Mr J Matthews v Vitality Corporate Services Ltd: 1401765/2022

EMPLOYMENT TRIBUNALS

Case No 1401765/2022

Between

Mr J MatthewsClaimant

Vitality Corporate Services Limited RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Self

In person for claimant

Miss C Davies - Counsel for respondent

Date 25 September 2025

JUDGMENT

[1]The Claim of Victimisation is dismissed upon the Claimant’s withdrawal.

[2]The Claims of protected disclosure detriment are not well-founded and are

[3]The Claim of automatically unfair dismissal is not well-founded and is

[4]The Claim of Belief Harassment is not well-founded and is dismissed.

[5]The Claim of Direct Belief Discrimination is not well-founded and is dismissed.

[6]The Claim of Indirect Belief Discrimiation is not well-founded and is dismissed.

[7]The Claim of unfair constructive dismissal is well-founded and succeeds.

[8]There will be a Polkey reduction of 100% in respect of any compensatory award in respect of the unfair dismissal finding.

REASONS

[1]By a Claim Form lodged on 27 May 2022 the Claimant asserted that he had been discriminated against on the grounds of his Religion / Belief. The Claimant applied to amend that claim on 6 October 2022 so as to add claims of unfair constructive dismissal and a claim of automatically unfair constructive dismissal pursuant to section 103A of the Employment Rights Act 1996 (ERA). EJ Emerton allowed that application to amend by letter dated 1 November 2022.

[2]ACAS Early Conciliation was entered into on 26 January 2022 and concluded on 8 March 2022. This claim has had a lengthy gestation period prior to this final hearing and has been the subject of a number of preliminary hearings (PH). There was an initial PH on 8 March 2023 before EJ Gray. Progress was made on the List of Issues (94-100) but there was an application to add a victimisation and a protected disclosure detriment claim, plus there was a need to finalise the constructive dismissal particulars.

[3]The matter came back before EJ Street on 29 June 2023 and the List of Issues was finalised and the application to amend so as to add victimisation and protected disclosure detriments was allowed. A final list of issues was drawn up at that hearing and can be found at 120-132 of the bundle. I will not replicate that document in full at this point but will utilise the numbering therein when dealing with the various claims later in these Reasons.

[4]The List of Issues records the Claimant’s Philosophical Belief (hereafter “the alleged belief”) as being: “The Claimant relies on a belief that the valid initiation of medical treatment or investigation is conditional on the freely given and informed consent of the competent individual concerned: consequentially medical decisions are a matter of personal responsibility and refusing treatment or investigation in relation to COVID-19 upon the authority of one's independent judgement is OK because such personal decisions must be respected”.

[5]Originally this matter was listed for March 2024 but that fixture was not maintained. The Claimant has given evidence by way of a witness statement and has made himself available for cross examination. The Respondent has called five witnesses who were all available to be, and were, cross examined: a) John Pagdin – Finance Director b) Steven Allibone – Group Director of Compliance c) Sally Burrowes – Group Director of Distribution Operations d) Matthew Dijkstra – Chief Customer Officer e) Luke McClaran – HR Director.

[6]At the start of the hearing, I was presented with a Cast List and a Chronology from both sides. I have considered a skeleton argument from the Respondent submitted at the start of the hearing and also considered the closing submissions of both parties.

[7]At lunch time on the second day there were concessions made on both sides. The Claimant withdrew his victimisation claim, and that claim has been dismissed upon withdrawal above. The Claimant reconsidered their position in relation to the protected disclosures and accepted that the two disclosures set out at paragraphs7.2.1 and

7.2.2 of the List of Issues were protected disclosures on the basis that they accepted that a) Taken as a whole the Claimant’s contribution to the email exchanges under the heading “Business ethics in relation to medical intervention recommendations” set out at 296-302 (June 2021 to 6 July 2021) and (295 and 310 -312), and b) The document headed whistleblowing disclosure (364-403) 1 October were disclosures of information that in the reasonable belief of the Claimant were made in the public interest and tended to show that the health and safety of an individual or any individual has been, was being or was likely to be endangered. I consider that both concessions by the parties were properly made on the evidence before me.

The Facts

[8]The Claimant’s continuous employment started on 4 March 2002 when the Claimant was engaged by Standard Life Healthcare. The Claimant’s employment transferred to the Respondent by way of a TUPE transfer in August 2010 and the Claimant signed a contract of employment with the Respondent who were at that time known as Prudential Health Services Limited on 16 July 2011.

[9]The Claimant’s contract of employment included the following express terms: a) Job Title and Duties – “You are personally responsible for complying with the Company’s policies and procedures…” b) Collective Agreements – “The Company reserves the right to make reasonable changes to these and any other agreed terms and conditions of employment”. 10.On 13 March 2020 the Respondent announced that it would be encouraging all staff who could work from home to do so from 16 March 2020 and on 26 March 2020, when the national lockdown commenced, the Respondent closed its offices. Over 2020 the office reopened and closed again depending on the Covid situation but were closed between January 2021 and June 2021. Any attendance at the office over this 2020-2021 period was contingent on the taking of lateral flow tests. 11.On 23 April 2021 the Respondent announced a new way of working that was entitled “structured flexibility”. The Respondent emphasised that they were looking to work in a way that had the benefits that come with regular contact with fellow employees, plus the benefits of the flexibility of home working. It was anticipated that from 21 June 2021 staff would be expected to attend work in the office one day a week and, later in the year, consideration would be given to moving that to two days a week. It is apparent that the return to work was seen as being supported by the UK government’s vaccination programme. In the FAQ is the following (261): “We urge all employees to get the vaccination when it is offered to them and will ask you to let us know if you have been vaccinated before the return to office work gets underway. Until all adults in the UK have been offered vaccinations, we are planning to ask all employees to have regular rapid flow tests. In phase two, we may ask employees who have declined the vaccination to get tested frequently”. 12.Mr McClaran accepted in his statement (para.7) that staff were encouraged to take the vaccine and it was the Respondent’s position that taking the vaccine was the best way to protect individuals and others from Covid 19. On 21 May 2021 there was further detail and confirmation of the “one day a week in the office” commencing on 21 June and it was said that: “Your health and safety remain a key priority, which is why we are requiring everybody coming into the office to do lateral flow tests. You'll be required to test at least once per week and twice if you want to be in the office more than one day a week. You can order free multiple testing kits online to be delivered to your home address, collect them at your local pharmacy, or visit a test site near your home”. 13.On 25 May Ms Harris asked staff how many days they wished to return for. The Claimant in his response elected for one day and agreed that getting back to the office was beneficial for a number of reasons but asserted that he did not accept that the “biosecurity and medical aspects are necessary or conducive” to the culture and productivity of the office. The Claimant’s stated position was that he would manage matters by attending when he felt well and staying at home when he did not and would not take temperature tests, wear a mask, discuss his vaccination status or undertake any testing (264). There is no indication at any point that the Claimant was prepared to change his stance on this. 14.On 10 June the Respondent sent further information about the start of the return to the office indicating that in Phase 1 everybody would be asked to do a lateral flow test once a week and the reason for it was “to ensure our offices are safe.” On 15 June the Respondent emailed staff to state that as the UK government had delayed the lifting of the lockdown by four weeks the return to the office plans had been put back so as to start on 19 July (271). 15.On 18 June the Claimant wrote to Ms Parfitt , who was the Chief People Officer, an email headed “Business ethics in relation to medical intervention recommendations” expressing his deep concern over the Respondent’s conduct in “urging, recommending and advising people to take medical intervention”. This chain of email correspondence is what the Claimant relies upon to be first of his two protected disclosures for his whistleblowing claims and as stated above, the Respondent now accepts that the chain of emails amounted to a protected disclosure. In those circumstances this chain of correspondence needs to be considered with some care.

