (d)Was that less favourable treatment (e)The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants. (f)If there was nobody in the same circumstances as the claimant the tribunal will decide whether he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was. (g)If so, was it because of disability (h)Did the respondents treatment amount to a detriment.[23]Discrimination arising from disability (Equality Act 2010 section 15) (a)Did the respondents treat the claimant unfavourably by (i)between 14 and 16 September 2022 deny the claimants request to hold the grievance appeal virtually despite the claimant previously having been told that it would be possible). (b)Did the following things arise inconsequence of the claimant’s disability (i) the claimant was unable to leave his house without great difficulty. (c)Was the unfavourable treatment because of that thing (d)Was the treatment a proportionate means of achieving a legitimate aim? (e)The Tribunal will decide in particular (i)what is the treatment an appropriate and reasonably necessary way to achieve those aims; (ii)could something less discriminatory have been done instead; (iii)how should the needs of the claimant and the respondents be balanced (f)did the respondents know or could they reasonably have been expected to know through actual and or constructive knowledge that the claimant had the[24]Indirect discrimination (Equality Act 2010 section 19) against all respondents (a)A PCP is a provision criterion practise. Did the respondents have the following PCP : (i) that's an outcome appeal take place in person (b)Did the respondents apply the PCP to the claimant (c)Did the respondent supply the PCP to persons with whom the claimant does not share the protected characteristic of disability or would it have done (d)Did the PCP put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic in that individuals with anxiety or depression are less likely to be able to leave their house without great difficulty (e)Did the PCP put the claimant at that disadvantage (f)What is the PCP proportionate means of achieving a legitimate aim (g)The tribunal will decide in particular (i)was the PCP an appropriate and reasonably necessary way to achieve those aims (ii)could something less discriminatory have been done instead (iii)how should the needs of the claimant and the respondents be balanced.[25]Reasonable adjustments (Equality Act 2010 sections 20 and 21 against all (a)Did the respondents know or could they have reasonably have been expected to know through actual and or constructive knowledge that the claimant had the (b)A PCP is a provision criterion practise. Did the respondents have the following PCPS :- (i) there's an outcome appeal take place in person (c)did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant's disability, in that the claimant was unable to leave his house without great difficulty (d)did the respondents know or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage (e)what steps could have been taken to avoid the disadvantage? The claimant suggests (i) holding the meeting virtually. (f)Was it reasonable for the respondents to have to take those steps and when? (g)Did the respondents fail to take those step Facts[26]The claimant was employed by the respondent from 4 June 2018 to his resignation on 20 of September 2022 as a commercial project coordinator. The claimant's main role was to deal with the PepsiCo client; co-ordinating projects, processing orders and visiting customers. The respondent is a company which specialises in selling weighing and packaging equipment to the food industry. The claimant was well regarded within the respondent’s business and had a reputation for being hardworking.[27]The claimant’s role as Commercial Project Co-ordinator was subject to terms and conditions (page 204 to 219). The grievance procedure (pages 220 to 224) provided both an informal and formal process of resolution and specifically excluded electronic recordings of the hearings (see page 223 paragraph 9). There was a disciplinary procedure (page 225 to 234) which included examples of gross misconduct namely serious breach of the company’s rules; unauthorised use or processing of confidential information. The sickness Absence Management Policy (page 235 – 244) provided that reasonable adjustments can be made by the respondent; “the respondent will review whether reasonable adjustments to working arrangements at the workplace will overcome the practical effects of the medical condition”.[28]The claimant was unsuccessful in his job application with the respondent for promotion to a role of technical key manager.[29]In about July 2021, the claimant was approached by Mr. Jones, UK General Manager/Regional General Manager for Southern and Western Europe and Miss. Somayeh Harvey, the Pepsi Co Account Manager, to backfill for someone who had recently been promoted. This was a role to conduct sales work for the client, Walkers. At the time the respondent was unable to offer the claimant a formal position or provide a fixed salary for the Walkers role. The respondent sought to investigate how if the claimant conducted this role he could be renumerated via a bespoke bonus package for the Walkers work. The claimant was effectively to have a hybrid role conducting some sales work for Walkers along with his commercial project coordinator role for Pepsi Co.[30]The claimant had not been in a bonus scheme before in the respondent’s employment or in any other employment and was unfamiliar as to how any bonus payment scheme would work. Mr. Jones was very familiar with bonus schemes, having been part of schemes for approximately 20 years.[31]The claimant was happy to take on the “Walkers” role as a development opportunity and enthusiastically started making contact with clients in or about July 2021. By e-mail dated 31 July 2021 (page 522) Janet Fletcher sent an email to the claimant congratulating him on being given the hybrid role of the Walkers account manager.[32]In August 2021, Miss Harvey and Mr. Jones met with the claimant to discuss how this hybrid role may be renumerated (see page 245). There was a discussion about fixing a £300,000 sales target for the year. Mr Jones did make it clear to the claimant that it was subject to Remco approval (who approve renumeration of employees) and suggested a potential 10% bonus of salary. The claimant’s understanding was that if he achieved sales above £300,000 target capped at 150% of sales, he would receive an increased payment over 10% capped at 15%. He was not fully sure how the over-achievement payment would be calculated and he asked for clarification and confirmation of the bonus in writing, but this was not immediately provided. Under cross examination the claimant conceded he knew Mr. Jones needed to liaise with REMCO to agree anything in respect of the sales target and the bonus plan and required confirmation of that with the board.[33]The claimant requested a job title change in role and responsibilities and a salary increase but was advised by the respondent that it would not agree a salary increase. Mr. Jones agreed to share the bonus breakdown but stated he needed to confirm everything with the renumeration REMCO following which he would provide the claimant with the terms in writing.[34]The Tribunal determined when the claimant commenced making contact with clients for the Walker work, there was no agreement between the claimant and the respondent that £300,000 of sales were required to earn a bonus; it was understood by the claimant that REMCO approval was required for the target and percentage of bonus.[35]The claimant did commence the hybrid role by making contact with the client in about July and this is evidenced by his oral evidence and that of Miss Harvey's interview for the claimant’s grievance (see page 339). However, sales were not generated until September 2021.[36]In September 2021, Mr. Jones told the claimant REMCO had rejected the bonus and the job title change and informed the claimant Mr. Jones needed to go back to discuss the bonus with the business.[37]In November 2021 Mr. Jones told the claimant that the request for the job title change and pay increase was rejected when he submitted it to REMCO because REMCO did not understand the role. A job description for the role had not been created. Mr. Jones stated that the situation was deflating for the claimant but that he should have faith. At this point the claimant had already achieved £300,000 of sales which Mr. Jones knew.[38]On 10 November 2021 (page 245) the claimant contacted Mr Jones requesting an update with regards to his package. The claimant stated in August 2021 when he met with Mr. Jones and Somaya he was told he would receive a 10 to 15% bonus for his machine sales, and he had exceeded his machine sales objective but he didn't know his targets. He asked whether Mr. Jones could confirm he would be getting 15% bonus backdated to August 2021 for machines he had sold as agreed.[39]On 10 November 2021 (page 245) Mr. Jones responded to the claimant stating that REMCO feedback to the requested bonus plan was that the claimant has a formal role change and base salary. He stated proposals had been put forward to REMCO but had been rejected because it was not clear what the claimant's role was. He stated that he and Mike needed to sit down and add the required detail to get this through. He stated he “honestly believed this would be done by now but I haven't been able to pin Mike down”. Mr. Jones planned to meet Mr. Cairns shortly to go through the matter and requested the claimant continue to be patient. He stated we will get it sorted and anything due will be back dated.[40]The claimant emailed Janet Fletcher 19 November 2021 (page 247) and complained, he still did not know his target in the hybrid role. He stated “I would like to understand the full picture which at the moment is only half an image I truly believe to maximise success for Walkers account objectives should be smart and given direction to success. Also I still feel like I am in limbo and have requested clarity from the business of my targets which will drive every action proceeding success and my package review.”[41]In an e-mail dated 15 December 2021 (page 266), Mr. Jones came back to the claimant stating the approval he had received from REMCO and set out the terms namely that in order to achieve a bonus, the full year target was £500,000 sales had to be achieved; namely the quarter target was £125,000. The terms stated the start of the role was September 2021 to end of the current financial year 20 March 2022. The bonus paid on target achievement was 10% base salary; the cap was 150% achievement of target (15% base salary). The bonus was payable quarterly. He ended the e-mail congratulating the claimant on a great start so far.[42]Under cross examination, the claimant agreed for the period of September 2021 to 20 of March 2022, he had worked six months. He disputed that the particulars of the role were agreed in August of 2021. Although Mr. Jones who was very experienced and knowledgeable about bonus schemes generally, believed that he made the terms of the bonus clear in this e-mail to the claimant, the Tribunal found that the communication to the claimant was unclear. Mr. Jones did not set out the difference between the annual or base salary; this was not expressly explained to the claimant. Nor did Mr. Jones set out how the bonus scheme operated namely that it was pro rata and/or discretionary nor was it clear that the claimant would only benefit from the bonus scheme whilst he remained in the role.[43]Mr. Jones informed Ms. Mylott what he wanted to include about the bonus in the contract to the claimant. However, the Tribunal found that the instructions of Mr. Jones were misunderstood by Ms. Mylott and Mr. Jones failed to check the contract prior to it being sent to the claimant. On 21 January 2022 a contract was sent to the claimant from the respondent (page 676). Ms. Mylott who prepared the contract set out in it a 10% achievement captured a maximum of 15%. The claimant received the contract but did not sign it nor were the terms imposed by the respondent on the claimant. The Tribunal found that this was a genuine error made by Kath Mylott who misunderstood Mr. Jones’s instructions and was not intended to be deceptive.