Mr A Blackmore v FedEx Express Transport Ltd: 1302765/2024

EMPLOYMENT TRIBUNALS

Case No 1302765/2024

Between

Mr A BlackmoreClaimant

FedEx Express Transport LtdRespondent

Before

Employment Judge Flood

In person for claimant

Mr Gill (instructed by Counsel) for respondent

Date 2 July 2025

JUDGMENT

The complaints of unfair (constructive) dismissal; direct disability discrimination; and failure to comply with a duty to make reasonable adjustments (contrary to ss 13, 20 and 21 of the Equality Act 2010 (“EQA”)) are not well founded and are dismissed.

REASONS

[1]By a claim form presented on 13 February 2024 the claimant brought complaints of unfair dismissal and disability discrimination against the respondent. The respondent defended the claim contending that it had not dismissed the claimant, but he had resigned and denied any disability discrimination.

[2]There was a preliminary hearing for case management before Employment Judge Perry on 12 July 2024 where particulars of the complaints the claimant wished to bring which were not clear from the claim form, were discussed. The claimant provided particulars of the acts he wished to rely upon in respect of the various complaints and these were recorded in a draft list of issues. At that point the respondent conceded that the claimant was disabled as a result of Epilepsy but did not admit that this was the case in relation to a mental health impairment. On 24 September 2024 the respondent confirmed that this condition was also conceded as a disability, albeit that the respondent did not admit that it has knowledge of this disability. Therefore the issues that had been identified at paragraphs 1.25 to 1.28 were no longer in dispute.

[3]The claimant clarified during the hearing that in relation to the complaint of direct discrimination identified at paragraph 1.11, that he wished to clarify that it should read ‘epilepsy symptoms’ rather than ‘seizures’, as he had not had a seizure since 2012 as his condition was controlled by medication. He did experience symptoms which he was able to manage and this is what had occurred on the dates in question. He also clarified that the allegation recorded as one of direct discrimination at paragraph 1.36, 2 below than on 14 November, C was allowed by AM to attend work with symptoms of Epilepsy, was not in fact brought as a complaint of direct discrimination, but rather was a background fact to his other complaints. In particular C’s contention was that if he had been prevented from coming to work that day, he would never have resigned. The Tribunal acknowledged this and referred back to the comments of Employment Judge Perry at paragraph 1.13 about the difficulty of this allegation in light of the allegation about not being permitted to work made at paragraph 1.36, 1. In addition the issue recorded at paragraph 1.37 referencing harassment was not a suggestion of an additional complaint of harassment that needed to be determined and so was not something considered by the Tribunal.

[4]The final list of issues to be determined by the Tribunal, based on that draft list of issues (“List of Issues”) (and the clarifications above) is set out below and was referred to throughout the hearing. The evidence was heard over three days from 23 to 25 April 2025 and the parties attended to give their submissions on Monday 28 April 2025. The hearing was then adjourned for a reserved decision to be made and the rest of that day was spent by the Tribunal making the decision. Whilst the substantive deliberations were completed during this period, the written decision and reasons had not been finalised. Unfortunately due to an unusually heavy caseload, it was not possible for time to be found out of the Tribunal’s list for this task to be completed until 26 June 2025. Employment Judge Flood apologises to the parties for the delay in the completion of the written judgment and reasons. Documents before the Tribunal

[5]An agreed bundle of documents was produced for the hearing and where page numbers are referred to below, these are references to page numbers in the bundle. At the beginning of the hearing the claimant made an application to add an additional document, namely an e mail dated 9 November 2023 from him to Mr Preston. The respondent did not object to this application so it was added as a new document numbered page 287. The claimant also sought disclosure of a return to work document and any related documentation about his absence from work in September 2023. He had asked for this already along with a related request about his absence in March 2023. The respondent had provided a copy of a return to work discussion form held on 10 March 2023 (pages 270-71) but stated that no such documents could be found in relating to the September absence. The Tribunal declined to make an order for disclosure on the basis that the respondent contended it did not have it having conducted a search. The claimant was made aware that he is free to ask questions of the respondent’s witnesses about this document, its absence and the reasons for this and make such submissions as he wishes about this to the Tribunal.

[6]We also had a Cast List and Chronology included within the Bundle.

The Issues

[7]The issues to be determined by the Tribunal were as follows: Time limits 1.21 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before Thursday 28 September 2023 may not have been brought in time. 1.22 Were the discrimination made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.22.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.22.2 If not, was there conduct extending over a period?

1.22.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.23 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

1.23.1 Why were the complaints not made to the Tribunal in time?

1.23.2 In any event, is it just and equitable in all the circumstances to extend time? 1.24 Was the unfair dismissal made within the time limit in section 111 of the Employment Rights Act 1996? The Tribunal will decide:

1.24.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination?

1.24.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

1.24.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.24.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? Disability The claimant was a disabled person at the relevant time under section 6 of the Equality Act 2010 as a result of Epilepsy and a Mental Health impairment. 1.25 Does the claimant have a physical or mental impairment, described above? 1.26 If so, does the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? 1.27 If so, is that effect long term? In particular, when did it start and:

1.27.1 has the impairment lasted for at least 12 months?

1.27.2 is or was the impairment likely to last at least 12 months or the rest of the claimant’s life, if less than 12 months? N.B. in assessing the likelihood of an effect lasting 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. See the Guidance on the definition of disability (2011) paragraph C4. 1.28 Are any measures being taken to treat or correct the impairment? But for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? Reasonable adjustments: ss. 20 & 21 EqA 1.29 Did the respondent apply one of the following provision(s), criteria and/or practices (a/the provision)? 1.30 See paragraph (1.12 & 1.17) below 1.12 He also appears to argue the acceptance of his resignation was a the failure to make reasonable adjustments, the PCP on my understanding being the acceptance of resignations without challenge time to reflect. 1.17 The respondent accepted the claimant’s resignation apparently without challenge. The claimant accepts he did not seek to retract the resignation but states that was because of the impact of his mental health issues of which the respondent was aware. No potentially fair reason is advanced. 1.31 Did a physical feature / absence of an auxiliary aid / or the application of a provision put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in one of the following ways 1.32 See paragraph (1.12 & 1.17) above Could one of the following adjustments raised by the claimant have avoided the disadvantage? 1.34 See paragraph (1.12 & 1.17) above 1.35 Did the respondent not know, or could the respondent not be reasonably expected to know that the claimant had a disability and was likely to be placed at the disadvantage set out above? Direct discrimination s. 13 EqA 1.36 Did the respondent treat the claimant in one or more of the following ways? 1.36.1 See paragraph (1.11) above 1. On 8 (& 9) March and 14 (& 15) September 2023 He was not permitted to attend work/sent home from work having suffered seizures epilepsy symptoms by Harvey Preston and the claimant was not permitted to return to work the following day 2. On 14 November 2023 Contrary to what has happened in previous incidents when the claimant had epilepsy symptoms he was allowed to attend work by Adam Martin and having done so the events that led to the termination of his employment occurred 1.37 If so was that treatment harassment? 1.38 If not was the claimant treated by the respondent less favourably than it treated or would have treated the comparators? 1.39 A hypothetical comparator only is relied upon. 1.40 If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 1.41 If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment? Unfair dismissal Constructive dismissal 1.42 It is disputed that the claimant was dismissed or entitled to treat him/herself as dismissed? 1.43 The Tribunal will need to decide if the respondent did the following things: 1.43.1 gave an unreasonable instruction, refused to comply, and threatened the claimant with dismissal as a result 1.44 Did that/they breach the implied term of trust and confidence? The Tribunal will need to decide:

1.44.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

1.44.2 whether it had reasonable and proper cause for doing so.