[16]The Claimant’s view was that an employer had no standing to “lean on staff and try and influence their decisions en mass (sic), whether through frequent urging, social pressure or the use of other techniques” (301). He suggested that “an employer who (acts in that way) is acting outside of established ethical conduct and so should be accountable for any harm that results”. He pointed out the risk that he believed that the vaccine posed and asked the Respondent to review the data. He pointed out that long term side effects could not be gauged due to the shortened time scales of development and approval. He considered that the Respondent’s promotion of the vaccine was “reckless and irresponsible” and “unethical and inappropriate.” He further indicated that asking staff about their vaccination status was also unethical as it was private medical information that should have been of no interest to the employer. He concluded that: “I would like you to consider a retraction of much of the current messaging, and at the very least assure staff that no matter what medical decisions they make, Vitality will not discriminate against them”. (302)

[17]Mr McClaran responded promptly after the weekend and stated: a) The Respondent’s first priority was to keep staff safe; b) The Respondent had followed government guidelines and clinical experts throughout in order to achieve this; c) The Respondent considered it was the act of a responsible employer to encourage vaccination based upon the government guidelines; d) Notwithstanding the above nobody was being forced to be vaccinated or to tell the Respondent when they had been vaccinated as that was still voluntary; e) A meeting was offered with Dr Hasan the Chief Medical Officer, if the Claimant wished. In oral evidence the Claimant indicated that he could see no value in this as he had already seen and or heard from Dr Hasan previously and was fully aware of his staunch support for vaccination.

[18]The conversation continued at some length. On 25 June Mr McClaran informed the Claimant that taking into account the points raised they had changed an answer in the FAQ to more clearly reflect the Respondent’s position that whilst they believed the vaccination was the best way for an individual and others to be protected, they also respected individual’s choices around the vaccine and whether or not they had had the vaccine (299). The Claimant came back with a further view about the situation including a desire that the Respondent “include a pledge of financial liability for compensation in the event of harm arising from taking the (Respondent’s) medical advice or fulfilling (the Respondent’s) stated wishes.” (299)