[44]On 17 February 2022 the claimant queried the contract (see page 741) with Ms. Mylott who suggested a meeting, but this did not take place.[45]In February 2022 the claimant received a payment of 2.5% of his full salary. He spoke to Miss Harvey about this who informed him it was likely to be a mistake.[46]On 5 April 2022 the claimant decided to leave the hybrid role.[47]On 12 April 2022 (page 269) the claimant queried his bonus with Mr. Jones. The claimant stated he had spoken with Somayeh, and she had advised that Mr. Jones told her that based on exceeding his set targets the claimant should be expecting to receive approximately 12% earnt bonus for 2021 financial year just ended in March 2022. The claimant stated he had spoken with payroll and was advised that 2.5% was paid to his account in February. The claimant said that “it's all very confusing” He asked Mr. Jones whether he could confirm that he would be getting the rest of the agreed 12% bonus in April.[48]Mr. Jones responded that day to state that he could only give indicative numbers and that nothing was confirmed until we see the bonus file from finance due to any day. He stated one thing to remember is that 12% would be for full year achievement; the claimant was in the scheme for six months and therefore 6% would be payable pending confirmation against the bonus file. He further stated that if 2.5% has been paid to the claimant he would then be paid 3.5% to reconcile the financial year.[49]By e-mail dated 13 April 2022 (page 268) the claimant queried his bonus stating from previous conversations he understood the bonus amount was 10% and captured a maximum of 15% for the period that he had been in the role. He said he understood that the bonus amount for the period in role was 10% per the attached e-mail from Mr. Jones; he said this aligns to conversations he had with Somayeh a calculation shared amounting to £4000. He said “at no point was I informed that I would be only be eligible for half of the bonus amount despite the fact that I've exceeded my annual target in the six month. And as you're aware the goal posts keep moving in relation to my target from £300,000”.[50]On 13 April 2022 (page 267) Mr. Jones emailed the claimant. He stated that he had gone through the data and believed at some stage there has been confusion between a £500,000 full year target and £500,000 being the time in role target. He further stated the wording below from the REMCO proposal confirms the target Mr. Jones had approved was £500,000 for a full year. Based on £500,000 year one target, the claimant’s target should be £125,000 per quarter order intake. Bonus payable was 10% of base salary capped at 150% attainment (15% of salary). “Time in role target £250,000 so you have hit the cap of 150% attainment”. Mr. Jones stated, “I would assume 15% is payable less than 2.5% already received”. Mr. Jones stated the error/confusion comes from the bonus file from finance saying £500,000 for time in role; therefore £1,000,000 full year target; hence 2.5% paid for one quarter. He stated he would get this changed.[51]On 21 April 2022 (page 271) Mr. Jones noted that the claimant had achieved £335,000 in sales. As the claimant had been in the scheme for quarter three and quarter 4 that is September to March as the claimant had commenced the role prior to this he had requested that the claimant September order was also counted. He informed the claimant he stated that the claimant will reach the cap of 15% less than 2.5% already paid. He also stated if it isn't approved the claimant will be at 14.2% less 2.5% already paid. The claimant responded on 25 April 2022 to say my understanding from your breakdown is that “I'll be getting at least 14.2% if not the full 15%”. Mr. Jones replied, “Mike's response is that you can be rewarded for September sales if you carry a target for quarter 2 this adds £125,000 to your target but realises £205,000 of sales; this means you reach the cap and 15% will be paid.” He stated he would make the changes and put through for final approval.[52]On 25 May 2022 (page 264) the claimant emailed Ryan Jones copying in Janet Fletcher and Catherine Mylott about in his view the bonus discrepancy. He said that he felt that he had been misled or misinformed. He referred to the fact that he thought he should be eligible and paid for the full 15% cap to bonus amount less 2.5% paid earlier in the year and at no point was that explained to me that I would only be eligible for 7.5% until we have arrived at the point where the bonuses due to paid out this week. I've now had visibility of my pay slip. He said it was explained to me that I would receive a discretionary bonus amount of 10% if I met my targets and 15% cap bonus per their discussion if I exceed the target amounts based on the period's between September 2021 and March 2022. The understanding was the all amounts discussed including the target of £500,000 for the full year equating to £125k per quarter already counted for the fact that I was only eligible for the period September 2021 to March 2022; it was also explained to me that the other salespeople are eligible for a minimum of 20% bonus for the full year and a target of £1,000,000 in sale which was further justification from the business to half my qualifying criteria meaning I would receive 10% bonus if I met the £500,000 annual target or £125,000 quarterly amount with any overachieved sales and target amounts being reconciled at the end of the year March 2022 in line with the capped amount. He stated he had worked extremely hard and have exceeded the annual target. He stated his sales figures which total just over £700,000 for the period September 2021 to March 2022. The claimant stated he understood that the decision did not lie with Mr. Jones solely but requested that the matter be escalated because he had not had sufficient clarity.[53]The claimant entered into an informal grievance (see email dated 25 May 2022 page 264) and the claimant’s manager Miss. Fletcher undertook a fact-finding investigation. On 31 May 2022, she discussed with the claimant the bonus. She set out the claimant’s version of events and calculation of the bonus (see page 258). She made it clear to the Tribunal that she did not side with the claimant but sought to set out his understanding of the scheme. She told him she thought it was unlikely he would succeed in his informal grievance.[54]The claimant sought a decision on his informal grievance on 13 June 2022 and requested a decision by 15 of June (see page 275) or he stated he wanted to issue a formal grievance. Janet Fletcher provided the claimant with the updated documents which she had shared with Carrie and stated she could not update the claimant any further at the moment; “as soon as I have the outcome of the informal discussions, I will of course let you know”. Ms. Fletcher explained to the Tribunal she was reliant on others for information and Ms. Thomas was largely unavailable for the week commencing 13 June 2022. She was unable to reach a conclusion by the time scale indicated by the claimant, so the matter was dealt with as a formal grievance (see page 296-300) dated 21st of June 2022. Ms. Thomas acknowledged the claimant’s request for a formal grievance.[55]A grievance hearing took place on 21 June 2022 and was heard by Carrie Thomas. Prior to the grievance hearing the claimant was sent a copy of the grievance procedure. Contained within the grievance procedure under “confidentiality” it prohibited any electronic recording of the grievance. The claimant was unaware of this clause although he had been provided with the policy because he had not read the procedure fully and determined to record the hearing.[56]In the course of the grievance, Carrie Thomas commented on a number of the emails the claimant had received. The claimant accepted in the hearing he should have asked what “pro-rated” meant and accepted that he may even have misunderstood (page 309). Carrie Thomas carried out an investigation and spoke to Mr. Jones on 28 June 2022 (page 332-4) and Somayeh Harvey on 30 June 2022 (page 335-9). Somayeh Harvey stated that Mr. Jones had put the target in writing but it was not clear. She stated that the sales target was changed to a higher figure. When shown the email from Mr. Jones to the claimant Somayeh stated that for someone who understands the implication of a 6 month period the bonus would be half of 15%; 7%. She thought the claimant should get the full bonus. She did not think the claimant understood the implication of Mr. Jones email dated 15 December 2021. Mr. Jones stated (page 332) he implied the bonus was pro-rated. He felt when the claimant raised queries he clarified the bonus.[57]On 8 July 2022, Ms. Thomas delivered the grievance outcome orally and provided a written outcome at page 377. Miss Thomas concluded that Mr. Jones had communicated the terms of the bonus by an e-mail on 15 of December 2021. The e-mail stated the annual or full year target and your quarterly target and stated that the bonus would be 10% base salary payable quarterly capped at 15%. She explained that the effect was from 1 September 2021 to 20 March 2022. She found no reference or commitment to pay the claimant a bonus based on 10% or 15% of the total annual salary and Mr. Jones was clear in his communication that the bonus was effective for a fixed period of time. She found that the two quarters that the claimant was performing the additional duties correctly he received quarters payment i.e. 2.5% and when it was confirmed at year end that you over performed in the role you received the additional 2.5% for exceeding target. She stated it was clear to me that “the claimant misunderstood Ryan's e-mail and whilst I can understand how you misunderstood the e-mail I do not find it reasonable to believe that you would receive 10 to 15% of an your total annual salary. In conclusion, Carrie Thomas found no evidence to confirm the claimant was either deliberately or unintentionally misled or misinformed regarding the development opportunity or his bonus entitlement. She found no evidence to suggest that the claimant experienced a lack of support or management.[58]The formal grievance procedure provided that the respondent could investigate the grievance before holding the grievance hearing where appropriate or a grievance meeting may be held before deciding on what investigation to carry lout. If the latter approach was taken a further grievance meeting would be held with the claimant after the investigation and before a decision was reached. “If any evidence is gathered you will be provided with a copy in advance of the meeting for you to consider your response” (see paragraph 5 page 221). In breach of the grievance procedure Miss. Thomas did not provide the claimant with witness statements from witnesses so that the claimant could not consider or comment upon the evidence (of Mr. Jones and Ms. Harvey) before Miss. Thomas reached her grievance outcome on 15 of July 2022 (page 377-379). Miss. Thomas did provide detailed reasoning as to her findings and instead concluded there was a misunderstanding. The Tribunal determined that it was a significant flaw in the process that she had not provided the claimant with the witness statements or given him the opportunity to comment on the evidence. The Tribunal also found that the conduct of Miss. Thomas at the hearing was not an approach of actually listening to the claimant’s grievance but rather she reached a conclusion in the course of her discussions with the claimant. As indicated by the evidence of Miss. Butler the appropriate procedure is to listen to the grievance rather than to make a determination in the course of the hearing and it gave the impression that Carrie Thomas had predetermined the decision and was not really listening to the claimant’s case.