1.44.3 if the respondent was otherwise guilty of conduct which was a significant breach going to the root of the contract of employment, or which shows that the respondent no longer intended to be bound by one or more of the essential terms of the contract, such that the claimant was entitled to treat him/herself as discharged from any further performance.

1.44.4 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.

1.44.5 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. Remedy – Unfair Dismissal 1.45 If the claimant was unfairly dismissed reinstatement, re-engagement, and compensation will need to be considered. 1.46 Does the claimant wish to be reinstated to their previous employment/reengaged to comparable employment or other suitable employment? 1.47 Should the Tribunal order reinstatement or re-engagement? The Tribunal will consider in particular whether either is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 1.48 If re-engagement is to be ordered what should the terms of the reengagement order be? 1.49 What basic award is payable to the claimant, if any? 1.50 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 1.51 If there is a compensatory award, how much should it be? The Tribunal will determine the matters set out below. 1.52 In addition it will need to decide

1.52.1 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

1.52.2 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

1.52.3 Does the statutory cap of fifty-two weeks’ gross pay or £115,115 apply? Remedy – discrimination/victimisation/protected disclosures 1.53 The Tribunal will need to consider for the factors for compensation set out below. 1.54 In addition it will need to consider :-

1.54.1 What injury to feelings has the discrimination/detrimental treatment caused the claimant and how much compensation should be awarded for that?

1.54.2 Has the discrimination/detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that? for discrimination or victimisation

1.54.3 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

1.54.4 Should interest be awarded? How much? Remedy – compensation 1.55 If there is a compensatory award, how much should it be? The Tribunal will decide:

1.55.1 What financial losses has the dismissal caused the claimant?

1.55.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

1.55.3 If not, for what period of loss should the claimant be compensated?

1.55.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

1.55.5 If so, should the claimant’s compensation be reduced? By how much?

1.55.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

1.55.7 Did the respondent or the claimant unreasonably fail to comply with it?

1.55.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? Remedy – generally 1.56 The tribunal will also need to consider if the respondent has breached any of the claimant’s rights to which the claim relates, it may decide whether there were any aggravating features to the breach and, if so, whether to impose a financial penalty and in what sum, in accordance with section 12A Employment Tribunals Act 1996

Findings of Fact

[8]In the judgment, the Tribunal has used initials to identify the people listed below rather than their full names in the interests of brevity. Other terms used may also be defined in a similar manner through the judgment. Witnesses and other individuals

[9]The following people attended to give evidence on behalf of the claimant: 9.1.1 The claimant (‘C’)

[10]The following people attended to give evidence on behalf of the respondent, (‘R’):10.1.1 Mr M Wheeler (‘MW’),Station Manager (Exeter)

10.1.2 Mr K Hatch (‘KH’), Manager Station Operations – grievance manager

10.1.3 Mr A Sparks (‘AS’), Night shift Supervisor

10.1.4 Mr A Martin (‘AM’), Operations Supervisor

10.1.5 Mr H Preston (‘HP’) Operations Manager

10.1.6 Mr P Sullivan (‘PS’)Senior Manager Operations - grievance appeal manager

[11]The following other individual employees of R were referred to during the evidence:11.1.1 Ms T Sharpe (‘TS’);

11.1.2 Mr A Serbov (‘AdS’), Operations Supervisor

[12]In order to determine the issues, it was not necessary to make findings on all the matters heard in evidence. We have made findings though not only on allegations made as specific complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact on the balance of probability:12.1 At all relevant times C was a disabled person for the purposes of section 6 EQA as a result of Epilepsy and a Mental Health impairment. He manages his Epilepsy by way of medication and by taking action when he experiences symptoms and as a result of this, he has not had a seizure since 2012 (see page 82 for discharge letter following that episode).

12.2 R is a transport company and part of the Global FedEx Group, collecting and delivering parcels throughout the United Kingdom..

12.3 C started work with R on 6 September 2021 as a Collection and Delivery driver. R’s Sickness Policy

12.4 The Tribunal’s attention was drawn to an extract from R’s Attendance Policy at pages 85 to 86. Although incomplete, this set out three stages for addressing sickness absence including the steps that R could take such as the issuing of an attendance letter and up to dismissal. It also included the following provision: ‘3.12 Disability Discrimination If a short or long-term period of absence (including lateness) is suspected to be caused or directly related to a disability which is covered by the Equality Act 2010, the Manager must consult with an HR Specialist.’ The policy further made reference to a possible referral to R’s Independent Occupational Health Service Advisors for short and long term absence ‘when the Company considers it necessary’ to request that advice.

12.5 R’s practice in the event of a driver being off sick one day, when it was unclear whether that person would remain off sick was that one of the managers or supervisor would call the individual later in the afternoon to check the position. If an individual was unsure whether they would be fit to attend, the manager would pencil that employee in as ‘unconfirmed’ and would try and make arrangements for the delivery run they were allocated to be covered. However if an employee did in fact attend for work, there would always be duties for them to carry out as R was ‘desperate for every driver they could get on the road’. BUPA Health questionnaire

12.6 Around the time his employment commenced C responded to a BUPA Health questionnaire disclosing his condition of Epilepsy and a telephone review took place following which he was assessed to be suitable for employment with R. At page 83 a letter from BUPA dated 6 September 2021 confirmed that: “Following telephone review with [C] he agrees the business to be advised. He has a long term health issue of epilepsy which is managed with medication and medical review, this is described as stable and no adjustments are advised at this time.” C contended that R should have carried out a risk assessment or agreed to put measures in place once they became aware of his Epilepsy but this was not done. R agreed this was not done but that the BUPA review had identified C’s Epilepsy and concluded that no adjustments were required and C was fit to work. None of the managers that gave evidence before the Tribunal were aware that Epilepsy could be classed as a disability under the Equality Act 2010. C agreed that during his period of employment the position with regards to his Epilepsy had remained broadly the same as the position this review was carried out. C’s Mental health impairment

12.7 As well as his Epilepsy, C is a disabled person as a result of a mental health impairment. C says he discussed his mental health with MW (he says in around April 2023 but admitted that he was unsure of the precise date) mentioning struggles with work and matters going on outside work. He said MW was sympathetic and handed him a card with R’s helpline number on it which he subsequently contacted but they were not offering services he could use. Around this time and as a result of the conversation with MW and contacting the helpline, C says he then consulted his GP who referred him to Talkworks regarding his mental health. C has been receiving Cognitive Behavioural Therapy (CBT) for some time. MW accepted that C had raised issues of mental health with him but could not the recall details but that as it was his standard practice should such a matter arise to give an employee details of R’s Employee Assistance Programme (‘EAP’), he would have done this. We accepted broadly C’s account of the discussions with MW and subsequent contacting of his GP, although we find this must have happened before his period of sickness absence in March 2023 (see below) as a referral to counselling is mentioned at this time. C acknowledged that he did not make HP or any other managers aware of his mental health issues at this time. MW also did not tell any of the other managers of C’s mental health issues. Sickness absence in March 2023