[19]In response Mr McClaran sent an email which acknowledged that there had not been a meeting of minds on the matter and that both parties should seek to respect the other’s different view. That was insufficient for the Claimant who was not prepared to stop the debate and the Claimant responded further. That was escalated to Ms Parfitt who responded as follows: “Vitality’s approach to vaccinations has Group ExCo approval. It is based on the scientific data available, and we strongly believe it is in the best interests of our employees and society. Our conviction is that it would be unethical not to encourage employees to get the vaccination….. We consider this matter closed. 20.The Claimant still did not consider the matter closed and raised further points (296-297) and in response Ms Parfitt suggested that the place to raise an ethical conduct matter was as outlined in the “Whistleblowing Procedure” and repeated this suggestion a few days later. The tone of the email discussion is professional and courteous but the parties widely diverging views on the issue are clear. The email thread comes to an end with Ms Parfitt reiterating that she considered that the whistleblowing procedure was the best place for any future discussions on the issue. 21.The overall impression of this discussion is of two parties who are putting forward their views in relation to a topic of contemporaneous interest but with there being no meeting of minds due to both parties believing that their position was correct. I am unable to detect any form of antagonism towards the Claimant for raising the issues and the desire, once the impasse was clear, to agree to disagree does not seem to be an unreasonable one, nor does the suggestion for the Claimant to raise it further in a more formal manner in a different forum. There is no obligation on an employer to endlessly discuss a topic if it is clear that a meeting of minds is unlikely as it was here. 22.On 15 July the Respondent confirmed the return to the office was ready to start on 19 July and provided further guidance for the return and there were regular communications moving forward. It is clear that the Respondent believed wholeheartedly in the power of the vaccination as the best means of protecting their staff and consistently encouraged staff to be fully vaccinated. As an example, on 18 August (292-293) there were Cyclescheme gift vouchers available to win in a prize draw for those who were double vaccinated. 23.The Claimant considered this to be highly inappropriate and on the following day wrote to the Respondent and made three headline points: a) The Respondent should not financially incentivise decisions surrounding a medical procedure as such decisions should be made on clinical grounds. b) The Respondent should not be publicising a count of those who had shared their medical data vis a vis the vaccination. c) The communication was deliberately misleading as it offered only getting vaccinated or getting an exemption and did not mention the option to do neither. 24.Ms Parfitt responded the following day stating that she disagreed with the Claimant’s view that the Cyclescheme gift was wrong. She viewed it as being consistent with the Respondent promoting their protection of employees but she reiterated that the individual’s right not have the vaccine was respected. Two minutes after the email was sent to the Claimant Ms Parfitt emailed Mr Saunders (the Claimant’s manager) to ask whether he saw anyway that he could help the Claimant “in coming to terms with our stance, even if he does not agree with it?” Taking into account the fact that it was becoming increasingly clear that the Claimant was not ad idem with the Respondent over their approach to how they thought best to keep their staff safe, and the time the debate was absorbing it does not seem unreasonable to reach out to somebody who had a more personal connection with the Claimant (or may have) to see if there could be a way forwards that may be less time consuming and positive. 25.At the end of 20 August, the Claimant wrote back to Ms Parfitt explaining in some detail why he disagreed with her and told her that she was being “dishonest and disrespectful to staff”. This was an escalation on the part of the Claimant, although the Tribunal has no doubt that this was his genuine view. Objectively the Tribunal is unable to see that Ms Parfitt was being either dishonest or disrespectful, she simply held a contrary view to the Claimant about the matters in hand. 26.Ms Parfitt again invited the Claimant to agree to disagree but he wrote again on 26 August with a further request to her to “explain to me what you disagree with (in his argument) and why you disagree with it”. Ms Parfitt forwarded the correspondence onto Mr Saunders indicating that she was not going to respond. Again, I do not consider that objectively her decision not to engage further in a debate that was unlikely to see any material change on either side was in any way inappropriate or unreasonable. 27.Mr Saunders forwarded onto Mr Pagdin who reverted back to HR (Mr Mcclaran) on 1 September saying that he was prepared to speak with the Claimant when the Claimant returned from annual leave but wanted some information so as to be properly informed when he went into the conversation. Mr Pagdin’s view was that whilst the Claimant was entitled to his view he held a concern about the manner in which those views were being put across (308-309). 28.Mr McClaran indicated his broad support for Mr Pagdin’s intervention and reiterated that the Respondent were acting as a responsible employer and reiterated that the Claimant was entitled to his views. Ms Parfitt also indicated her gratitude for the efforts that Mr Pagdin was about to put in. 29.On 2 September there was a companywide email from Mr Koopowitz which was headed “preparing for Phase 2 of our office return” which addressed the move to 2 days a week in the office starting in October. He stated that the Respondent was eager for this to happen as it would, “facilitate collaboration, learning, and the sense of belonging, in addition to nurturing our unique culture”. He reiterated the obligation he felt to “create a safe office environment” and that he believed that vaccination was the most powerful tool available to fight Covid infections. In order to achieve that a new policy was to be implemented, “guided by the principal of mutual respect” balancing the rights of employees to refuse vaccinations with the right of other employees working in a safe environment. To do this the Respondent would request information as to vaccination status and those who were not vaccinated or were exempt or who did not provide the information would be required to undertake a PCR test each week from October and provide a negative result before coming into work. 30.There was a call between Mr Pagdin and the Claimant on 6 September when the Claimant returned from annual leave. There is a contemporaneous email from Mr Pagdin to Ms Parfitt written on the same day as the conversation. The Claimant disagrees that the email is a fair summary of that conversation but did not offer a detailed alternative within his statement or in oral evidence. I am satisfied, following cross examination, that Mr Pagdin has produced an accurate outline of the conversation in his email. Mr Pagdin had only positive things to say about the Claimant and I can see no reason why he would have produced a false account of the conversation almost contemporaneously when the conversation was fresh in his mind. Mr Pagdin appeared to have some sympathy with the Claimant’s likely expenditure on the PCR tests and enquired whether he could remain working at home from a cost perspective. Mr McClaran explained that working from home could not be accommodated on that basis and indicated that if there was a refusal to attend / conduct the test then that would be deemed to be unauthorised absence although that had still to be formally agreed. 31.On 13 September 2021 all staff were sent an email headed “Action Required – Confirm your Vaccination status”. Employees were asked to confirm their vaccination status including if they had made a decision not to be vaccinated. It was clear that the Respondent wanted the information so they could ascertain who they considered could safely enter the offices and those who would need to be subjected to a PCP testing regime in order to demonstrate they were Covid free before coming into the office. The Claimant responded to Mr Pagdin within half an hour: “…I regard my medical information as private so I won't be participating in this survey. I also believe Vitality should have explicitly asserted that personal medical information is inherently private and therefore should have explicitly acknowledged that it is voluntary to participate.” (315) Mr Saunders subsequently sent the Claimant a chaser re completing the survey but the Claimant did not complete it. 32.On 27 September 2021 Mr Koopowitz sent an email to all UK Vitality staff stating that he was reaching out to speak further about the forthcoming two day a week office model and his commitment to keep people safe in the office environment. He indicated that most had been positive about the proposals there were some different views which he indicated he respected but wished to reinforce certain matters in case of misinterpretation or misunderstanding. The key points were as follows: a) Decisions were being made with the “collective and the greater good in mind”. b) A hybrid approach (some home / some office) encompassed this in that there were good reasons for bringing people together again in the office. c) The next important issue was how to make that safe for employees and he indicated that was not an area for compromise. d) He indicated that they had been following the data and science on the effectiveness and safety of the Covid vaccines and considered that to be unequivocal. Most staff had been vaccinated and provided evidence of that but some were not and that choice was respected although the consequence of that was that necessary precautions would need to be put forward to protect from contracting or spreading the virus and he considered that the PCR test was that which would provide the “best peace of mind.”

[33]The message from the Respondent appears to be clear that they consider the approach that they are taking to be based upon solid information and that there is no indication that there was going to be any change to that approach in the future.

[34]On 27 September a guide was sent out to managers in respect of “Leading your team in a hybrid world”. (321) That guide indicated that a hybrid working model was being trialled in order to try and maximise the different locations of work. It provided guidance of how to maximise collaboration and connection on the office days and how to maximise focus and productivity on home days. The paper ended with a table that indicated how they would measure the effectiveness of the hybrid model in what was described as a “test and learn approach”.

[35]On 30 September there was a further “In the Loop” communication confirming that Phase 2 was to start from the following week and that from Monday “you must have confirmed that you are double-vaccinated or provide us with a weekly negative PCR test result before coming into the office” and the process for doing that was explained. It was suggested that some PCRs were free in certain areas or alternatively a partner organisation would provide a test at a cost of £50 per test. It was said that the cost of tests could be claimed back from the individual’s Personal Health Fund but the reality of that was that was it was money held by the Respondent on behalf of the Claimant (or any other employee). If they used that source then they would inevitably have lost the opportunity to use the funds accrued elsewhere. If an individual considered they should be exempt then they were to complete an exemption form and that would be considered by a member of the Group Executive Team (340-342). 36.On the following day managers were updated and provided with a to do list if a member of the team was unvaccinated and did not provide the required test. If they failed to attend the office they needed to be contacted and in the discussion they needed to be informed that the absence would be recorded as unauthorised absence. If there were repeated episodes of such absence then managers were pointed to the disciplinary procedure and HR (343). 37.A further “In the Loop” went out to employees on 1 October providing them with answers to further FAQs including a check list of what they required. (347) In relation to PCR tests the following was drafted: “Throughout the pandemic, our focus has been on protecting and supporting our employees and our customers, and that will continue. The easing of lockdown heralds the exciting prospect of reconnecting in person with colleagues at the office. We need to do this in a responsible way, because we're not out of the woods yet. Here are answers to some questions you may have about PCR testing. We will update them regularly. Q. What is a PCR test The polymerase chain reaction PCR test for COVID is a molecular test that analyses an upper respiratory specimen looking for genetic material of SARS Cove 2 the virus that causes COVID. Q. Why are employees being asked to carry out a PCR test from the 4th of October instead of a lateral flow test ? Lateral flow tests are only authorised to be used as a red light to identify infectious people and ensure they self-isolate quickly and not as a green light for people who test negative to enjoy greater freedoms. This is because unlike PCR tests, lateral flow tests cannot detect very low levels of coronavirus in the sample. You can't control the mucus sample size in an LFT which reduces its accuracy. This means the tests may not give a positive result if you have only recently been infected, in the incubation period, or have mostly recovered. Another consideration is that the accuracy of LFT's depend on the person who does the test. Source pharmaceutical journal Q. Why are only unvaccinated employees required to do weekly PCR tests when vaccinated employees can still catch and pass on COVID- 19? The latest science and data tells us that vaccines reduce the chance of contracting COVID by 50 to 80%. There was a 50 to 80% lower risk of vaccinated individuals transmitting the virus if they do become infected. The risk of hospitalisation is 70 to 85% lower if you are vaccinated the vaccine reduces the risk of death by 90 to 95%. If individuals have not been vaccinated the next best thing to reduce transmissions is for them to do regular PCR tests. (347)