[59]On 22 of July 2022 (page 492) the claimant appealed the outcome of his grievance alleging that he had been misled in respect of the bonus. He respected the finding that he had misunderstood the bonus scheme, but he suggested that he could not misunderstand something that was not explained to him. The claimant attached updated notes for the grievance hearing with changes made by him shown in red (see pages 301 to 326).[60]On 28 July 2022 the claimant was invited to an appeal hearing on 11 August 2022 at the meeting room at the respondent’s business. Mr Cairns, sales director EMEA was to deal with the hearing. Mr Cairns was appointed because he was a senior manager who normally performs this role and although he had oversight over bonuses generally did not have any involvement in the allegations raised by the claimant as part of his grievance. The claimant did not raise any concerns about Mr Cairns being appointed at the time.[61]On 29 July 2022 Carrie Thomas emailed the claimant stating that she had now had an opportunity to review the claimant's amended notes of the meeting stating she was shocked and had some grave concerns. She stated that she believed that a transcript had been taken from a clandestine recording of the meeting. She stated that the claimant did not inform her that he was recording nor did she give her consent. She stated that the claimant had breached privacy and her reasonable expectation of privacy. She referred to the wording of the grievance procedure which prohibited electronic recordings of any meetings or hearings conducted under the procedure. She informed the claimant that she had reported the matter to Mark Jennings, Finance Director and data protection officer and asked for her concerns to be appropriately addressed in line with the formal process.[62]On 3 August 2022 Mr Jennings wrote to inform the claimant that Miss. Thomas’s suspicions would be investigated and Mr Jennings set up an initial investigation meeting for 5 August 2022 (page 525) and later this was re-arranged for 10 August 2022. The initial investigation meeting did not take place because the claimant was signed off sick on 9 August to 28 August 2022 due to a stress related problem (page 527).[63]On 9 August 2022 (page 528 Mark Jennings) emailed the claimant stating that he was sorry to hear that the claimant was unwell, and he would speak to the claimant on his return from holiday.[64]By letter dated 10 August 2022 (page 530) the claimant’s grievance appeal with Mike Cairns for 11 August 2022 was postponed and the meeting was to be rearranged upon the claimant’s return to work.[65]By e-mail dated 17 August 2022 (page 536) the claimant contacted Melanie Butler requesting information about the evidence collected by Carrie Thomas relating to the bonus including information from Ms. Harvey and Ryan Jones. He also asked for further information as to whether anyone else in the business received a bonus at year end.[66]On19 August 2022 (page 534) Ms. Butler stated that the grievance appeal would not be a rehearing of the grievance but sought to address each of the claimant’s appeal points. As for the request of information this was stated in the summary of the outcome of the grievance hearing which was given verbally on 8 July and confirmed in the letter dated 15 July. She stated that she will seek permission to release the statements of Mr. Jones and Ms. Harvey.[67]By e-mail dated 23 August 2022 (page 533) the claimant enquired when he could expect an update and receive the information sought. The claimant referred to undue stress that the process had caused him and requested that the appeal be arranged as soon as he is well enough to work. This gave the clear impression that the claimant was not asking for the grievance appeal meeting to take place whilst he was off sick.[68]By sick note dated 24 August 2022 to 11 September 2022 (page 531) the claimant was signed off from work for a “stress related problem”.[69]On 26 August 2022 (page 532) Ms. Butler responded, attaching notes from Mr. Jones and Ms. Harvey’s interviews. She confirmed Janet Fletcher was not questioned as part of the investigation as she had spoken to the claimant on an informal basis. She stated that there were various bonus plans and structures in place at the respondent’s premises. Miss Butler recommended that the claimant use his remaining sick leave to recover and get well rather engage with HR.[70]The claimant returned to work on 12 September 2022 when his fit note expired.[71]On 12 September 2022 a return-to-work meeting took place via teams call with Miss. Fletcher so to complete an online return to work form (see page 537-9) on the first respondent’s platform called Cascade. Miss Fletcher completed the return-to-work form with the claimant’s input and recorded the reason for his absence from 8 August 2022 until 11 September 2022 was “stress”. It records that the claimant was on medication in response to the cause of the recent absence. The claimant did not want to share the medication he was taking. The form also asked employees to share anything else of relevance that the company needs to be aware of going forward. The recorded response from the claimant was “nothing else Reg could think of”. The claimant stated that he wanted to work from home and to his grievance appeal was resolved because he thought there may be questions about his absence. Miss Fletcher could not agree to this because she did not know when the grievance appeal hearing would take place. The fit note did not suggest or make any recommendations that the claimant should work from home. However, Miss. Fletcher agreed to the claimant working from home that week and that could be reviewed again the following week.[72]The claimant gave evidence that he made notes of the meeting 12 September 2022 and sent notes of the meeting to himself on 8 October 2022 (page 625 to 626). These differ to the notes of the return-to-work form completed by Ms. Fletcher. The claimant recorded in the notes he informed Miss. Fletcher he was suffering from anxiety and struggling to leave the house. In his evidence he suggested that he had requested that Miss. Fletcher leave this information off the system (see page 665). Ms. Fletcher refuted this under cross examination. Miss Fletcher remembers that the claimant did ask her not to include some information on the form which she believes was about medication. She could not recall him mentioning anxiety and depression and in fact suggested the claimant was very cagey about revealing the reason for his absence or providing further details. The claimant conceded in evidence that he requested his GP to exclude anxiety and depression as reasons for his absence from his fit note.[73]Ms. Fletcher’s evidence was that if the claimant had shared anxiety and depression, she would have shared this with the relevant HR business partner who was Miss Butler who Miss Fletcher was working closely with at this time. Miss Butler does not recall any information about the claimant suffering anxiety or depression.[74]The Tribunal determined on the balance of probabilities that the claimant did not mention during the discussion on 12 September 2022 that he had anxiety or depression bearing in mind he was very reluctant to share any information about his health including any medication he was prescribed. The Tribunal preferred the evidence of Miss. Fletcher.[75]On 12 September 2022 the claimant also requested a call with Miss. Butler. He sought clarification about how the grievance appeal would run stating he was not fully well but had returned to work and wished to progress the grievance appeal. He requested a date to be set and described the grievance process was giving him a lot of undue stress. He sent an e-mail to Miss. Butler summarising the points discussed. Miss. Butler responded to this (page 550) acknowledging the claimant was feeling better and stating that concluding the grievance process may help his stress levels. She said it was agreed that the appeal hearing had not been set because the claimant had wanted to conduct the hearing when he was well enough to return to work. Mr Cairns who conducts appeal hearings was actually out of the country at the time. The claimant was permitted to work at home for the week commencing 12 September 2022.[76]Initially Miss. Butler advised holding the grievance appeal meeting via teams would not be an issue because generally if someone is unwell the respondent makes adjustments. She requested the claimant switch on his camera. She had not spoken to anyone about the teams meeting at that stage.[77]Miss Butler discussed the grievance appeal with Ms. Thomas who alerted her that the fact the claimant was suspected of recording the grievance meeting. Miss Butler spoke to Mr Cairns who stated as there was a breakdown of trust, given by the suspected recording of the grievance meeting, the grievance appeal should be held face to face. Therefore Miss. Butler informed the claimant by email dated 15 September to come into the office. She did not explain to the claimant at that time an in-person hearing was required by reason of the fact he was suspected of recording the meeting. On 15 September 2022 (page 542) the grievance appeal hearing was set up for 20 September at the respondent’s premises. The claimant had been offered as an alternative a neutral venue, but he did not accept that.[78]On 16 September 2022 the claimant emailed Miss. Butler to request that the grievance appeal hearing be held virtually stating that returning to the office to deal with the issue in person would set his recovery back and working from home would allow him to return to normal work sooner. He stated that his mental health had suffered due to the grievance process. Miss. Butler was on annual leave so Ms. Mylott spoke to the claimant via Teams. She offered to postpone the appeal meeting until the claimant felt well enough to attend an in-person meeting. She made notes of their discussion (page 555-6). The claimant stated that his GP had advised he worked from home, and he was struggling to leave the house at that moment. He said he's not 100% but he could do his job and asked to give him a week or a few weeks to get or ease back to the office. Miss. Mylott’s impression was that the claimant's reluctance to meet face to face was a temporary state and the claimant did not reference his anxiety or depression. Under cross examination, Miss. Mylott accepted that in her note at page 556 she did not record that the claimant said he could not leave the house but she recalled in her evidence that the claimant did say that however possibly he could have said anxiety, but she had could not recall that. On the balance of probabilities, the Tribunal determined that the claimant did not mention anxiety during the course of this meeting but did say he could not leave the house at present but was giving the impression that he would be well soon within a week or a few weeks because the claimant was trying to play down the nature of his ill health. He was concerned about stigma.[79]Miss Mylott again liaised with the respondent who remained of the view that the appeal should go ahead in person and the business was willing to delay the grievance appeal meeting until the claimant was well enough to attend. Mr Cairn's made the decision and communicated it to Janet Fletcher who communicated it to Miss. Mylott. The respondent's position was that it could maintain more control of the hearing and avoid recording if the claimant attended in person.