12.8 On 8 March 2023, C attended work as usual but within an hour of starting work started to have symptoms of Epilepsy (not being able to grip things, getting pins and needles). C’s usual practice to prevent the onset of a seizure when he had such symptoms upon waking was to go back to bed, and this has worked for him for the previous 12 years. C gave evidence that he approached AM to advise him of what he was experiencing and that AM told him he could not drive home and that he should phone his wife to arrange to pick him up. C said he was asked to wait in the rest room until she arrived and said he was left alone for 20 minutes until she arrived and was not checked on. AM said he could not recall much detail of that day other than C telling him his was unwell and had to go home which he agreed to, but that it was C’s decision to go home. We find that C did inform AM that he was experiencing symptoms of Epilepsy, but not a seizure itself, on this occasion and AM agreed with C’s request that he go home and rest. The issues around whether or not C was left alone whilst waiting for a lift are not directly relevant to the issues this Tribunal has to decide but we accept that C was left without supervision at this time whilst he waited for his wife to collect him. C was absent from work for the rest of that day and also the following day.

12.9 One of the issues in dispute in C’s claim is that during this period of absence (8 & 9 March 2023), C says he was informed by HP that he was not permitted to attend work/sent home from work and was not permitted to return to work the following day. In relation to 8 March 2023, C does not now seem to pursue an allegation that HP sent him home from work on 8 March, rather he says it was AM. As above, we found that it was agreed by AM that C should go home from work sick on this occasion after C informed him he was experiencing symptoms of Epilepsy. C did not address the events of 9 March 2023 at all in his witness statement but when asked about this allegation in cross examination, C gave evidence that it was during a conversation with HP by telephone on 8 March 2023 that he was told by HP that as R was unsure whether he would be back in work the following day, that they had arranged for his round to be covered. C said he then told HP he would take the following day as sick leave. C denied that he told HP that he was not fit for work the following day but said that having heard from HP that his delivery round had been covered that he told HP that he would take the following day as sick leave (mentioning that it was a Thursday and Friday so close to the weekend). HP could not recall details of this particular conversation although does recall speaking to C on at least one occasion by telephone and C advising HP that he was unable to come in and work as he was experiencing symptoms associated with Epilepsy. HP stated that if C had informed him that he was still unwell, he may have covered the delivery route on the assumption C would not be in work, albeit if C did attend, there would be other work for him to do in any event.

12.10 We find that C was not informed by HP on either 8 or 9 March 2023 that he was not allowed to attend work. C informed AM on 8 March 2023 that he was unwell and went home sick with AM’s agreement. C then informed HP during a conversation later than day that he was unsure whether he would still be unwell the following day (as his symptoms depended on how he felt when he woke up), at which time HP informed C that he would arrange for his delivery route to be covered. This was not the same as informing C that he could not attend work at all, and was rather a precautionary arrangement to ensure the round was covered in the event C was still unfit to attend work. C then chose to take the next day as sick leave as well. We find this in part because, if C had in fact been prevented from attending work by HP, he would have mentioned this and it would have been noted on the return to work discussion form that took place that very next day (see below). C himself acknowledged in the hearing that when he knew his round was covered, he told HP that he would take the next day as sick leave.

12.11 On C’s return to work on 10 March 2023, a return to work discussion took place between him and AM and a template document filled in to record that discussion was shown at pages 270-271. This document records that the first day of absence was due to symptoms of Epilepsy and the second day of absence was noted as being caused by ‘No enthusiasm resulting from an allegation made (depressed)’. We did not hear further detail of precisely what this related to. This document also noted that C had a ‘Referral for some councilling [sic]’. A number of boxes in the form were completed including one which asked whether C was able to carry out normal duties and hours, to which ‘Yes’ was noted and the box which asked whether reasonable adjustments were required was left blank. It recorded that no action would be taken in relation to this absence (the other possible actions that could be taken appeared to be the issuing of a Letter of Concern; Further Investigation or Further Disciplinary. It was also noted again at the bottom that C ‘had been referred for some councilling [sic]’. C claimed that this meant that AM on behalf of R had suggested to C that he should attend counselling but the Tribunal preferred the interpretation of AM that he was simply recording that C had told AM that he has been referred by health professionals for some counselling. This is also more consistent with the findings of fact above about the earlier discussions with MW. There was no further discussion at this time about the nature of C’s mental health issues. There was no note of any discussions about being notified by HP not to attend work and this persuades us that this did not take place as C alleged, rather it was C’s choice not to attend work as he was unwell. Letter of Concern

12.12 The claimant had a further absence on 31 March 2023. These three absences in March led to C being issued with a letter of concern dated 4 April 2023 which was shown at page 84. This letter referred to a meeting being held on 3 April 2023 which we take to be a further return to work meeting. There was no similar template note of any return to work discussions as the one that occurred earlier in March 2023 but we find that following such a return to work discussion, R issued C with this letter of concern. The letter informed C that his 3 occasions of absence across 3 months was ‘considered excessive and a cause for concern’. It stated that improvement was required and he was expected to have no more than 1 further occasion of sickness absence over the next 9 months, to the end of December. No distinction was made in relation to the reasons for the absences in question here with C contending that the absence relating to his Epilepsy should not have been counted. AM was unaware that Epilepsy was a disability at this time and C did not raise this with him or anyone after receiving this letter. However as this does not form part of the complaints made to this Tribunal we have not considered it further. No referral to OH was made at this time and it does not appear that any HR advice was sought. C also did not make the allegation that is made later that on at least one of these three days of absence, he was prevented from working by HP.

12.13 The claimant was absent from work due to sickness on other occasions on 21 June 2023 for 1 day and on 3 August for 7 days. It is not clear what discussions took place if any around such absence. From the later letter sent to C relating to absence (page 88), it appears that such absences were due to a swollen foot and knee and then damage to knuckles and feeling sick. Sickness absence in September 2023

12.14 The claimant had a further period of absence on 14 and 15 September 2023 which was also related to his Epilepsy symptoms. The Tribunal did not have sight of any return to work documentation that had been completed following this absence and as noted above, C had requested copies of this to be provided to him during these proceedings but R confirmed it did not have any such records. AM, who was C’s direct line manager was absent from work at this time and did not conduct such a meeting, so this may explain the lack of any documentation. Again C makes the same allegation about being informed by HP on 14 & 15 September 2023 that he was not permitted to attend work and was prevented from returning to work by HP. When asked about this in cross examination C gave evidence that on 13 September, he woke up and was experiencing Epilepsy symptoms and when he phoned work, HP told him he should not come to work. He said he also had a chat with HP and said that it depended on how he felt on the next morning as to whether he could commit to attending on the next day or not and he was again told not to come into work. C admitted that on neither occasion had he suggested to HP that rather than not attending work that he simply come into work late. HP denied that he had ever informed C that he should not attend work. His evidence was that C had phoned in and said he was unable to attend work due to experiencing Epilepsy symptoms. HP told us that he would not have informed any employee that they should not attend work as it was in his view the employee who had responsibility for informing C whether they were fit to attend work or not.