[38]On 1 October 2021 the Claimant issued what he described was a “disclosure in the public interest” which was said to “broadly concern harmful conduct in relation to (the Respondent’s) pursuit of voluntarily adopted mass-vaccination goals.” (358) This is the disclosure asserted at 7.2.2 of the List of Issues. There were two attachments and it was suggested that the supplement was a document that provided an insight to the Claimant’s position related to the disclosure but that the harm radiated further than a personal harm. The other document was the disclosure itself. The full document is between 366 and 402 of the bundle. 39.The relevant Whistleblowing Procedure was drafted in May 2019 and was supplemented into the Bundle. Mr Allibone was the Appropriate Person who took the issue on and his obligation was to “conduct an investigation which may include the use of an external third party person if appropriate”. Mr Allibone was expected to report his findings “within a reasonable timeframe”. The indication within the policy was that Mr Allibone’s focus should have been on whether he was able to uncover any sufficient evidence of “malpractice or wrongdoing”. If not then no further action would be taken and if the conclusion was that the concerns raised were made with malicious intent, disciplinary action may be considered. If malpractice had been found then “disciplinary procedures may be invoked” and suitable external organisations may need to be contacted. Where feasible the whistleblower would receive feedback on the investigation outcome. 40.There was a meeting on 4 October between Mr Allibone, Ms Parfitt and Mr McClaran and Ms Leece (Chief Risk Officer) and it was concluded that Mr Allibone should be the person to investigate. That seems to be appropriate on the basis that he had not been involved in any discussions before. 41.The whistleblowing document was a lengthy one. There was an initial document in which the Claimant set out his legal, ethical and moral concerns and then a focus upon the Claimant’s view of the science behind the vaccine. The Claimant concluded that be believed what he had drafted “should show that it is possible to use a combination of rational analysis and common sense she reached a valid answer which is contrary both to the prevailing attitude and the answer reached by the majority. I would stress that I do not imply that I am right or that the majority are in the wrong. I have simply presented parts of my own assessment to illustrate that the decision making process is person specific and not one-size-fits-all.” (403)

[42]On 4 October there was a meeting held to discuss the disclosure. Ms Parfitt, Mr McClaran, Ms Leece, and Ms Allibone met to discuss the disclosure. It was concluded that it was a whistleblowing disclosure because of the allegation of harm being caused to staff. The view was that there was little point discussing vaccinations per se with the Claimant as he was unlikely to change his mind and that the stance taken by the Respondent had come about on account of external legal advice, and discussion at senior level within the Company. That led to the response being sent as set out below.

[43]On 11 October 2021 Mr Allibone contacted the Claimant he summarised the Claimant’s assertion as being that “Vitality has declared that an employee should be vaccinated and this is a stance that places employees at harm.” He explained that he had spoken with relevant parties and Mr Crossley the independent “whistle blowing champion”. His conclusion was there was insufficient evidence of malpractice or wrongdoing and accordingly no further action would be taken. He explained that decision as follows: “Vitality has a duty to keep all employees safe in the working environment. We are following government and NHS guidance in encouraging employees to be vaccinated. However, we do recognise that some employees may not want the vaccine for a variety of reasons including medical or personal choice. In these circumstances we are not insisting that employees are vaccinated but have prudently put in place measures to protect other employees. A PCR test is recognised as the most accurate and reliable test and it is therefore the most effective way to ensure that all employees, whether vaccinated or not, are protected as much as possible against the virus. Before adopting the vaccination policy Vitality took a number of measures to ensure that it was an appropriate policy to implement. These included taking legal advice; discussing the matter at the group executive committee; and gaining Board approval. We have therefore adopted appropriate governance processes before implementing the policy. It is important to note that the policy does not insist that employees are vaccinated; Ultimately, it remains their choice”. 44.The Claimant responded shortly thereafter indicated that the response was unsatisfactory in that Mr Allibone had not responded adequately to the Claimant’s “dozens of pages” but had sought to “mischaracterise the argument and then respond to this strawman of your own creation”. He further explained that the key was “Vitality’s desire and efforts to supplant legally valid individual medical decisions with Vitality’s choice that is a wrongdoing resulting in harm” and that Vitality’s “efforts to overcome the will of the staff” amounted to bullying with the “mutual respect” policy increasing the pressure on staff. 45.He asserted that whilst notionally there was a choice as to vaccination, he considered that in reality that Vitality actually insisted because of Mr Kooperwitz’s regular urging now supported by “discriminatorily submitting one group of staff to a multi thousand pound financial penalty or a disciplinary action”. The Claimant asserted that he had laid out a “clear argument of legal, moral and ethical wrongdoing” and that “your response has not touched on any of this evidence”. The Claimant suggested that Mr Allibone should “survey those who have recently been vaccinated and those who remain unvaccinated and ask them to candidly discuss their experience”. The Claimant asked for Mr Allibone to address the allegations as laid out in the whistleblowing document and evidence “in each case” why legal and moral wrongdoing had not occurred. The Claimant asked for a copy of the legal advice, and the relevant minutes where decisions were taken . 46.The Claimant sent a chaser the following day (12 October) and following an acknowledgment from Mr Allibone of receipt chased up his outstanding requests again later that afternoon and again on 14 October. Later that morning Mr Allibone emailed to say that he had revisited his reply and stated that: “I remain satisfied that the whistle blowing disclosure was investigated appropriately and suitable governance procedures were followed before the policy was implemented. In respect of your disclosure, we have complied with our regulatory responsibilities in this regard and as such I now consider the matter closed.” (354)