[80]On 16 September 2022 at 4.52 p.m. (page 545) Miss. Mylott emailed the claimant confirming their conversation and requested the claimant to come in for the grievance appeal hearing. The claimant stated he was speaking with his GP who had advised to work from home while settling back into work. She recorded that the claimant said he would provide as fit note and would be forwarding it to the respondent. She stated that would be reviewed by the respondent. The respondent requested the grievance appeal hearing to be held face to face so the respondent would postpone the hearing on Tuesday until the claimant was physically back in work and make arrangements for the meeting at that time.[81]On 16 September at 7.29 p.m. the claimant responded, attaching a fit note. He said he was struggling with his mental health, leaving his house was difficult that is why he requested the meeting by Teams. He said initially he had been assured he could do it by teams; that position had now been changed. He said the whole grievance process was causing him further stress and it was unreasonable for the business to require a face-to-face meeting. He was disappointed if the meeting could not be facilitated on teams on 20 September, he would not be able to attend. He said everything was being done to make him feel more stressed. The fit note signed him off work from 16 to 30 September 2022 for “stress related problems”. The claimant had asked his doctor to amend his sick note because he was concerned about the stigma associated with depression and anxiety if he shared this with the employer[82]Miss. Mylott did not work on Mondays. She was not in the office on Monday 19 September 2022. She usually places an out of office response on her e-mail system, but she cannot recall whether she did this on Friday 16 September. She was unable to deal with the fit note on Monday 19 September.[83]On her return to work on 20 September 2022 Ms. Mylott reviewed the fit note. It was in place for two weeks, so she began trying to rearrange the grievance appeal meeting for week commencing 3 October 2022. She had not finalised arrangements or contacted the claimant when she received his resignation. By email at 11.33 a.m. dated 20 September 2022 the claimant resigned (see page 557).[84]The claimant stated in his resignation email he did not feel he was treated fairly in relation to the handling of the grievance process or paid fairly in relation to the bonus payment and had no choice but to leave the business. He felt he was forced to resign from his role as the situation was now untenable and was negatively impacting both his mental and physical health. He stated for months he wasn't given any clear guidance, reporting structure or written detail regarding his additional responsibilities in the hybrid role. The bonus scheme was not explained when he requested further detail. It was not detailed in any contract sent to him by HR having been assured to have faith and trust if he carried on the issues would be resolved. The trust was broken when he received a bonus payment at the end of the year which contradicted what he had previously been told. He said the grievance process was mishandled; not fair or impartial. He was not provided with statements and key people were not involved. Mike Cairns was to hear the appeal despite the fact he raised his objections about his ability to be impartial. Furthermore, he was being forced to have an appeal meeting in person. He had not been provided with a clear reason as to why it was to be in person. He felt that since raising the grievance his work was being scrutinised and blamed for errors of others.[85]Although the claimant suggested in this e-mail that he had raised objections to Mr. Cairns hearing the appeal, the Tribunal did not accept this. The first time the claimant raised objections to Mr Cairns was in his resignation e-mail.[86]Miss. Mylott acknowledged the claimant’s resignation.[87]A number of emails were included within the bundle of papers where a number of queries of orders had been raised with the claimant and others about orders. Part of the claimant’s case is that he was badly treated by the respondent and picked up on following raising the grievance. However, this allegation was not specifically put to the respondent’s witnesses. The Tribunal therefore took into account the material emails and concluded that they indicated normal working emails querying orders/work not just of the claimant but of other colleagues in the business. Submissions[88]The claimant submitted that there had been a failure to make a reasonable adjustment by requiring the claimant to attend a meeting in person. The claimant submitted the PCP of requiring an in-person attendance was a provision that was capable of being applied to others (see Ishola v Transport for London 2020 EWCA Civ 112). The substantial disadvantage was that the claimant was unable to attend in person at this time. The claimant submitted there was no need for an actual diagnosis; it does not matter that the claimant did not have a formal anxiety diagnosis. The fact is that the respondent was aware the claimant had mental health issues and was struggling to leave the house. Further, it was submitted where there any conflict of evidence the claimant's evidence should be preferred. There was a sufficient enough trigger for the respondent to have an obligation to make reasonable adjustments. The respondent ought reasonably to have known that his condition was likely to last namely could well happen following SCA Packaging v Boyle. The respondent should have had notice on 9 of August when the claimant says he told Miss. Fletcher he had anxiety and could not leave the home. The respondent had a duty to make reasonable adjustments. Not one of the respondent’s witnesses who gave evidence could explain what difference it could have made to have an in person hearing.[89]The claimant also submitted that in respect of the indirect disability discrimination claim, insisting on a grievance to be held in person posed a significant disadvantage to the claimant with agoraphobia. It was submitted that the respondent was annoyed because the claimant had challenged the bonus scheme and brought grievance proceedings and appealed. The claimant was bullied. The respondent has not justified why there should be an in-person hearing. It was less favourable treatment compared to a hypothetical comparator The respondent took advantage of the claimant who was struggling and still insisted on an in-person meeting.[90]In respect of the constructive unfair dismissal claim, the refusal to allow the claimant a virtual appeal hearing could amount to a breach of the implied term of trust and confidence which was a repudiatory breach which entitled the claimant to resign. Further the claimant was subject to a number of deceptive acts. The claimant was deceived about how he was to be paid for the work; he was subject to bullying and unjust treatment.[91]The respondent provided a written submission and supplemented it with oral submissions. The respondent referred the Tribunal to a number cases including Western Excavating ECC Limited v Sharp; Woods v WM Car Services Peterborough limited; London Borough of Waltham Forest v Omilaju; Bournemouth University Higher Education Corporation v Buckland; WA Goold (Pearmak) Limited v McConnell and another; Blackburn v LD Stores Limited; Meilke v Nottingham County Council; Wright v N Ayrshire council and WE Cox Toner International Limited v Crook; Shamoon v Chief Constable of the Ulster Constabulary; London Borough Council v Ladele.[92]The respondent submitted that agoraphobia did not appear as a pleaded disability and the respondent had no knowledge of this. The claimant’s submission about this should be disregarded. The pleaded disabilities were anxiety and depression. Furthermore, the claimant’s ill treatment by colleagues had not been put or tested in cross examination to the respondent’s witnesses who had not had an opportunity to refute the allegations. This too should be disregarded.[93]The respondent submitted that the confirmed target of £500,000 was communicated in an e-mail dated 15 of December 2021 up until that point the respondent had not confirmed to the claimant what the target would be because as the claimant was aware it needed to be signed off by REMCO. £500,000 target was applied to a full year; the claimant only had a target of 250,000 in order to achieve his bonus between September 2021 and March 2022. On his own evidence the claimant did not start producing sales until September. The respondent submitted that the interview of Miss Harvey does not demonstrate there was a change in target because Miss Harvey said she had not received the 15 December 2021 e-mail sent by Mr. Jones to the claimant. The fact that she considered the breakdown in the August meeting was a six-month term does not mean the sales target was actually increased.[94]The respondent submitted that their sales targets were not agreed until after the meeting in August 2021 Mr. Jones did not in fact confirm targets until 15 December 2021 because he had not been officially informed by REMCO till that point and the claimants bonus package would be a set out on page 266 there was no deception on the part of Mr. Jones. The respondent further submitted that Mr. Jones informed Ms. Mylott as to what ought to be placed into the contract regarding the bonus terms, but incorrect bonus details were included. Mr. Jones had set out the bonus in an e-mail dated 15 December 2021. The claimant did not sign the incorrect contract, nor was it enforced upon him. Mr. Jones tried to increase the bonus percentage owed from 14.2% to 15% and this was authorised by Mike Cairns. Mr. Jones sought to deal with the claimant’s queries about payment (see pages 269 to 271) but was unable to return to the claimant any quicker due to the fact that Mr. Jones relied on REMCO’s authorisation for the bonus. The claimant was paid £2,564.33 calculated at 15% of £34,191 for the period in the bonus scheme namely 6 months or 7.5% of the annual salary. This gave the claimant 15% of 6 months salary because there is the period when he was in the bonus scheme from 1 September 2021 to 20 March 2022. The claimant was paid in accordance with the e-mail set out (page 266 in December 2021). The claimant’s appeal was heard by Mr. Cairns who has authorised an increase to the claimant’s bonus from 14.2% to 15%. The claimant did not dispute Mr. Cairn’s impartiality at the time this was communicated to him. There was no evidence of unjust or cruel treatment to the claimant. Mr. Jones expressed he was disappointed they had ended up where they were after making efforts with the claimant to progress him. There was no vendetta or ill feeling. It was submitted it was incredible to suggest that Ms. Harvey would be supportive to the claimant in a grievance and then debark on a witch-hunt; scrutinising his work. There is no evidence the claimant’s work was being scrutinised or he was bullied. These allegations are not well founded and should fail. The claimant was invited to a meeting on 3 August 2022 to discuss the covert recording. The claimant’s appeal hearing was listed on 11 of August 2022. The claimant was provided with a sick note dated 9 August. Ms. Fletcher denies the claimant told her he was suffering from anxiety and depression. On 9 August 2022 the claimant stipulated he did not want any other party to know about his stress condition other than Melanie Butler and Ms. Fletcher. The claimant was very keen that people were not aware of his stress. Due to the fact the claimant was being investigated for covert recording of a meeting there was a loss of trust so the respondent reasonably requested an in person meeting. This had nothing to do with disability.[95]In respect of a failure to create reasonable adjustments it relied on the claimant’s concession in evidence that he could not speak for a particular practise and could only speak from his own experience. The claimant accepted that the respondent would allow online hearings. The grievance outcome meeting for the claimant was held virtually due to concerns about the grievance manager's health. Initially the second respondent had no issue holding the grievance appeal meeting in person (before she spoke to the grievance appeal manager) There was no such PCP in place, the requirement here was one off. Further the respondents submitted that it was unaware of any substantial disadvantage and knowledge.[96]For similar reasons the indirect disability discrimination claim should fail. The electronic recording of grievance hearings is prohibited. The claimant having recorded the grievance hearing, the first respondent was entitled to investigate that. The Law Constructive unfair dismissal