12.15 We find that C was not informed by HP on either 14 or 15 September 2023 that he was not permitted to attend work due to his Epilepsy symptoms. We accepted the submission of R on this issue that it was essentially C’s responsibility to inform his managers at R on any given day whether he was fit to attend work or not. On these two occasions we find that C informed R that he was experiencing symptoms of Epilepsy and he then chose not to attend work (no doubt correctly) and took this as sick leave. There is no compelling evidence that on this or the previous occasion in March 2023 that HP ever told C he was not allowed to attend work and given the findings above, we conclude this is inherently implausible. Again C did not address this in his witness statement at all. He did not mention any detail of the conversations during the grievance process. When C later posts about the events from the day of his dismissal on Facebook, he talks about phoning in sick, not being prevented from working. We find the interpretation C is now giving to this and the previous conversation he had with HP was formed after the events of 14 November 2023 when C did attend work when perhaps he should not have due to his Epilepsy symptoms. Ultimately on all 4 occasions, it was C’s own decision not to attend work on ill health grounds, rather than any instruction from HP that he should not do so. Sickness absence and issue arising November 2023

12.16 C was absent from work between 6 and 10 November having contracted Covid 19. It appears that an issue arose on the Thursday of that week when C spoke to another supervisor, AdS about whether he was fit to return to work the following day. C sent an e mail to HP to complain about this incident on 9 November 2023 (which was a document that C produced during the course of the hearing) where he complained about AdS telling him that he should have been in work that day. In that e mail C said he did not want to raise a grievance. HS could not recall receiving that e mail but accepted having seen the e mail that he must have received it. This factual allegation does not form part of any of the complaints to this Tribunal so other than to record the above, it has not been considered in any further detail. Absence review letter November 2023

12.17 On 13 November 2023, at a return to work meeting when C came back to work after his absence with Covid 19, C was issued with a letter from AM inviting him to attend a formal stage 1 Absence Management Meeting under R’s attendance policy which was scheduled to take place on 15 November 2023 (page 88). This letter listed the periods of absence that C had taken that calendar year to date (amounting to 14 days on six separate occasions which are all referred to above). The letter enclosed a copy of the previous Letter of Concern, together with an extract from the Attendance Policy and a copy of the return to work discussion form from March 2023. The letter informed C that a possible outcome of the meeting was that he could be issued with a stage 1 Attendance Letter.. Issues with TS

12.18 C also recounted an incident that took place on 13 November 2023 with another employee of R, TS, who had made a comment about his sickness absence the previous week when he enquired about something. C also mentioned that she had been abrupt with him when he asked whether he could return a parcel that was a distance away from his round and she said ‘do as you want’. The relationship at work between C and TS was clearly fractious as he also recounted an incident where he felt she had removed him as a Facebook friend maliciously which he challenged her on. There was also reference to an informal grievance that C had raised about TS to HP that HP considered had been addressed and HP acknowledged that C was not the only employee who had an issue with TS. However, on another occasion in August 2023, TS had apparently persuaded C not to hand in his resignation. The matters involving TS whilst having a loose background connection to the events around this time, do not have any direct relevance to the matters we at this Tribunal had to consider so we have not examined these any further. Previous threat to resign and other incidents referred to

12.19 It was also not in dispute that C had previously threatened to resign his employment on a second occasion with R before the events of 14 November 2023. He referred to one occasion when he was going to resign and HP talked him out of it which he said he respected HP for. HP also recalled this discussion taking place and when C said he had had enough, HP had a discussion with him talked through what the issues were (HP could not recall the detail of these) and C agreed that he would stay and did not resign at this time. AS said his recollection was that C had threatened to resign on about five occasions and the one involving HP, was an occasion where C had gone as far as to go and get his bag and leave but had then gone to see HP who talked him around.

12.20 The Tribunal also heard evidence about an incident involving C and AS on another occasion where there was a shortage of drivers and C shouted out ‘any chance of getting some more staff?’ to AS, which led to AS raising the issue with C. C said that at this time AS ‘marched’ him to the office and said he had disrespected AS in front of other staff. AS recalls the incident and said he had been concerned because on this day, there was a staff shortage and a request had been made for drivers to take additional work after they had completed their own round. He recalled that drivers were not too happy with the request and C said in front of the drivers, but aimed at him ‘any chance of getting some more staff’. AS felt that this was not a helpful comment to make in front of all drivers, so he asked to speak to C privately about this, which he did. Again, this was not a matter directly relevant to the issues in dispute so we have not explored this further.

12.21 C had also put a request in to HP to change his route from the Chard to the Plymouth route and was told if a vacancy came up that he would consider it. C appears to have mentioned this again to AS in late October/early November 2023 stating to AS that his route did not have enough individual stops and he wanted to move to the Plymouth route which had more stops (the number of stops made affects bonus entitlement and more stops leads to a higher earning potential). AS and AM discussed this but were concerned whether C would be able to complete all the stops as he had previously complained that he was too busy on his current round. It is not clear whether this was communicated to C before he resigned. Events of 14 November 2023

12.22 On the morning of 14 November, C woke up as normal but started to feel symptoms of Epilepsy within a few minutes experiencing shakes and pins and needles. He decided he needed to go back to sleep to counter these symptoms so he called in to work at 06:11 am. He said he expected HP to answer and to be told by him not to attend work, but instead that AM answered the phone and told C he could have a short sleep so long as was in work at 07:30 am. C referred to this being a practice he had adopted when he used to work in a similar role for Royal Mail. AM’s account of the conversation was that he answered the phone to C who told him that he was going to be 30 minutes late for work as he was experiencing Epiliepsy symptoms. AM said he told C that was fine and he could start later, but he did not mention a specific start time of 07:30.

12.23 C attended for work at around 07:15am. His account of how events unfolded from there is that when he reached his work station and began to load items on to his van, he noticed that there was ‘an abnormal load’ which he believed would have taken him over the weight limit. C’s witness statement gives a truncated account of events stating that he called AS and AM over to raise this and then he was’ ‘threatened by [AS] that I either take the workload out or face instant dismissal’ C said he did not believe the workload was achievable and there was no bulk driver so he felt bullied, intimidated and stressed. He denied that AS said to him ‘oh come on get the load out don’t be like that’ and said that ‘after 10 mins to an fro’ he told AS that he would ‘resign with dignity not through choice’ At which point C said that AS walked over to his work station, collected some paper and asked C to write his resignation letter which C proceeded to do leaning against a box on his loading bay.

12.24 C acknowledged in answers to cross examination that he was aware of the weight limit of 1000 kg and that drivers could ask to have their van loads weighed if they were concerned about a load being over this but he did not do so. He also said that on occasion he could ask to leave packages behind if too bulky and they would be taken on a separate bulk run (although C suggested this rarely happened on his route). He admitted that during the exchange, AS had told C he always did a good job and that AS may have said that C had raise this issue before and always in the end went and did his deliveries with no problem.

12.25 AM’s account of events was that C came to him and told him he was concerned about the bulk of his freight. AM said that on initial assessment by him, it did not appear any larger than usual but he offered to see if a bulk lorry was going to the area to see if one or two of the items could be taken off and he then returned to the office. AM said that C then arrived at the office and said again he had too much bulk and AM offered to come and assess it in 5 minutes which C did not accept, so AS went with C to assess the situation.