[47]On 22 October Mr Allibone, drafted a short report on the Claimant’s disclosure (362-363) and because of the Claimant’s responses further external legal advice was sought and obtained. As there was no change to the Respondent’s stance it must be assumed that the advice was that the Respondent’s stance was legally sound 48.The mandated two day a week attendance came into force at the start of October. On 12 October Ms Streeter wrote to a number of managers including Mr Pagdin with what was described as a “follow up” to see how the return had been going and whether there had been instances of people not coming into the office. She told Mr Pagdin (inter alia) that: “Employees not returning for the mandatory 2 days a week will be treated as unauthorised absence from the office which will lead to a disciplinary offence (2 occurrences of not coming in). If someone isn't turning up on their expected day please ensure your managers are following this up with employees as the manager’s conversation with them, including date and what will happen if they continue not to come in, will need to be referenced in the investigation and any letter inviting them to a disciplinary hearing. 49.Mr Pagdin wrote back later the same day (424) to indicate that the only person he was aware of was the Claimant. Mr Pagdin reported to HR that he had spoken with the Claimant on 30 September and he reported contemporaneously and in his recent witness statement that the Claimant was aware of the requirement to attend and further that non-attendance would lead to a disciplinary process. He indicated that there had been a further conversation on 12 October in the same vein. The Claimant was reported to request whether a situation where he was working from home as opposed to in the office as instructed would be dealt with differently to unauthorised absence generally when somebody does not attend work and does no work at all. Secondly he asked whether a disciplinary for such an offence would lead to a loss of bonus (424). 50.Ms Streeter responded by indicating that non-attendance in the office was an unauthorised absence from the office and was a failure to follow a reasonable management instruction. She reminded Mr Pagdin of the two absence threshold and indicated that she could assist further in instigating any disciplinary process if required.

[51]The Claimant did not attend for work in the office, although he was undertaking work from home. He emailed Mr Pagdin on 15 October with a heading of “Variation of Contract Terms”. He contended that Mr Koopowitz email dated 2 September 2021 (304-305) set out above was an offer to vary his contract of employment which he did not consent to (421). 52.On 15 October Mr Pagdin sought guidance from Ms Streeter from HR copying the email from the Claimant and saying that he believed the Claimant was referring to the vaccine and PCR requirements. Mr Pagdin was seeking guidance from HR as to how to respond. There was a short delay in responding which was down to Ms Streeter being absent on sickness absence and “Luke M” being on annual leave. On 1 November she did respond and suggested the following wording to be sent to the Claimant: “From time to time we will update our policies and procedures and we notify every one of these changes when they occur. We did that on 2 September with an e-mail from our CEO. In that e-mail we explained the implementation of the hybrid working model and the measures we are introducing to protect and support our employees. The aim of this policy is to balance the rights of employees to refuse vaccination with the right of all other employees to work in a safe environment. These changes apply to all employees and visitors who are expected to act in accordance with all our policies, procedures, and any reasonable management instructions.” It is clear this was an HR response, not that of Mr Pagdin personally, and he duly passed the message to the Claimant on 2 November (421). 53.On 11 November Ms Streeter sent an investigation template for Mr Pagdin to complete. He was instructed to have an investigation meeting with the Claimant and then to fill out the form. Once he had conducted his enquiries then he was required to “consider whether there had been a breach of the hybrid policy and recommend if a disciplinary hearing was necessary” (430). A conversation was set for 16 November between Mr Pagdin and the Claimant but the Claimant indicated that he was experiencing stress and anxiety that had contributed to a decline in his physical and mental health and so did not feel up to having the conversation (429). 54.Mr Pagdin rescheduled the discussion for the following day but despite numerous attempts was unable to contact the Claimant despite it being a working day. He sought further advice from HR. 55.On 18 November the Claimant wrote to Mr Pagdin indicating that he was working under protest in relation to what he considered to be a contract change which he had not accepted and was in the process of drafting a grievance. Within that email the Claimant spoke of having “lost faith” in the Respondent’s internal procedures and “no longer trusted (the Respondent) to engage in an open and constructive manner” (432). He asked that at any point in the investigation report where input from him was required he wanted recorded “TBC - pending reading of a forthcoming formal grievance” to be entered and that he only wished to communicate in writing in future. 56.Mr Pagdin responded and reminded the Claimant of various support options available to him, gave some indication re raising a grievance and indicated that the expectation was that the Claimant would be undertaking work during working hours and that he should take sickness absence if he was not fit to work. Mr Pagdin did set the Claimant a task and from the oral evidence it was clear that at this point the Claimant was transitioning from one role to another. The task set was a straightforward but vital one. It was not a difficult task for the Claimant to do and I am satisfied it was handed over in an attempt to accommodate the Claimant’s declaration that he was far from in top condition.

[57]The Claimant’s view seemed to be that it was demeaning and a reflection of him being held in low regard. It was clear to me that Mr Pagdin held the Claimant in very high regard and I find that offering this work (431) was a genuine attempt to accommodate the Claimant’s difficulties which I consider Mr Pagdin empathised with. The Claimant’s reaction is indicative of the polarisation that had taken place between employee and employer at this point. 58.On 19 November Mr Pagdin sent the Claimant a letter again recommended by HR. He provided what he considered to be a summary of the discussions that had been held re the Claimant’s absence from the office and indicated that he had referred the matter to a disciplinary hearing on account of: a) The Claimant’s failure to follow reasonable management instructions by not attending the office on two days per week from 2 October as directed as part of the (Respondent’s) hybrid return to work model; b) Unauthorised absence from the office. 59.It was indicated that a disciplinary invitation would follow, and it duly did on 19 November 2021. The Claimant was entitled to be accompanied as per his statutory right and the letter follows all the norms that one would expect from such a letter. So far as outcomes were concerned the Claimant was referred back to the disciplinary policy and that indicated that, for the allegations outlined, a first or final written warning were the sanctions that could be applied. The Claimant would have an opportunity to put forward any mitigation that he wished at the disciplinary hearing and in those circumstances could have taken the opportunity to put his points forward either in defence of the allegations or as mitigation re sanction. As an example, he could have argued that in the circumstances that pertained and on the conditions required attending the office two days a week was not a reasonable management instruction, setting out his objections. 60.The Claimant was not alone in receiving invitations to a disciplinary meeting around this time for the same offence. On 20 October 2021 (930) an employee was invited to a disciplinary meeting which then took place on 27 October 2021. The individual did not wish to be vaccinated and indicated that going forwards there would be a problem with paying for the, still necessary, PCR test. The individual was given a first written warning, and it was indicated that if the individual failed to attend in the future a further disciplinary hearing would be convened. 61.Another individual was invited to a meeting on 20 October, but the disciplinary hearing did not take place and the evidence was that the individual resigned. The Claimant’s process was initiated about one month after others. 62.The Claimant responded to Ms Ruddock from HR in the early hours of 22 November. He stridently complained that: a) The form Mr Pagdin had filled in was inaccurate; b) He would not attend any hearing; c) He did not accept the “contract variations” and would be bringing a grievance about matters; d) The disciplinary should be paused pending consideration of his grievance; e) In any event the Claimant was too ill to attend. 63.On 2 December Ms Ruddock indicated that prior to considering whether or not to delay the disciplinary pending the grievance they would need to see the grievance. That does not appear to me to be anything other than a sensible proposal. She suggested that the grievance be submitted by 7 December so that a decision could be made.