The Law
[97]Pursuant to section 95(1)(c) of the Employment Rights Act 1996 defines constructive dismissals arising when the employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled to terminate without notice by reason of the employer's conduct.[98]The conduct must amount to a breach of an express or implied term of the contract employment which is of sufficient gravity to entitle the employee to terminate the contract in response to the breach. In this case the breach of contract relied upon by the claimant is a breach or breaches of the implied term of trust and confidence.[99]A repudiatory breach is a significant breach going to the root of the contract (Western Excavating ECC limited v Sharp 1978 ICR 221). It is not enough that the employer has behaved unreasonably. In the judgement of the EAT in Woods v WM Car Services Peterborough Limited 1981 IRLR 347 the Court explained that it is clearly established that there is implied in the contract of employment a term that the employers will not without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. Any breach of this implied term is a fundamental breach amounting to a repudiation of the contract since it necessarily goes to the root of the contract. To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract. The employment tribunal’s function is to look at the employer's conduct as a whole and determine whether it is such that its cumulative effect judged reasonably and sensibly is such that the employee cannot be expected to put up with it.[100]In respect of the final straw this was considered in the Court of Appeal judgement in London Borough of Waltham Forest v Omilaju 2005 IRLR 35 “in order to result in a breach of the implied term of trust and confidence a final straw not itself a breach of contract but must be an act in a series of early acts which cumulatively amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts. Its essential quality is that when taken in conjunction with the early acts on which the employee relies it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach although what it adds may be relatively insignificant so long as it is not utterly trivial. The final straw viewed in isolation need not be unreasonable or blameworthy conduct”.[101]As regards the objective nature of the test in the Court of Appeal judgement in Bournemouth Hyatt University Education Corporation v Buckland 2010 IRLR 45 it was stated the conduct of an employer who is said to have committed a repudiatory breach of the contract of employment is to be judged by an objective test rather than a range of reasonable responses test. Reasonableness may be one of the tools used by the employment tribunal’s analysis in deciding whether there has been a fundamental breach but it cannot be a legal requirement.[102]There is also an issue surrounding the circumstances of the treatment of the claimant’s grievance by the respondent in Goold WA Pearmak Limited v McConnell and another 1995 IRLR 516, it was stated there is a fundamentally implied term in a contract of employment that an employer will reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance they may have. Judge Richardson in the EAT considered the treatment of grievances in the case of Blackburn v Aldi Stores Limited UKEAT/0185/12 stating that a failure to adhere to a grievance procedure is capable of amounting to or contributing to such a breach. Whether in any particular case it does is a matter for the tribunal to assess. Breaches of grievances procedures come in all shapes and sizes. On the one hand it is uncommon for grievance procedures to lay down quite short timetables. The fact that such a timetable is not met will not necessarily contribute to still less amount to a breach of the term of trust and confidence. On the other hand, where maybe where there is a wholesale failure to respond to a grievance. It is not difficult to see that such a breach may amount to a contributory breach of the implied term of trust and confidence. Where such an allegation is made the Tribunal's task is to assess what occurred against the Malik test.[103]In the case of Wright v North Ayrshire Council UKEATS/0017/13 Langstaff P held the crucial question is whether the repudiatory breach played a part in the dismissal. Once the repudiatory breach is established if the employee leaves and even if he may have done so for a whole host of reasons he can claim that he hass been constructively dismissed if the repudiation breach is one of the factors relied upon.[104]An employee must not delay their resignation too long or do anything else which indicates acceptance of the change basis of their employment see WE Cox Toner International Limited v Crook 1980 ICR 823. Knowledge of disability[105]In the case of A Limited v Z (UKEAT/0273/18) the EAT held the tribunal was wrong to attribute knowledge to a respondent. The EAT summarised the legal principles in relation to constructive knowledge at paragraph 23 of the judgement and considered York City Council v Grosset (2018) ICR 1492 CA, Donelien v Liberata UK Limited UKEAT/0297/14, Pnaiser v NHS England & Another 2016 IRLR 170, Henrry v Dudley Metropolitan Council (2017) ICR 610 and Secretary of State for Work and Pensions v Alam 2010 ICR 665 stated that “reasonableness for the purposes of section 15(2) must entail a balance between the strictures of making inquiries, the likelihood of such inquiries yielding results and the dignity and privacy of the employee as recognised by the code”. The EAT upheld arguments of the appellant that if a proposed inquiry would not have yielded the requisite knowledge it cannot have been reasonable to have had to make it and it could not be the function of section 15 (2) to impose significant obligations and burdens on employers nor should an employer be required to impose itself upon an employee's concerted wish to suppress exposure of a health condition in particular a mental health condition. To determine otherwise would run counter to the requirement in the code that investigations are conducted in accordance with dignity and privacy. The ET in this case had found that the employer would not have obtained knowledge of the disability even if it had asked the right questions of her the respondent did not have constructive knowledge of the disability at the relevant time.[106]The Code of Practice from the ECHR about constructive knowledge states that an employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will to bend on the circumstances this is an objective assessment (see paragraph 5.15 of the equality and Human Rights Commission code of practise on employment 2011 the code). Direct discrimination[107]Section 13 of the Equality Act 2010 provides that a person a discriminates against another be if because of a protected characteristic a treats B less favourably than a treats would treat others.[108]Under section 23 (1) of the Employment Rights Act 1996 where a comparison is made there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.[109]In order to find discrimination has occurred there must be some evidential basis on which the tribunal can infer that the claimant’s protected characteristic is the cause of the less favourable treatment. The tribunal can take into account a number of factors including an examination of circumstantial evidence.[110]The Tribunal must consider whether the fact that the claimant had the relevant protected characteristic had a significant or more than trivial influence on the mind of the decision maker. The influence can be conscious or unconscious. It does not need to be the main or sole reason but must have a significant that is not trivial influence.[111]The effect of section 23 is to ensure that any comparison made must be between situations which are generally comparable. The case law makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person. The Employment Appeal Tribunal and higher courts have emphasised including in the case of Amnesty International v Ahmed 2009 IRLR 884 in most cases where the conduct in question is not overtly related to the protected characteristic the real question is the reason why the decision maker acted as he or she did answering that question involves consideration of the mental process whether conscious or subconscious of the alleged discriminator to identify whether conscious or subconscious of the alleged discriminator to identify whether the protected characteristic had any material influence and it may be possible for the tribunal to make a finding as the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator. Burden of proof[112]Section 136 of the Equality Act 2010 sets out the relevant burden of proof that must be applied. Initially it is for the claimant to prove on the balance of probabilities primary facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the respondent committed an act of unlawful discrimination.[113]At the second stage discrimination is presumed to have occurred unless the respondent can show otherwise the standard of proof is again on the balance of probabilities. In order to discharge that burden of proof the respondent must reduce cogent evidence that the treatment was in no sense whatsoever because of the claimant sexual orientation. The respondent does not have to show that its conduct was reasonable or sensible for this purpose merely that its explanation for acting the way that it did was non-discriminatory.[114]In the case of Hewage v Grampian Health Board 2012 IRLR the Supreme Court approved guidance on the burden of proof set out by the Court of Appeal in Igen limited v Wong 2005 EWCA Civ 142 and Madarassy v Nomura International PLC 2007 ICR 867. Although the concept of the shifting burden of proof involves a two stage process that analysis should only be conducted once the Tribunal has heard all the evidence including any explanation offered by the employer for the treatment in question. However, if in practise the Tribunal is able to make a firm finding as to the reason why a decision or action that was taken the burden of proof provision is unlikely to be material.[115]The Tribunal has regard to any relevant provisions of the code of practise an employment issued by the equality and Human Rights Commission which came into force on 6 April 2011 the code. Reasonable Adjustments[116]Employers are required to take reasonable steps to avoid a substantial disadvantage where a provision criterion or practise applied to a disabled person puts a disabled person's substantial disadvantage because of the disability compared to those who are not disabled. The word substantial in this context means more than minor or trivial. The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that the particular provision criterion or practise disadvantages the disabled person. Accordingly there is no requirement as there is in a direct discrimination claim to identify a comparator or comparative group whose circumstances are the same or nearly the same as the disabled person circumstances. A comparison can be made with non disabled people generally.[117]The phrase provision criterion practise is not defined by the 2010 act. It broadly encompasses requirements placed upon employees by employers and can extend to formal or informal policies rules practises or arrangements.[118]An employer only has a duty to make adjustments if they know or could reasonably be expected to know both that the affected worker is disabled and that they are placed at a substantial disadvantage by the application to them of the relevant provision criterion or practise. The words could reasonably expect it to no encompass the concept of constructive knowledge. The question of whether the employer had or ought to have knowledge of the disability in question is one of fact for the tribunal.