12.26 AS’s account is that he entered the office and saw C waiting to speak to AM and as AM was pre-occupied, MW asked him to go with C to see what the problem was. AS said that he went with C and C told him he had too much bulk, and mentioned one package which was 40kg and too heavy. AS said from his assessment the load looked fine and told C who was unhappy with his response. AS said that he told C that if was unable to complete all his deliveries he could bring items back and that he, ‘reminded him that he had been working on this route for a long time and always did a good job in terms of getting his deliveries done’

12.27 AS denied telling C there was no bulk driver that day and said that C did not ask for the van to be weighed or request a barrow to assist him with loading. AS said that this sort of behaviour from C was ‘quite a common occurrence’ where C had ‘moaned about how he couldn’t take his van out but then had eventually started his delivery run’. AS said he thought this morning would follow this pattern and he had a conversation ‘back and forth’ with AS reminding C that this had happened before and C usually completed his round anyway. AS then said that C became agitated and said words to the effect of ‘oh I’ve had enough’. AS said he made efforts to diffuse the situation and said something along the lines of ‘don’t be like that just get your stuff on’. He then said C paced around the warehouse and again said he had enough to which AS asked him what he meant. AS said that C then said words to the effect of ‘I’ve had enough and I’m going to walk’. AS said he made further efforts to calm C down and repeated his offer that he could bring deliveries back if the round could not be completed. He said he told C that he had been on this round for a long time and he usually did a very good job. AS told us that C then repeated a third time that he had had enough and he was going to go.

12.28 AS said that he reached the view that C was threatening to leave and simply walk off site. Although he denied using the words ‘instant dismissal’ AS said he told C that if he were to walk off site without authorisation, that it could be gross misconduct which could lead to disciplinary action up to dismissal. AS then said he told C that if he was serious about wanting to leave, that he should provide a written resignation instead to which C responded to the effect of ‘Yeah, I’ll do it I’ve had enough’. When asked about his rationale for acting as he did, AS explained that he was concerned about the amount of times that C had said he was going to walk during the conversation and felt that if he just walked out and left site, it could be a gross misconduct offence which could cause an issue with a future reference. He felt that if C was determined to go, that it would be a better way to leave by resigning rather than just walking out.

12.29 AS said he asked C whether he was sure and C said he was so AS went to get him a piece of paper from the office. He said whilst in the office he spoke to MW and HP about and told them that C had said he wanted to resign. AS said he was told by MW that if C was adamant he wanted to resign, then he should let him. MW also gave evidence of this conversation, having heard AM and AS discussing the situation arising with C. AS then walked back and handed the piece of paper to C, who wrote his resignation, and brought it to the office. The resignation letter written by C was shown at page 89 and stated as follows: ‘Please take this notice as my intention to quit/terminate with immediate effect. I give reasons of bullying during sickness, being asked to do unreasonable lifting duties’

12.30 We find that both AM and AS’s account of what occurred up to the point of C writing his resignation is more reliable and inherently plausible. We make this finding because:12.30.1 C’s initial contention was that AS threatened him with instant dismissal as soon as he raised the issue about the load being excessive. We found that it was inherently implausible that this would take place in a situation where a manager was trying to persuade C to start a delivery. During cross examination, C changed his account on matters acknowledging that there was much more of a discussion about the load before any mention of misconduct/dismissal was made.

12.30.2 C made no mention of being told he had to take the load out or be dismissed in his handwritten resignation letter. He did refer to the issue around load, describing ‘unreasonably lifting duties’ and he also mentioned bullying during sickness (perhaps referencing the e mail he had sent earlier that week regarding AdS). Therefore had AS made mention of being dismissed if he did not take his load out, we conclude C would have said something of this nature.

12.30.3 C was aware that drivers were able to raise concerns about the weight of their loads and indeed have them weighed. This make it unlikely that C would have been threatened with instant dismissal as soon as he raise the issue of load weight.

12.30.4 AM’s and AS’s account of events remained consistent throughout the grievance interviews they attended to the Tribunal hearing itself (see below). Whilst C’s primary contention relating to be asked to take an unreasonable load out, the account of events shifted to focus on not being persuaded out of resigning by managers and the fact that had he not attended work that day, none of the events would have occurred. The minor inconsistencies between the accounts of AM and MS and what HP and MW recalled of the day related to issues that did not form the main focus of our fact finding and were peripheral. It is also not unusual for different individuals to have slightly different recollection of the precise details of events in this way and this did not affect our assessment of their credibility.

12.31 After C had written out his resignation letter, he walked to the office to hand it in. C believed that AS had radioed through to the office as when he arrived there, those in the office (HP, AM and MW) made what he described as a ‘gangway’ and moved apart to let him through. C said he handed his letter to AM and asked him to get HP to phone him before 2:00pm and then he left the building.

12.32 AM’s evidence was that C arrived at the office and presented him with a letter of resignation, that he briefly looked at it and asked C if he was sure, to which he replied he was. AM then said he placed the letter on HP’s desk. He said that C did not seem particularly distressed and that he was not surprised that events had occurred this way, as C had threatened to resign before. AM did not recall that C asked him to get HP to call him and denied that he or anyone else had move apart and made a gangway to enable C to enter. MW said his recollection was that it was AS that had given the letter of resignation to HP, but that this may be wrong. MW also told us that HP handed him C’s letter of resignation later that morning and MW then consulted HR to determine what to do next.

12.33 We find as a fact that having written out his resignation, C walked to the office on his own and handed his resignation to AM. MW was also present at the time. We were not able to find that AS had radioed through to the office and that HP, AM and MW made a gangway and left a space for C to walk through. C may have had that perception due to his heightened feelings of tension, and the arrangement of where people were standing and sitting may have added to this but we did not find any deliberate action in this regard. We also accept that AM asked C whether he was sure before taking the letter from C who said that he was. AM had been aware of C threatening resignation before and therefore it is likely he at least checked that this was what C wanted. No further discussion took place after this. C then left work and went home.

12.34 C wrote two very similar e mails to HP both sent at 08:32 am (page 94 and 95) in which he stated as follows, ‘I was given two options this morning by [AS] to either go out on delivery with an unfair workload (many items 40kg+) or to go home and face instant dismissal. This lead to the only option I had available to me resign with dignity intact which I did not in the office but on a piece of paper provided by AS.’ The letter went on to state that AM had accepted his resignation ‘without any question’ and that he felt he was not wanted in the company. The letter went on to refer to the e mail he had sent HP the previous week about AdS and the incident referred to above involving TS. The letter referred to C having Covid and that R had done nothing to assist him back to work but instead had, ‘put a notice in front of me for a stage meeting’ He said that HP could not look at him as he walked out and complained that HP had let him do this without union representation and that he was suffering with the after effects of Covid 19. He went on to reference the fact that two of his sickness absence periods were related to his Epilepsy symptoms which had been managed for 10 years now, further stating, ‘you would not agree to me coming in say 30 mins later going back to bed waking normal you made me go sick (unlike Royal Mail who accommodated for my split) UNTIL today when you were played using the same tactic I was 15 mins later but rang in advising I’d be late this would have taken two of my absences off and no loss of earning’. Neither of the two e mails sent by C said anything about the claimant having changed his mind or that he wanted to retract his resignation. It does appear that C tried to phone R’s premises during the day, but he did not actually speak to any of his former managers.