[64]The Claimant’s response is again a reflection of the Claimant’s state of mind at that point. He suggests that the Respondent is “attempting to dictate the timing of this delicate procedure” and they were “trying to make (him) work through it whilst medically certified as unfit to work”. Whilst I have no doubt that was what the Claimant felt was going on the Respondent’s request was a simple and straightforward request for the prompt submission of what the Respondent required in order to assess the Claimant’s request for delay of his disciplinary and so was both understandable and wholly reasonable.

[65]On 22 November the Claimant emailed Mr Pagdin to say that he was selfcertificating for one week due to chronic stress and acute anxiety that had built up over the previous ten weeks. The cause was asserted to be the Respondent’s conduct. On 28 November the Claimant indicated that he would need more time and would remain on sickness absence reiterating that it was the Respondent’s conduct and “unjust threats” that were the cause. A GP Fitness for Work Certificate was sent on 3 December indicating that the Claimant would be absent until 12 December. An OH assessment on return was mooted by the GP (446). 66.On 9 December the Respondent sent out an “In the Loop” communication confirming that following government guidance there would be a reinstitution of working from home from 13 December (447). It follows that at this point the requirement to attend in the office for two days a week had concluded for the time being. There would be no likelihood of the Claimant transgressing further whilst this state of affairs was in place. 67.On 20 December Ms Ruddock replied to the Claimant’s 3 December email indicating that taking into account the Claimant’s sickness absence of 4 weeks she would like the Claimant to consent to being referred to OH. She added that she was not able to pause the disciplinary process on account of a promised grievance that had not yet been submitted. She was not able to assess the need to delay. The Claimant’s sickness absence was noted and it was suggested that OH would be able to assist in considering whether the Claimant was fit to attend a disciplinary hearing. Again, objectively, there is nothing wrong with what appears to be a reasonable and reasoned HR response. 68.Two days later Ms Ruddock wrote to the Claimant noting that he had been off since 22 November, that the latest sick note only ran to 12 December and that since that time the Claimant had failed to communicate at all with the Respondent about his sickness absence / capacity to work and requested an update and an updated fit note. She also announced that the discretionary sick pay that the Claimant had hitherto received would be replaced by statutory sick pay from the following day. 69.The Claimant’s contract stated that: “Sickness benefit is paid at your usual salary to include Statutory Sick Pay and at management discretion and on provision of medical certificates. Once Company Sickness Benefit has been exhausted, Statutory Sick Pay applies.” (165) The Sickness Absence Management Policy (180) stated under the heading “Sick Pay”: “Company Sick Pay (CSP) is paid on a discretionary basis and includes any entitlement to Statutory Sick Pay (SSP). Your manager will consider the following guidelines when deciding whether you should be paid CSP. These guidelines are not binding and payment of CSP will be considered on a case by case basis…. Over 2 years’ service - up to three months CSP… If you are absent due to sickness while you are on informal attendance management or under a formal attendance Improvement Notice, CSP will not be paid.” (180). 70.The email removing sick pay was sent around noon and at 2148 the Claimant replied (454-456). The Claimant summarised the history of the situation as he perceived it and concluded with the withdrawal of company sick pay that it was readily apparent that “(the Respondent) is acting without good faith with the intention of forcing out a good member of staff whose only mistake was to ask (the Respondent) to ask themselves to reconsider recent unfair changes. Any person of sound mind can see that it is (the Respondent) who is in the wrong” (455). The Claimant asked for: a) Reinstatement of full CSP and that he would need that support until at least mid-February. b) To “unconditionally quash the unjust disciplinary action”. Anything less than this would “inevitably worsen (the Claimant’s) condition and injure his prospects for recovery”. He indicated, that being so, he was unable to respond to the proposed OH appointment. I am unable to see why that necessarily follows as if the Claimant attended the OH appointment then there would be a clear report on his condition and the causes for it from which the Respondent’s future conduct could properly be assessed. On 4 January Ms Ruddock sent an email of acknowledgement and on the following day the Claimant sent in a further Fit Note signing himself off until the end of January (458). 71.On 10 January Ms Ruddock substantively responded to the Claimant (485- 486) stating that: a) The Claimant was entitled to raise a grievance about the various points he had raised and she noted that the Claimant was not fit to do so at that time; b) The Claimant had been supported for a month which was considered a reasonable time taking into account “the initial cause of your absence was related to our return to office requirements”; c) The disciplinary was on hold pending a decision in respect of the Claimant’s fitness to attend such a meeting; d) The Claimant was recommended an OH referral. 72.On 12 January the Claimant submitted his grievance and replied to the above letter. The Claimant’s response can be described most accurately as combative and within it he asserts the Respondent is: a) “Devoid of good faith intent”; b) That the internal process for whistleblowing was a “sham”; c) That the Respondent is bullying, harassing and victimising him; d) He would not attend any disciplinary hearing, not because of his fitness but because “the entire policy is invalid due to unsound construction”; e) The disciplinary was “spurious and malicious” / “malicious and vindictive”; f) The Claimant reiterated the demands he made re CSP and the disciplinary as outlined above. 73.The grievance was a substantial document and is at 460 to 481. It is not clear precisely when it was drafted but at least some of it must have been drafted when the Claimant was too ill to work. The Claimant expressly reserved the right to add to his grievance (460). The structure was his grievance in a “nutshell” followed by longer sections with accompanying documents. A summary of the “nutshell” (463) in bullet point form was that: a) The Respondent had engaged in unwanted conduct connected with aggressive persistent and unreserved promotion of emergency use medication in response to COVID from April 2021. b) After informally via a director and notifying the Respondent by means of whistleblowing formally that this and related misconduct was uninvited, unwelcome, detrimental, and injurious to a subset of staff including himself, the Claimant was victimised by a “series of omissions contract breaches,, breaches of the duty of care and failures to make reasonable adjustments, culminating in the Respondent bringing a spurious and intimidating disciplinary misconduct allegation against the Claimant”. c) The intimidation was accomplished via “the clauses of a unilaterally imposed contract variation”. d) The Respondent’s behaviour had led to a workplace injury and a “an employment contract which is effectively repudiated” by the Respondent. e) The Claimant reflected that his situation was not “in every respect unique” as many other Vitality staff had also suffered detriment due to the institutionalised culture of condoned harassment, discrimination and bullying that still pertained in Vitality at the time of writing. 74.The Grievance Policy and Procedure was in the bundle at 202-204. The Respondent acknowledged the grievance on the same day and so that was well within the three days envisaged in the Policy. 75.On 17 January 2022 an “In the Loop” missive was sent out stating that government advice on testing had been recently changed and PCR test would no longer be required for unvaccinated employees before coming into the office – a Lateral Flow Test would be sufficient moving forwards. 76.The Claimant was informed that “the business are finalising the arrangements such as, the date and time to hear your grievance and that an appropriate person to hear it has been sourced. It will be heard by an ExCo member” (483). The Claimant emailed on 22 January asking for an answer to his Company Sick Pay request and his disciplinary request and confirmed that he wanted the grievance hearing to “be conducted in writing.” 77.Although Ms Ruddock was communicating with the Claimant Ms Byrne, also from HR, was also involved in running the grievance. Ms Burrowes was asked to consider the grievance on her evidence on 19 January and received the papers two days later. She had not met the Claimant and asserted in evidence that she knew nothing about him. I accept that to be correct in the absence of any evidence to the contrary. 78.On 28 January Ms Burrowes contacted Ms Byrne and raised in bullet point form what she considered were the Claimant’s main points of grievance of which she assessed there were nine. She raised with Ms Byrne queries and a list of information that she wanted to look at. 79.At that time Ms Burrowes had been ill for a short while and described herself as easing herself back into work in a text message (511). On the same date (497) Ms Ruddock communicated with the Claimant indicating that the Respondent had agreed to hear the grievance in writing but raised the point that if the matter were considered in this way the role of any “representation” at a hearing would be nullified. She confirmed that the pay and disciplinary situation would remain the same and asked again re the Claimant going to Occupational Health. 80.Later that same evening the Claimant responded explaining that he was frustrated and disappointed with the pay and disciplinary decisions / situation and asking them to be reconsidered. He also expressed concern over the “unnecessary and unreasonable delays in the grievance process”. There was also a refusal to engage with OH as the Claimant considered that his fitness to work was adequately covered by the Fit Note. 81.On 2 February Ms Ruddock responded that the status quo would remain in respect of sick pay and the disciplinary matters would not be dispensed with. She confirmed that Ms Burrowes had been appointed to hear the grievance and that she would deal with the grievance. The Claimant’s position on OH was noted and the Respondent indicated it would proceed on the information it had. She indicated that Ms Byrne would now be the HR link for the grievance. (495) 82.On 2 February the Claimant emailed Ms Byrne and reiterated the points that he had been raising with Ms Ruddock and effectively Ms Byrne sent a holding email acknowledging receipt. 83.Ms Byrne replied to the issues raised by Ms Burrowes in her previous correspondence indicating documents that she was sourcing at Ms Burrowes request Ms Burrowes had enquired as to whether she was obliged to consider “each and every accusation” and what output was suggested. Ms Byrne advised: “You are not obliged to respond to every demand and question, indeed it's impossible in this type of case. (Your role) is to review his core complaints and make a judgement call.” That does not seem to be an unreasonable approach on the part of the Respondent who are obliged to respond reasonably and proportionately to grievances and complaints lodged. 84.On 4 February Ms Burrowes contacted the Claimant to introduce herself and confirmed that she would deal with it in writing as per the Claimant’s request. Having said that Ms Burrowes also asked for any documents considered relevant to “the meeting” and whether any witnesses were required by the Claimant in respect of the process. There was also a further reference to a grievance meeting in the final paragraph after Ms Burrowes has asked what a good outcome would be for the Claimant from the grievance process (505). 85.On 7 February Mr Matthews expressed the view that he did not believe that him and Byrne had “got off to a good start” as she had not dealt substantively with his concerns. He opined that: “This could only be to the good, because it is presently poisoned by absurd threats and overshadowed by the aggravation of deliberately inflicted hardships.” (571)