[119]The duty to make reasonable adjustments requires employers to take such steps as is reasonable to have to take in order to have to make adjustments. There is no onus upon the disabled person to suggest what adjustment should be made. By the time the matter comes before the tribunal the disabled person ought to be able to identify the adjustments which they say would be of benefit.[120]There is no requirement for the disabled person to show that on balance the adjustment would ameliorate the disadvantage. In Project Management Institute v Latif (2007) IRLR 580 paragraph 54 Elias P stated “the claimant must not only establish the duty has arisen but there are facts from which it could reasonably be inferred absent an explanation that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty but it provides no basis on which it could be infer that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.”[121]The following are some of the factors which according to the ECHR code might be taken into account when deciding what is reasonable step for an employer to take including(a) whether taking any particular step would be effective in preventing the substantial disadvantage(b) the practicability of the step(c) the financial costs of making the adjustments and the extent of any disruption caused(d) the extent of the employers financial or other resources(e) the availability to the employer financial or other assistance to make the adjustment(f) the type and size of the employer.[122]Ultimately the test of reasonableness is an objective one and will depend upon the circumstances of the case. Adjustments may include transferring the disabled person to fill an existing vacancy altering the disabled persons working hours or providing them with training or assigning a disabled person to a different place of work or arranging home working Discrimination arising from disability[123]Pursuant to section 15 of the Equality Act 2010 a person A discriminates against a disabled person B, if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The provision will not apply if a shows that a did not know could not reasonably have been expected to know that B had the disability.[124]The claimant needs to establish that they have been unfavourably treated. The unfavourable treatment must then be shown to be of because of a relevant something and that the relevant something arises in consequence of the disability. In the case of Pnaiser v NHS England (2015) UK EAT/137/15 guidance was given up on the correct approach to section 15 cases. The Tribunal must firstly identify whether there was unfavourable treatment and if so by whom. The Tribunal must then determine what caused the treatment or what was the reason for it. The focus at this stage is on the reason in the mind of the decision makers. The something that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant or more than a trivial influence on the unfavourable treatment and so amount to an effective reason for it.[125]The Tribunal must then determine whether the reason for the unfavourable treatment is something which arises inconsequence of the claimant’s disability. A loose causal link may be established by the complainant.[126]The second stage of the causation test that the thing causative of the treatment arose because of disability involves an objective question and does not depend on the thought process of the alleged discriminator. The required state of mind is simply that the unfavourable treatment should be because of the relevant something there is no requirement that the alleged discriminator also should have known that the relevant something arose from the disability.[127]Should the complainant established that they have been unfavourably treated for something of rising inconsequence of disability then it is open to the respondent to justify that unfavourable treatment. The burden is upon the respondent when seeking to run a justification defence to show that the treatment of the complainant is a proportionate means of achieving a legitimate aim.[128]The aim must be legitimate and unrelated to any discrimination based on any prohibited ground. This means all measures adopted to achieve the aim must be capable of doing and must be proportionate. The objective of the measure must be sufficiently important to justify the limitation of a protected right. This involves the Tribunal considering whether a less intrusive measure could have been used and balancing the severity of the measures of fact upon the complainant against the extent that the measure will contribute to the achievement of the aim from the perspective of the employer. The test to be applied by the Tribunal is objective. The Tribunal has to make its own judgement as to whether the measure applied by the respondent is reasonably necessary as a proportionate means of achieving the aim in question.[129]The Tribunal must evaluate the employees legitimate aim and not some other aim that the Tribunal may consider would have been preferable. Where there is no other way of achieving the identified aim then the means will inevitably be proportionate. The employer must persuade the Tribunal that there was a legitimate aim and that it was appropriate and necessary to adopt the means in question in order to achieve the aim. It must be shown that the means adopted actually contributed to the pursuit of the aim.[130]The Equality and Human Rights Commission's Employment Code sets out guidance on objective justification. The code says that the main aim pursued should be legal should not be discriminatory in itself, and must represent a real objective consideration. In respect of proportionality the code notes that the measures adopted by the employer do not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective Indirect discrimination[131]In the claim of indirect discrimination, the PCP must place the group with which the claimant shares the protected characteristic in question at a particular disadvantage compared to groups that do not share the protected characteristic. The comparisons should not be in materially different circumstances. Not every member of the group needs to be placed at a disadvantage insofar as the group is proportionately disadvantaged; Essop v Home Office 2017 UKSC 27. Particularly in this context is not intended to connote the disadvantage that is required to meet a certain level of seriousness but simply makes clear that it is a disadvantage for those with the relevant protected characteristic see |McNeil v Commissioners for HMRC 2019 EWCA Civ 1112.[132]If the claimant proves that a PCP has been applied, it is then necessary to consider whether the claimant has proved that the PCP puts or would put persons who share the protected characteristic of the claimant at a particular disadvantage when compared with persons who do not share the protected characteristic that is it is necessary to show group disadvantage caused by the PCP. In general, the pool is all those to whom the PCP is applied otherwise the pool does not test the allegation being made (see Dobson v the North Cumbria Integrated NHS Foundation Trust 2021 IRLR 729). At paragraph 4.18 of the EHRC code it is stated that in general the pool should consist of the group which the provision, criterion, or practise effects or would affect either positively or negatively while excluding workers who are not affected by it either positively or negatively. The starting point for identifying the pool is therefore to identify the PCP. Once the PCP is identified, then the identification of the pool itself will not be a question of discretion or a fact finding but of logic see Alan v Accrington and Rossendale college. Lady Hale identified one of the salient features of the indirect discrimination claims is being that it is commonplace for disparate impact to be established on the basis of statistical evidence. Baroness Hale explained in Chief Constable of West Yorkshire Police v Homer (2012) ICR 704 the change in the test for indirect discrimination brought about by the Equality Act. Baroness Hale held at paragraph 14 it was intended to do away with the complexities involved in identifying those who could comply and those could not and how great the disparity had to be now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. Applying this approach the EAT in Games v University of Kent UKEAT/0524/13 held at paragraph 41 it follows that it was not necessary for the claimant in order to establish particular disadvantage to himself and his group to be able to prove his case by the provision of relevant statistics. These if they exist would be important material but the claimants own evidence or evidence of others in the group might suffice in some cases particularly where the asserted group disadvantages will be obvious. It is possible for a claimant to prove that there is group disadvantage without drawing up a pool or relying on the statistical evidence as was explained in Dobson v Cumbria Integrated NHS Foundation Trust 2021 IRLR 729 it is not necessary for a claimant to show that the PCP is impossible for the claimant and group to comply with it merely it has to create a disadvantage.[133]The Tribunal found that all the witnesses tried their best to recall events. The claimant tended to embellish his evidence but the Tribunal determined at the time of the material matters he was very unwell. Mr. Jones was very defensive and was reluctant to accept that the explanation to the claimant about the workings of the bonus could have been far clearer.
Conclusions
[134]Did the respondent do the following things :(a) The deceptive act by RJ of agreeing to a sales point of £300,000 in July/August 2021 and after the claimant had spent four months performing the role and making sales, changing the sales target on 15 December 2021 without explanation to £500,000. The claimant asserts that this change was made because by December 2021 he had already exceeded the original target of £300,000. If Mr. Jones had acted deceptively by agreeing a level of sales point to obtain a bonus and then changed it, that is conduct which could be calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. On the balance of probabilities, the Tribunal did not find that Mr. Ryan Jones had acted deceptively. At the time of the proposal of the new role, Mr. Jones explained to the claimant and the claimant was clear that there was no salary payable and that the claimant would be renumerated by the respondent for the hybrid role by way of a bonus. During discussions in July and August of 2021, Mr. Jones informed the claimant that he was considering a bonus of £300,000 of sales targets prior to the claimant obtaining a bonus. However, Mr. Jones did make it clear to the claimant that he required the sign off for this target/bonus and it was also made clear to the claimant that it was not a firm arrangement and subject to Board approval. The claimant commenced the new role with enthusiasm in or about August 2021. There is no dispute that the claimant was a conscientious and competent employee who achieved and in fact exceeded £300,000 sales by 15 December 2021. Mr. Jones did not obtain the sign off for £300,000 and in fact the authorisation was to pay the bonus at £500,000. Mr. Jones explained in the e-mail to the claimant on 15 December 2021 that the full year target for him was £500,000 and the quarterly target was £125,000. The bonus would be payable quarterly. If the claimant achieved the quarterly target he would be paid 10% of base salary in respect of that quarter (receiving 10% of one quarter of his salary). In the case of overachievement, the claimant's bonus was capped at 15% of base salary; so if he achieved 150% of his quarterly target he would be paid 15% of one quarter of his salary. The claimant misunderstood that £500,000 was the annual target for which he had only been in the scheme for two quarters. If the targets are achieved in a quarter employees are paid a percentage of their salary in respect of that quarter. If employees overachieve in one quarter, they are not paid additional bonus in respect of this overachievement until the end of the year so the respondent’s business can assess the level of overachievement across the time spent in the scheme. Bonuses for over achievement are paid as a percentage of salary pro-rated to reflect time spent in the scheme. The claimant due to his inexperience of bonus schemes, fundamentally misunderstood as to how the bonus scheme worked and Mr. Jones by reason of his experience of bonus schemes, rather assumed he had been clear to the claimant about how the bonus worked. Although Ms. Somayeh was critical of the first respondent’s communication about the bonus to the claimant in the grievance hearing, the Tribunal noted that she had not seen the email sent to the claimant on 15 December 2021. However, the Tribunal does not find that Mr Jones acted deceptively in any way. This allegation fails.