12.35 C also contended that later that morning when he tried to log on to the company portal at 10:00 am and found that all his login details had been removed and he could not access the system. MW denied that he had done this stating that he or any manager on site were not able to control or revoke anyone’s system access. He said there was a leaver’s process to complete which involved completing paperwork which goes to the wages department, who then processes the individual on the system as a leaver. MW said he had since seen an e mail which suggested that C’s system access had been revoked at 1pm in the afternoon on 16 November 2023. MW’s evidence on this was persuasive and we find that C must have been mistaken about his access being removed on that day. Again this is not directly relevant to the issues this Tribunal has to consider in any event.

12.36 Later that day, C made a Facebook post referencing the day’s events as follows, ‘Well it looks like goodbye Fedex been with the company 2 years and as soon as I’ve had covid and returned to work I’m offered two options carry on (which I’d asked for help) or INSTANT DISMISSAL I resigned with dignity I am now claiming constructive dismissal’ In response to a comment on this post expressing sympathy, C further wrote, ‘I feel stupid I’ve a medical condition and woke unwell this morning before going in to work later. Had I phoned in sick I’d still have a job’

12.37 MW wrote to C on 15 November acknowledging his resignation (page 98) and dealing with administrative matters relating to the end of his employment. His letter also included the following statement, ‘I am concerned to note your comments on your resignation letter and will be treating these as a grievance. An independent manager will be appointed to investigate and will be in contact with you in the near future.’ C did not respond to this letter or indicate that he wished to retract his resignation. Grievance process

12.38 On 16 November 2023, MW passed C’s letters to KH (page 99) who wrote to C on 17 November 2023 inviting him to attend a grievance meeting on 23 November (page 100). This letter indicated that C would be required to discuss the nature of his grievance and to discuss possible resolutions. He was given the right to be accompanied by a colleague or trade union representative. C confirmed his attendance by e mail on 20 November 2023 (page 102) and stated that he believed there were ‘three grievances in place’ going to naming AS, TS and AdS as well as including the following, ‘AM (accepting resignation and “allowing late attendance”) HP & MW no response’ He further stated that there were other issues mentioning that R had not supported him with his epilepsy or taken into account that he was currently seeking counselling.

12.39 On 23 November 2023 and before meeting with C, KH conducted 3 meetings with AS, AM and TS. This was perhaps a surprising approach and it might have been more usual to meet with C to understand his concerns first before deciding who then to raise such matters with. Notes were taken by M Atkinson of these three meetings and her notes were at pages 104-117. During this meeting AS gave his account of events on 14 November 2023 which was broadly the same as the one given to the Tribunal although uses the word ‘sackable offence’ when referring to C threatening to walk off site. It was clear to us that some of the questions asked by KH were not as neutral as they could be e.g ‘Would you say that’s typical of him to say be hot and cold with his mood’ and it would have been better if more open questions could have been asked. AM also gave his account of the events of the day and again this is consistent with the evidence given to this Tribunal. In particular, AM’s account of the conversation that morning is that C informed him that he was going to be 30 minutes late as he needed to take time because of his Epilepsy symptoms. AM’s account in this meeting was that he was handed C’s resignation letter, took a quick look and then said ‘are you sure?’ to C to which he said yes. AM also remarked in this meeting that he was a little surprised as although C had said he was going to resign in the past, he was still surprised he had actually done it. KH’s meeting with TS focussed on the relationship issues referred to above and as these do not form part of the claim in these proceedings, the Tribunal has not considered this further.

12.40 C attended the grievance meeting on 23 November 2023 which was conducted by KH and had M Atkinson there taking notes (her notes were shown at pages 118-130). KH gave evidence that it was difficult to get straight answers to the questions he was asking C and it is apparent from the notes that some time was spent clarifying what outcome C was hoping to achieve, although he did say that he was seeking his job back or failing that some compensation. C’s account of the events on the day in question were as he recounted to the Tribunal in his witness statement in particular he said that C had to take the load as planned or face instant dismissal ‘straight out’. In some of his answers, C appeared to acknowledge that he had threatened to resign before although gave inconsistent answers to questions on this point. It appeared that C’s main complaint that upon handing in his written resignation that none of the managers stopped him. He also stated that had he not attended work on that day, he would not have resigned.

12.41 KH considered C’s grievance and decided to turn it down. He sent a written outcome to C on 8 December 2023 (page 136-137). C appealed against the outcome and PS conducted an appeal hearing with C on 19 December 2023 (notes at pages 141-144). PS rejected this appeal and informed C by a letter dated 22 December 2023 (page 146-147). Although C complains about the way in particular the grievance was conducted, as this does not directly impact any of the complaints we have had to consider, we have not examined these matters in any further detail than set out above.

12.42 The claimant commenced early conciliation in these proceedings on 27 December 2023 and his early conciliation certificate was issued by ACAS on 7 February 2024. He presented his claim form on 13 February 2024.

The Relevant Law

[13]Section 94 of the ERA sets out the right not to be unfairly dismissed.

[14]Section 95 (1) (c) ERA said that an employee is taken to have been dismissed by his employer if the employee terminates his contract of employment (with or without notice) in the circumstances in which he is entitled to terminate if not notice by reason of the employer’s conduct i.e. constructive dismissal.

[15]If dismissal is established, then the Tribunal must also consider the fairness of the dismissal under Section 98 ERA. This requires the employer to show the reason for the dismissal (i.e.: the reason why the employer breached the contract of employment) and that it is a potentially fair reason under sections 98(1) and

(2) and where the employer has established a potentially fair reason then the Tribunal will consider the fairness of the dismissal under section 98 (4), that is:

• did the employer act reasonably or unreasonably in treating it as a sufficient reason for dismissal; and

• was it fair bearing in mind equity and the merits of the case.

[16]It was established in the case of Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

that the employer’s conduct which can give rise to a constructive dismissal must involve a “significant breach of contract going to the root of the contract of employment”, sometimes referred to as a repudiatory breach. Therefore, to claim constructive dismissal, the employee must show:-(a) that there was a fundamental breach by the employer;

(b) that the employer’s breach caused the employee to resign;

[17]Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

[1997] ICR 606

. The implied term of trust and confidence was summarised as follows: ''The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.''

[18]If the act of the employer that caused resignation was not by itself a fundamental breach of contract, the employee may on a course of conduct considered as a whole in establishing constructive dismissal. The 'last straw' must contribute, however slightly, to the breach of trust and confidence (Omilaju v Waltham Forest London Borough Council

[2004] EWCA Civ 1493

[2005] IRLR 35

[2005] 1 All ER 75

[19]It was confirmed by the Court of Appeal in the case of Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

[2018] IRLR 833

in an ordinary case of constructive dismissal tribunals should ask themselves:19.1 What was the most recent act (or omission) on the part of the employer which the employee said caused, or triggered, his or her resignation?

19.2 Has he or she affirmed the contract since that act?

19.3 If not, was that act (or omission) by itself a repudiatory breach of contract?

19.4 If not, was it nevertheless a part…of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term?

19.5 Did the employee resign in response (or partly in response) to that breach?

[20]The relevant sections of the EQA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … ,…disability;” ` 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[21]Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

[23]Comparison by reference to circumstances(1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.” 123 Time limits (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable…… (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 136 Burden of proof

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. Section 212(1) EqA defines substantial as being “more than minor or trivial”. Paragraph 20 (1) (b) of Schedule 8 provides that an employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the relevant disadvantage. 21. The Code addresses disadvantage at paragraph 4.9 as follows: “‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.” 22. Paragraph 6.19 of the Code provides that employers must “do all they reasonably can be expected to do” to find out about an individual’s disability and substantial disadvantage. 23. In relation to the complaint of a failure to make reasonable adjustments, the obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is considered in the Code. A list of factors which might be taken into account appears at paragraph 6.28, namely: “• The extent to which the adjustment would have ameliorated the disadvantage.