[86]On 7 February (503) the Claimant wrote to Burrowes and indicated that he would not be calling any witnesses and had no need for further adjustments at that point. The Claimant indicated that a good outcome for him would be: “A thorough and detailed response to the grievance, admission of wrongdoing in each area, apology to all impacted, refund of expenses, recompense for all losses experienced, quash the absurd disciplinary threat, provide express recognition of asserted disputed contractual rights, compensation for pain suffering injury and inconvenience, and the enablement of a safe return to work in due course with reasonable adjustments if necessary and without risk of further hostility, harassment, bullying, discrimination, or victimisation whether by act or omission. In the event that such conditions will not be fulfilled or that future hostility is unavoidable I would invite for consideration a purely financial exchange for existing claims and present employment rights, subject to legal agreement, a prompt termination date and suitable references.” It is clear that the Respondent would have some way to move from their currently stated position that what they had undertaken in relation to complying with their obligations around the vaccination and providing what they considered to be a safe working environment to satisfy the Claimant. I am quite satisfied that the Claimant’s position was pretty much non negotiable and that anything less than what he had set out would be unacceptable.

[87]On 8 February Ms Byrne texted Ms Burrowes indicating that the Claimant had made a move re settlement but advised that the grievance should still be considered. The Claimant was referred to as “our friend J” (512). On 15 February Ms Burrowes indicated to Ms Byrne that she was sorry that she had been slow on the grievance, and she had not been able to go through the material. The reason she gave was that she was “flat out on projects” (514). The Tribunal notes that whilst grievances should ideally be dealt with promptly factors such as the size of the grievance and the workloads of those dealing with the grievance are all factors that play into how long it eventually takes to deal with. An employer should always seek to ensure that grievances are given to individuals who have the band width to deal with them but it is acknowledged that in the real world that is not always possible. I am satisfied that Ms Burrowes workload was a factor in the delay but so was the nature of the grievance she had been tasked to look at which was very wide in scope.

[88]On 9 February Byrne expressed sorrow that the Claimant thought that they had started badly and reassured him that work was being undertaken on the grievance and that Ms Burrowes would contact the Claimant directly if she had anything she needed to raise with the Claimant or the Claimant himself wished to add something in. Any issues re sick pay and/or the disciplinary would be reviewed by Ms Burrowes as part of the grievance. The Claimant wrote back on 9 February indicating that he still considered the sick pay and discipline matter could still be resolved. The Claimant’s persistence and refusal to take no for an answer is readily apparent. 89.On 15 February the Claimant emailed Ms Byrne in relation to the pay and discipline issues again and reminded her that he was still owed a duty of care. Ms Byrne responded on the following day saying that there was a lot to go into on the grievance and that she had responded to the pay and discipline issues saying that Ms Burrowes would also consider those matters in the grievance response. 90.On 16 February at 2012 the Claimant wrote again saying to Ms Byrne (569): a) That the facts of his grievance were so “simple and straightforward” that with “honesty and competence” it could have been wrapped up after a couple of days. b) That HR had spent 2 months “ignoring and deflecting” his requests. c) Ruddock and Byrne had allowed “the unnecessarily harmful treatment and the unjustifiably threatening posture to be dragged out without explanation.” d) The present treatment was not acceptable, appalling and absolutely without merit, humanity, or compassion. e) It was “a debacle which was a disgrace to the business and the Human Resources function.”