(b) The deceptive act by RJ of agreeing terms for bonus on 15 December 2021 then a contract being sent in January 2022 which had the bonus terms that differed materially from the agreement in the e-mail on 15 December 2022. If Mr. Jones had acted deceptively by agreeing terms for bonus on 15 December 2021 then changing those terms in a contract (page 676-692) sent to the claimant in January 2022 which differed from the agreement in the email on 15 December 2021 that could be a matter which could be calculated or likely to destroy or seriously damaged the trust and confidence between the claimant and respondent. On the balance of probabilities, the Tribunal did not find that Mr. Jones acted deceptively. Mr. Jones was very familiar with the process of payment of bonuses having been in a bonus scheme for 20 years. The claimant had no knowledge of bonus schemes and had never received a bonus in his employment. Regrettably the respondent made a genuine mistake in its communication in the contract by email dated January 2022 which did not replicate the email of Mr. Jones dated 15 December 2021. Mr. Jones had explained what he wanted included within the contract, he did not check the contract once it was prepared and prior to it being sent to the claimant. Ms. Mylott interpreted what Mr. Jones said about the bonus, but it was incorrect. The respondent did not seek to impose the contract on the claimant. The Tribunal found of significance importance here is that the claimant due to his lack of knowledge of bonus schemes had interpreted the scheme in a different way to the understanding of Mr. Jones. Mr. Jones had failed to explain clearly to the claimant to ensure he understood how the scheme actually worked. The fact that the contract was wrongly worded showed that it was unclear to Ms. Mylott as to how the bonus scheme should be interpreted. If Mr. Jones had acted deceptively that would have been considered to have been calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. However, the Tribunal does not find that there was any deception on the part of Mr. Jones; his instructions as to what to include in the contract were misinterpreted and there was a genuine and regrettable error contained in the contract. This allegation fails.(c) The refusal of any party in the organisation to address the claimants concerns in respect of the changes in sales targets and the contract; A failure to address concerns raised by the claimant in respect of changes in sales targets and the contract could amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. The claimant ran this point as a separate matter to the concerns he raised about the formal grievance process which the Tribunal deals with below. The Tribunal found that Mr. Jones confirmed the bonus scheme in an email to the claimant dated 15 December 2021 (page 266). The claimant raised queries about the bonus from 12 April 2022 (see pages 267-9) and to 25 April 2022 (page 252-274). Mr. Jones did provide responses to the claimant’s queries, but the claimant was dissatisfied with the responses because it failed to tally with the claimant’s misunderstanding as to how the bonus was to work. The claimant raised an informal grievance on 25 May 2022 (page 264). The informal grievance was considered by Ms. Fletcher page 258 who noted the claimant’s concerns but was unable to conclude it within the time requested by the claimant because she could not speak to the relevant people concerning the calculation of the bonus. Ms. Fletcher’s inability to conclude the informal stage was not a refusal to address the claimant’s concerns. The Tribunal determined that the respondent did attempt to address the claimant’s concerns about the bonus sales targets and the contract, but it was not determined in the claimant’s favour; this was his dissatisfaction. Ms. Fletcher produced a table setting out how the claimant calculated the bonus but was awaiting further information. The Tribunal did not find that the respondent refused to address his concerns. This allegation fails.(d) The failure in May 2022 to pay the claimant the requisite bonus If the respondent had failed to pay the correct bonus, without just cause, that could amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. When Mr. Jones received the bonus files in April 2022 he emailed the claimant on 21 April 2022 to confirm the claimant's entitlement to the bonus (see page 271). In quarter 3 and 4 the claimant, had made £355,000 in sales. The claimant had overachieved his target of £250,000 in quarters 3 and 4; this totalled an overachievement of 142%, which entitled, the claimant to a 14.2% bonus. Mr. Jones requested Mr. Cairns to count the claimant’s September sales towards his bonus; Mr. Cairns stated that the claimant’s September sales could be included if the claimant carried a quarter 2 target so that between September 2021 and March 2022 the claimant’s target became £375,000 (£125,000 for quarter 2 and £250,000 for quarter 3 and 4). The claimant had total sales for the period of September to March (quarters 2, 3 and 4) at £599,455 against a target of £375,000. This amounted to an achievement of 159% so that the claimant was entitled to the maximum 15% bonus. On the balance of probabilities, the Tribunal found that the claimant was paid the correct bonus in accordance with the terms agreed by REMCO/the Board dated 15 December 2021 (page 266). Regrettably, the terms of the bonus scheme and how it operated had not been fully explained to the claimant, who was a novice in terms of bonus schemes, so that he understood it. However, the claimant was paid the correct bonus and this allegation fails.(e) The failure to operate a fair and impartial grievance procedure The failure to operate a fair and impartial grievance (without just cause) is conduct which could amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. The grievance procedure provides a formal grievance process : the respondent could investigate the grievance before holding the grievance hearing where appropriate or a grievance meeting may be held before deciding on what investigation to carry lout. If the latter approach is taken a further grievance meeting would be held with the claimant after the investigation and before a decision was reached. “If any evidence is gathered you will be provided with a copy in advance of the meeting for you to consider your response” (see paragraph 5 page 221). The Tribunal refers to its findings of fact above. Ms. Thomas adopted the process of holding the grievance hearing with the claimant on 21 June 2022 (see page 301 to 326). In the course of that hearing Ms. Thomas sought to persuade the claimant that his interpretation was wrong; it gave a clear impression that she had pre-determined the grievance. Following the grievance hearing Ms. Thomas conducted some further investigation by way of interviews of Mr. Jones (page 332-4) and Ms. Harvey ((335-9) on 28 June 2022. Ms. Thomas then reached her decision failing to afford the claimant the right to comment on the witness statements. Miss. Thomas reached her grievance outcome on 15 of July 2022 (page 377-379) However, in breach of the grievance procedure Ms. Thomas failed to provide the claimant with these witness statements to comment upon prior to her reaching her decision. There was no just cause by the respondent put forward to explain this. The Tribunal determined that it was a significant flaw in the process that Ms. Thomas had not provided the claimant with the witness statements or given him the opportunity to comment on the evidence. The Tribunal also found that the conduct of Miss. Thomas at the hearing was not an approach of actually listening to the claimant’s grievance but rather she reached a conclusion in the course of her discussions with the claimant. As indicated by the evidence of Miss. Butler the appropriate procedure is to listen to the grievance rather than to make a determination in the course of the hearing and it gave the impression that Carrie Thomas had predetermined the decision and was not really listening to the claimant’s case. The Tribunal finds that the conduct of the grievance procedure by Ms. Thomas was unfair and partial. The Tribunal finds that this conduct amounted to conduct likely to destroy or seriously damage the trust and confidence between the clamant and the first respondent and there was no just cause for failing to follow a written grievance procedure. This in itself as a breach of the implied terms of trust and confidence and was a repudiatory breach of contract.(f) The cruel and unjust treatment of the claimant by the management of the first respondent following the commencement of the grievance procedures by the claimant Treatment of the claimant by management (without just cause) which was cold and unjust could amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. However, these allegations were not put to the respondent’s witnesses so that they had an opportunity to comment upon them. The evidence in chief of the witnesses (set out in the witness statements) was that issues were raised with the claimant along with colleagues. There was no singling out of the claimant. The Tribunal also found it unsustainable by the claimant to suggest Ms. Harvey, who the claimant relied upon as supporting his case on the payment of the bonus was party to a witch hunt. The Tribunal taking into account the email material found that this was a matter for the claimant’s perception and was not substantiated on the evidence. This allegation fails.