• The extent to which the adjustment was practicable.

• The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer's activities.

• The financial and other resources available to the employer.

• The availability of external financial or other assistance.

• The nature of the employer's activities and the size of the undertaking.” but (as paragraph 6.29 makes clear) ultimately the test of reasonableness of any step is an objective one depending on the circumstances of the case.

[24]In Gallop v Newport City Council

[2013] EWCA Civ 1583

, it was noted by the Court of Appeal that in relation to knowledge of disability, knowledge was required of the facts of the employee’s disability but the employer does not need to also realise that those particular facts meet the legal definition of disability. In Department of Work and Pensions v Hall

UKEAT/0012/05

, the EAT upheld a finding of disability in circumstances where an employee had not specifically informed her employer she was disabled if it should have known of this from other information but failed to make enquiries.

[25]In Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, the Court of Appeal determined that the nature of the comparison exercise under s.20 was to ask whether the PCP put the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage if the PCP had a more substantial effect on disabled employees than on their non-disabled colleagues. In addition, in relation to whether an adjustment is effective the Court of Appeal said ‘So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.’

[26]Tribunals must consider the essential question whether a particular adjustment would or could have removed the disadvantage experienced by the claimant Romec Ltd v Rudham EAT 0069/07. However as stated in Noor v Foreign & Commonwealth Office

UKEAT/0470/10

, “although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective". As per Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

[2011] EqLR 1075 there has to be a “prospect” of the adjustment removing the disadvantage.

[27]The relevant authorities on the direct discrimination claims are as follows: Burrett v West Birmingham Health Authority

1994 IRLR 7

, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another

[2001] IRLR 377

- it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. Igen v Wong and Others

[2005] IRLR 258

- The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Madarrassy vNomura International Ltd

2007 ICR 867

- the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL,-The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] IRLR 830

[2001] ICR 1065

, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.'

Conclusion

[28]The issues between the parties which fell to be determined by the Tribunal were set out above. We have approached the issues in a different order than as set out above, but our conclusions on each of the matters in dispute is set out below. EQA, section 13: direct disability discrimination

[29]In order to decide the complaints of direct discrimination, we had to determine whether R subjected C to the treatment complained of (which is set out at paragraphs 1.36.1 (1. and 2.) of the List of Issues above and if so, go on to decide whether any of this was less favourable treatment, (i.e. did R treat C as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). We had to decide whether any such less favourable treatment was because of C’s disability or because of disability more generally.

[30]We applied the two-stage burden of proof referred to above. We first considered whether C had proved facts from which, if unexplained, we could conclude that the treatment was because of disability. The next stage would be to consider whether R had proved that the treatment was in no sense whatsoever because of disability. We also had to determine whether the allegations were presented within the time limits set out in 123(1)(a) & (b) of the EQA and if not whether time should be extended on a “just and equitable” basis. We have considered first the substance of the complaints, before returning to the issue of time limits and whether we have jurisdiction to consider the complaints. We set out below our conclusions on these matters for each allegation listed in the List of Issues above with reference to each paragraph number whether the allegation is listed: On 8 (& 9) March and 14 (& 15) September 2023 He was not permitted to attend work/sent home from work having suffered seizures epilepsy symptoms by HP and C was not permitted to return to work the following day

[31]We refer to our findings of fact at paragraphs 12.8-12.10 and 12.15 below, where we found that HP did not send C home from work nor did he ‘not permit’ C to attend for work or return to work on any of the occasions listed above. On all 4 occasions, C was unfit for work and was validly on sick leave, but this was ultimately a decision that C made on the basis of his own assessment of his health that day. On each occasion, he notified his managers in the correct manner and they agreed with the decision that C should not attend work due to ill health. This allegation therefore fails on the facts. It was entirely appropriate for R’s managers on these 4 occasions to accept and agree that C was unwell and should not attend for work on the basis of C’s self-reported sickness. There was no statement or action that prevented C from attending work, other than his own assessment that he was unwell and should be on sick leave. The complaint of direct disability discrimination therefore fails on the facts.

[32]C’s is perhaps focused on the fact that these days of absence were counted and included in the letter of concern and the subsequent letter inviting him to a meeting to discuss his attendance as part of R’s Attendance Management process (see paragraphs 12.12 and 12.17). This however was not a claim before this Tribunal. In any event, although R counted days taken by C related to symptoms of his disability within his overall sickness record, at the time of C’s resignation, it had not taken any action against C about such absence save for registering its concern on levels of absence more generally and inviting him to a meeting to discuss this. Had C not resigned his employment and the attendance review meeting scheduled for 15 November 2023 taken place, C could have made representations about whether or not should absence should count against him in relation to any adverse consequences. This did not occur. It was of concern to the Tribunal that none of R’s managers seemed to have much awareness that Epilepsy could be a disability. By the time any action was being considered, it may well have been that R had specialist HR advice to assist its managers in how to address disability related absence. However as this did not ultimately arise in C’s case, we are not able to consider this further.

[33]C’s claim for direct disability discrimination is accordingly dismissed. EQA sections 20 & 21 – claim for failure to comply with a duty to make reasonable adjustments

[34]When looking at C’s complaint under sections 20 and 21 EQA, we firstly considered the issue of when R became aware of C being a disabled person under section 6 EQA. Under paragraph 20 of Schedule 8 to the EQA 2010, an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know that the individual concerned has a disability. Firstly in relation to Epilepsy, whilst none of C’s direct managers seemed to be aware that Epilepsy was a disability, it is clear that R as C’s employer knew he had Epilepsy from the start of his employment (see paragraph 12.6 above). AM and HP also knew C had Epilepsy as C had reported absence to them related to Epilepsy symptoms. Irrespective of whether anyone at R had actively considered Epilepsy as being a disability, following Gallop above, we were satisfied that R had either actual or was fixed with constructive knowledge of the claimant having a disability as a result of Epilepsy from 6 September 2021 under Paragraph 20(1) (b) of Schedule 8 to the EQA. However for C’s complaint in relation to a failure to make reasonable adjustments, it is not in fact Epilepsy that is the condition relied upon

[35]It was therefore necessary for us also to consider the position in relation to the knowledge of disability of a mental health impairment is different. Whilst R accepts C was disabled as a result of a mental health impairment at the time of the events in question, it denies that it had any knowledge of that disability. We refer to our findings of fact at paragraph 12.7 above and we conclude that from March 2023 onwards, R was aware that C had some mental health issues. He had an informal discussion with MW about his mental health and MW gave him details of R’s EAP programme. However we were not satisfied that at this time, this was sufficient to amount to actual or constructive knowledge that C was disabled as a result of a mental health impairment. There was not at this stage we conclude, sufficient information to have put R under a duty to make enquiries as to whether this impairment amounted to a disability. The next time there was any discussion or mention about C’s mental health was on 10 March 2023 when a return work discussion between C and AM took place. We refer to our findings of fact at paragraph 12.11 above that at this time C informed AM that he had been referred for counselling. AM had also recorded that the reason for absence at least in part was in reference to C being ‘depressed’. Both MW and AM were therefore aware that C had some mental health issues and by 10 March 2023 was being referred for counselling. We conclude on the facts that this was just about sufficient for R to be put under an obligation to at least make further enquiries as to the nature of C’s mental health impairment. Whilst R did not have actual knowledge of disability as a result of a mental health impairment, we are satisfied that on the facts as found above, there was sufficient information to trigger enquiry and on that basis R was fixed with constructive knowledge of disability.

[36]As we have concluded that R was aware of disability at the relevant time, we were required to look at whether the PCP identified and relied on by the claimant was applied to him and, if so, when this took place. C relies upon a PCP of “the acceptance of resignations without challenge time to reflect’ and says this was applied to him on 14 November 2023. As to whether such a PCP existed, we refer to our findings of fact at paragraphs 12.18 and 12.19 above which appear to be conclusive evidence that far from having a practice that there was a policy of generally accepting resignations without challenge time, R had on at least two occasions in the past (and possibly more) done exactly the opposite of that and persuaded C to stay when he had indicated a intention to resign. Before C wrote out his resignation letter, AS asked him if he was sure (paragraph 12.29) and AM also asked C if he was sure when the letter was handed to him (paragraph 12.33). We conclude that what took place on 14 November 2023 was not the application of a provision, criteria or practice by anyone but a one off incident involving C and AS. Therefore C’s claim in respect of a alleged failure to make reasonable adjustments fails on this point alone. Therefore it is not necessary to go to consider the remaining issues of whether any such PCP applied put C at a substantial disadvantage compared to nondisabled people (and what that disadvantage was), considering the appropriate comparator. The Tribunal concludes however that it would not have been able to have reached such a conclusion as we had no evidence at all on the relative impact of any such policy that might have existed on people with C’s disability compared to those without. We would have been unable to conclude that the application of any policy ‘bit harder’ on those with the disability than those without. We also doubt that we could have concluded that R knew that the claimant was placed at this disadvantage at the relevant time.

[37]Given our findings and conclusions, we did not need to go on to consider what adjustments would have been reasonable to make to avoid any relevant disadvantage. C’s claim under sections 20 and 21 EQA is accordingly dismissed.

[38]As none of the complaints made under the EQA have succeeded, we do not need to go on to consider whether there was conduct extending over a period and if not, whether the claims were made within a further period that the Tribunal thinks is just and equitable. All the claims failed having been considered fully on their merits. Constructive unfair dismissal

[39]This was not a case where it was contended that this was a ‘heat of the moment’ resignation such that no resignation occurred at all. C accepts that his resignation was communicated clearly but contends that he was entitled to resign due to R’s conduct and was constructively dismissed. As there was no express dismissal in this claim, we had to consider whether C had established that he was dismissed by virtue of section 95 (1) (c) ERA in that he resigned in circumstances in which he was entitled to treat himself as dismissed.

[40]We considered the matters relied upon as being a fundamental breach of contract, looking at whether the events happened as alleged and then whether they amounted to a breach of the implied term of trust and confidence, deciding whether R behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between C and R; and whether it had reasonable and proper cause for doing so. If breach was established, we may then have had to go on decide whether C affirmed or waived any such breaches and whether C resigned in response to any breach that is found.

[41]C relies on just one matter as being a fundamental breach of contract, namely that R gave an unreasonable instruction, C refused to comply, and R threatened C with dismissal as a result

[42]We refer to our findings of fact at paragraphs 12.22 to 12.33 above. We have firstly considered whether in light of these, any of the instructions given by AS to C before his resignation were unreasonable. The essence of the complaint is that C contends he was being asked to put an abnormal load on his delivery van which he complained about and it was unreasonable for AS to have insisted he complete his delivery. We were not satisfied that C has shown that the load he was being asked to carry on that day was unreasonable. Firstly, both AM and AS when they looked at the load, did not consider it to be excessive (paragraphs 12.25 and 12.26). C was given the option by AS that if he was unable to complete his load he could bring items back (paragraph 12.26). C was also aware that in the event of real concerns about the weight of his load, he could have asked for his van to be weighed (paragraph 12.24). Significantly, C had raised issues of this nature before and on those occasions after making complaints had then gone on to deliver his load without issue. We conclude that whilst C had raised concerns that day and may have felt unhappy with the load, it was not unreasonable in the circumstances for AS to continue to ask C to continue with the deliveries.

[43]We have next gone on to consider whether C having refused to take his load was then threatened with dismissal as a result. We found as a fact (paragraph 12.28) that AS told C that if he were to walk off site without authorisation it could lead to dismissal. AS did not threaten C with dismissal at all and moreover, the reference to the possibility of dismissal was in relation to C’s statement about having had enough and that he was going to walk. Any mention of dismissal was not about C not wanting to take his load out, but because C was intending to walk out. We were persuaded by AS’s contention that the reason he suggested that C resign was because he thought if C had already decided to walk out, it would be better if he chose to resign, rather than leave without authority and face the possibility of disciplinary action and dismissal (paragraph 12.28) which could lead to an adverse reference.

[44]Therefore this allegation is not made out on the facts, and it is hard to see how what did occur between C and AS could amount to conduct calculated or likely to destroy or seriously damage the trust and confidence between R and C. In mentioning the possibility of dismissal to C and making a suggestion that rather than walk out without authority, C may wish to resign as an alternative, AS was not intending to destroy or seriously damage the trust and confidence between R and C. In the circumstances, we also conclude that this conduct was not likely to destroy trust and confidence. AS also asked C if he was sure he wanted to resign before going to get a piece of paper for C to write his resignation out on (see paragraph 12.28). C had time to consider his actions both before informing AS that he wanted to resign and before actually writing his letter of resignation. We entirely accept that C may have been feeling unwell that day – he was just recovering from Covid 19 and had experienced symptoms of Epilepsy earlier than morning. He was also being treated for a mental health condition. However even considering these factors, we were unable to find that what took place was capable of amounting to a breach of the implied term of trust and confidence.

[45]Whilst C’s resignation letter, albeit written hastily mentions being asked to do unreasonable lifting, it makes no reference to being threatened with dismissal (see paragraph 12.30). It does however mention other matters that occurred before the events of 14 November 2023 in particular the allegation of bullying. It is clear to the Tribunal that C was dissatisfied and unhappy with his work at R in the lead up to his resignation. We refer to our findings of fact at paragraphs 12.16 to 12.21. There were some issues with interpersonal relationships, C was unhappy with the route he had been allocated and his sickness record was being examined by R. He had previously considered resigning and had been persuaded on two occasions not to. Although when asked about the impact that the impending sickness review meeting had on his decision to resign, C denied that it had an impact, we were not persuaded by this response. The Tribunal have considered whether any of the events that led up to the resignation as we have referred to above, viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence by R. Looking at our findings of fact and conclusions set out above, we conclude that all events even viewed as a course of conduct, would not cumulatively amount to conduct calculated and likely to destroy or seriously damage the relationship of trust and confidence.

[46]C therefore did not resign, in response to a repudiatory breach of contract. No issue of affirmation needs to be considered as there was no breach. C was not constructively dismissed by R, it cannot be an unfair dismissal and the is claim dismissed.