[135]The act of not allowing the grievance appeal meeting to be held virtually in the circumstances; The allegation at (g) in relation to the appeal meeting is submitted to be (i)the final straw which led the claimant to resign; and/or (ii)sufficient in itself to amount to a fundamental breach of contract entitling the claimant's resign and treat himself as dismissed by the 1st respondent. The conduct of not allowing a grievance appeal hearing to be held virtually may depending on the circumstances amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent or in the circumstances may amount to a final straw. The Tribunal notes that the respondent can make adjustments to its policy and allow grievance hearings to be held remotely. The evidence of Melanie Butler at paragraph 22 of her statement is that grievance hearings had taken place both virtually and in person. The Tribunal determined that without just cause, refusing to allow the grievance appeal meeting to be held virtually in circumstances where an employee complains of anxiety and depression; difficulty of leaving the house and requiring the appeal hearing to assist his recovery is conduct which could be calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent. However, the findings of fact by this Tribunal are that the claimant did not raise he had anxiety and depression with the respondent. During a meeting with Ms. Mylott on 16 September 2022 the claimant said he could not leave the house but gave the clear impression this was a temporary situation; stating that he should be well within a week or a few weeks. The claimant did not mention his anxiety and depression because he was playing down his ill health; he was very concerned as to the stigma of having poor mental health. However, the respondent did not inform the claimant the reasons as to why his request for a virtual hearing was refused. The respondent had in its mind that the claimant had covertly recorded the previous grievance hearing in breach of the grievance procedure and concluded it would be able to prevent this if the hearing was in person. In his resignation email dated 20 September 2022 the claimant stated he was being forced to have an appeal meeting in person and had not been provided with a clear reason as to why it was to be in person. The Tribunal determined that the respondent did have just cause to hold the grievance appeal hearing in person, on the claimant’s return to work, in circumstances where the claimant had covertly recorded the grievance hearing in breach of the policy; they could ensure if in person the claimant was unlikely to record the grievance appeal hearing. The Tribunal therefore did not find that requiring the claimant to attend the grievance appeal hearing in person was a matter which was conduct calculated or likely to destroy or seriously damage the trust and confidence because the respondent had just cause to require an in person hearing. However, the insistence of an in person hearing in the context of a failure to explain to the claimant as to the reason they required the in person hearing was a last straw which contributed to the breach of trust and confidence Omaliju v Waltham Forest London Borough Council (2004) EWCA Civ 1493 so to lead the claimant to resign his employment with them. The Tribunal determined that the claimant lost trust and confidence in the respondent by failing to operate a fair and impartial grievance procedure. Furthermore, added to this repudiatory breach of contract was the unexplained refusal not to hold the grievance appeal hearing virtually (the last straw). As a result, the claimant resigned his employment on 20 September 2022. There was no waiver of affirmation of his contract of employment and no principal reason advanced by the respondent for the claimant’s dismissal. The claimant was unfairly constructively dismissed. A remedy hearing will be held to determine compensation. Direct disability discrimination (Equality Act 2010 section 13 -against all[136]Did the respondents have actual and or constructive knowledge of the claimant’s disability/disabilities and if so from when There is no dispute that the claimant was disabled at the material time by reference to anxiety and depression. However, the Tribunal found that the respondent had no actual or constructive knowledge of these impairments. Anxiety and depression were never mentioned by the claimant to the respondent at any stage. The G.P. fit notes only mentioned stress. The claimant only described stress. The claimant was very concerned about the stigma of having poor mental health. He even requested his G.P. to remove reference to anxiety and depression in his fit note. He did not wish to inform the respondent about the medication he was taking. It was not until the discussion he had with Ms. Mylott that he said he had difficulty leaving the house, but he gave the impression that it was a temporary matter and stated he needed a week or weeks to get back. In this context the Tribunal determines that any further reasonable enquiries by the respondent into the claimant’s health would not have resulted in any further information because the claimant was “cagey” about the state of his mental health. The Tribunal finds that they respondent did not have actual or constructive knowledge of the claimant’s disability of anxiety and depression.[137]Did the second and/or third respondent do the following things :-(a) between 14 and 16 September 2022, deny the claimants request to hold the grievance appeal virtually despite the claimant previously having been told that would be possible)(b) Was that less favourable treatment(c) If so, was it because of disability[138]The claimant did not identify an actual comparator. However, the Tribunal found that the respondent did refuse the claimant’s request to hold a grievance appeal hearing virtually because it wanted to ensure that the claimant would not record the grievance appeal hearing. The respondent formed the view it was less likely that the claimant could record the grievance appeal hearing if he turned up in person. He had already covertly recorded the grievance hearing when it was virtual. The claimant had previously been told it would be possible but that was in the context of not knowing the claimant had recorded the previous meeting. The reason for the treatment had nothing whatsoever to do with the claimant’s disability; the reason for the treatment was the claimant had previously covertly recorded a grievance hearing in breach of the policy and the respondent did not want this to occur again or at the very least wished to reduce the risk of it occurring again.[139]The direct claim fails. Discrimination arising from disability (Equality Act 2010 section 15)[140]Did the respondents treat the claimant unfavourably by (a) between 14 and 16 September 2022 deny the claimant’s request to hold the grievance appeal virtually despite the claimant previously having been told that it would be possible). The respondent did refuse to hold the grievance appeal virtually despite the claimant previously having been told that it would be possible[141]Did the following things arise inconsequence of the claimant’s disability (a) the claimant was unable to leave his house without great difficulty. The claimant was unable to leave his house without great difficulty by reason of his anxiety and depression, but he did not inform the respondent about anxiety or depression or suggest that his inability to leave was anything but a temporary situation.[142]Was the unfavourable treatment because of that thing The unfavourable treatment was because of the claimant’s disability; he could not engage in an in person hearing because he could not leave his house because of his anxiety and depression.[143]Was the treatment a proportionate means of achieving a legitimate aim? The legitimate aim was to ensure that employees comply with the grievance procedure. In the context that the claimant had previously recorded covertly the hearing the Tribunal finds that it was appropriate and reasonably necessary to hold an in person hearing so to reduce, if not prevent covert recording of the grievance appeal hearing in breach of the procedure. In the circumstances the Tribunal determined the treatment was an appropriate and reasonably necessary way to achieve those aims and there nothing less discriminatory that have been done instead.[144]Did the respondents know or could they reasonably have been expected to know through actual and or constructive knowledge that the claimant had the In any event, the Tribunal has already found that the respondent did not know nor could they reasonably have been expected to know through actual constructive knowledge that the claimant had a disability. Anxiety and depression were never mentioned by the claimant to the respondent at any stage. The G.P. fit notes only mentioned stress and the claimant only mentioned stress. During his conversation with Ms. Mylott on 16 September 2022 the claimant said he had difficulty leaving the house, but he gave the clear impression this was temporary and stated he needed a week or weeks to get back. The claimant was very “cagey” and concerned about the stigma of having poor mental health. He even requested his G.P. to remove reference to anxiety and depression in his fit note. He did not wish to inform the respondent about the medication he was taking. In this context the Tribunal determines that any further reasonable enquiries by the respondent into the claimant’s health would not have resulted in any further information because the claimant was “cagey” about the state of his mental health. The Tribunal finds that they respondent did not have actual or constructive knowledge of the claimant’s disability of anxiety and depression. The section 15 claims fails. Indirect disability discrimination (section 19 of the Equality Act 2010)[145]A PCP is a provision criterion practise. Did the respondents have the following PCP : (a) an outcome appeal take place in person The respondent applied this PCP to the claimant. However, the Tribunal finds that it could be applied to a non-disabled person if the non-disabled person covertly recorded a grievance hearing (following Ishola). The PCP was established.[146]Did the respondents apply the PCP to the claimant The respondent applied the PCP to the claimant[147]Did the respondent apply the PCP to persons with whom the claimant does not share the protected characteristic of disability or would it have done The evidence of the respondent is that grievance/grievances appeal hearings can be held remotely or in person. The Tribunal concluded that on the balance of probabilities the requirement was applied pursuant to the policy to all which included those that do not share their protected characteristic of disability with the claimant.[148]Did the PCP put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic in that individuals with anxiety or depression are less likely to be able to leave their house without great difficulty[149]The claimant did not adduce any evidence to establish this issue. Consequently, the Tribunal did not find the claimant was placed at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic in that individuals with anxiety or depression are less likely to be able to leave their house without great difficulty was established.[150]Did the PCP put the claimant at that disadvantage By reason of the claimant’s disability the PCP placed the claimant at a disadvantage.[151]Was the PCP proportionate means of achieving a legitimate aim The Tribunal decided that the legitimate aim was to ensure that employees comply with the grievance procedure and do not covertly record the hearing in breach of that procedure. In the context that the claimant had previously recorded covertly the hearing the Tribunal finds that it was appropriate and reasonably necessary to hold an in person hearing so to reduce, if not prevent covert recording of the grievance appeal hearing in breach of the procedure. In the circumstances the Tribunal determined there was a legitimate aim namely to ensure the claimant complied with the policy; it was an important aim that a policy is complied with and it was reasonably necessary way to require the claimant to attend in person at the grievance appeal hearing to achieve those aims and there was nothing less discriminatory that have been done instead. The indirect claim fails. Reasonable adjustments (Equality Act 2010 sections 20 and 21 against all[152]Did the respondents know or could they have reasonably have been expected to know through actual and or constructive knowledge that the claimant had the[153]The Tribunal determined that the respondent did not know nor could the respondent have reasonably been expected to know that the claimant had a disability for the reasons set out above. The Tribunal was not satisfied on the evidence that the respondents knew or could be reasonably been expected to know that the claimant was likely to be placed at a disadvantage. In the circumstances the Tribunal did not find that the duty to make reasonable adjustments arose. The reasonable adjustment claim fails.[154]In all the circumstances the constructive unfair dismissal succeeds. A further hearing will be listed to determine remedy.[155]All other claims fail and are dismissed.