[91]It is clear that the Claimant was greatly exercised by the issues he had raised which were a matter of great concern for him. I do not accept that his grievance was simple and straightforward. If that were so his grievance would not have been the length and detail it was. I note that when his whistleblowing complaint was dealt with in days the Claimant complained of a lack of rigour and investigation. Honesty and competence alone would not have been sufficient to get it done in two days. The Claimant’s comments are hyperbolic and overstates the position, in my view, substantially. I have no doubt that the Claimant’s approach was driven by the stress and anxiety he was suffering from at this time, but his overblown language was in my view simply misplaced and an error in judgment on his part. 92.It is apparent that Ms Byrne did not appreciate the tone of this letter and escalated that matter to Mr McClaran. I understand why she felt that way and her response was a reasonable one. She forwarded it to Ms Burrowes indicating that she had found the tone “totally unacceptable” and the response was in agreement “Just read it – dreadful – and quite unhinged I think”. That is an unfortunate response from Ms Burrowes and lacks the professionalism one would expect. Having said that the manner in which the Claimant was conducting himself and the increasingly vituperative and disproportionate emails from him does not escape censure either and I consider that at this point the Claimant’s responses were becoming less and less rational and increasingly emotional and personal. 93.On 2 March the Claimant complained further about the delay in his grievance and conjectured that the delay was “an underhanded legal tactic by a group of people acting without good faith despite their obligations”. On the following day Ms Byrne responded assuring the Claimant that initial investigations had been carried out and further information was being obtained. Ms Burrowes would be out of the business for most of that week and a further update would follow. The Claimant viewed that response as “indicating contempt”. Again, the Claimant is taking a very high line against the Respondent. Whilst his frustration at the time things were taking is understandable, objectively looking at all of the matters feeding into the grievance, the delay is not really that surprising. 94.The Claimant sent chasers on 10 March and 29 March. On 30 March Ms Burrowes wrote to the Claimant saying that the delay had been caused by the length of the grievance and the volume of documentation to look at but that it had now been completed and she sent the outcome through. She indicated that she was prepared to meet with the Claimant if that was required 95.The grievance outcome (523-531) rejected the Claimant’s grievance under the following headings which Ms Burrowes had previously extracted from the whole grievance: a) Whether or not the Respondent had unilaterally varied the Claimant’s contract of employment in requiring PCR tests at own cost; b) Failing to provide a safe working environment c) Failing to make adjustments on account of the Claimant’s protected belief (wish not to be vaccinated) d) Bullying and harassment by senior management e) Head of People failing to discharge duties toward the Claimant f) Failing to disclose legal advice, board minutes etc. g) Failing to follow whistleblowing process h) Incorrect use of disciplinary procedure i) Sick pay issues. 96.I will deal in more detail with the sick pay element of the grievance decision. Ms Burrowes correctly identified that company sick pay was discretionary as opposed to a right but sought to focus on the Claimant’s failure to attend OH as being the reason why the Claimant’s company sick pay was stopped. It is clear from the documentation that: a) The request to see OH post-dated the decision to stop company sick pay and so could not have been the reason sick pay was stopped; b) In any event the penalty for not complying with a request to see OH would be to move into attendance management process territory. If that were done then suspension of company sick pay could follow, but that never did happen even when there were issues re OH involvement; c) The actual reason given by the Respondent for suspending the payment (“the initial cause of the absence being related to the return to office requirements”) was not considered by Burrowes.

[97]I find that, although I take no issue with the vast majority of the findings of Ms Burrowes, I am satisfied that she did not deal with the sick pay issue appropriately. She should have been asking whether or not the actual reason given by the Respondent for stopping company sick pay was such that it was an appropriate exercise of discretion to then stop sick pay. Had she done so I find that the only conclusion that she could have come to was that it was unfair to effectively apply a wage sanction against an individual for something that in the disciplinary process he could only be warned for. Ms Burrowes was wrong and was always going to be so because she failed to ask the correct question and the Claimant’s grievance should have been upheld on that point.

[98]On the following day the Claimant emailed Burrowes and complained that “no questions of any sort were posed of me to clarify anything about the content of the grievance documentation” and he suggested that “it cannot be ruled out that such omissions and misconceptions as do exist are wilful”. He indicated because of the omissions and misconceptions there would need to be a review / rehearing before any appeal process was started. Ms Byrne wrote back to indicate that any issues with the outcome would need to be the subject of an appeal. It should be noted that it was the Claimant who wished to have matters dealt with in writing and at no time had he suggested or asked for a meeting with Ms Burrowes. I make it clear however that whilst Ms Burrowes was wrong re the sick pay I do not accept that she erred deliberately or that she made the mistake in bad faith or as the Claimant put it her default was “wilful”. It was an error - plain and simple. 99.On 4 April the Claimant wrote to say that he had now had a chance to look at the grievance outcome in detail and he had provided detailed annotations to it. He indicated that he believed there was a “fundamentally flawed understanding of the actual grievances” and so the outcome was, in effect, not fit for purpose. He gave two possible reasons for this being: a) The investigating manager may have made a wilful and deliberate effort to avoid or misrepresent the nature of the grievances to simplify Vitality’s defence of the grievances by ignoring or substantially altering their formulation, such that the true grievances were not actually addressed. b) The investigating manager did decide not to conduct an indispensable meeting which both parties had agreed at the outset to conduct in writing. The result was that the basic prerequisite of understanding the grievances was not met by the investigating manager prior to investigation and deliberation.

[100]He indicated that the former would mean that the fundamental principles of natural justice, fair treatment, and a fair hearing by an unbiased person would be defeated and refusal to remedy this before moving to appeal would render Vitality’s grievance process a sham and the second instance would demonstrate that there had been an egregious, but potentially resolvable, procedural failure. In both instances the Respondents failings would fundamentally undermine the process. He suggested that these issues should be remedied before moving to the stage 2 appeal.

[101]Ms Byrne wrote back that under the policy an appeal was the next stage. The Claimant again wrote back in a dissatisfied fashion. He did not appreciate the brevity of Byrne’s reply and considered that gave him no confidence that his points had been duly considered. He indicated his belief that: “You may have been coached to reply in this manner, that you may lack seniority or authority to respond fully, or that you are simply confused or too busy to respond in kind”.

[102]The Claimant reiterated that the primary problem, in his view, was the Respondent’s failure to understand the grievances, which flowed from the failure to hold a written equivalent to a preliminary meeting. He then set out a demand that fifteen points needed to be confirmed by Ms Byrne. She did not engage with the Claimant but simply indicated that for the appeal another HR individual would be involved. Again, at this point in the process there was another discussion that was going nowhere and it was reasonable and proportionate for the discussion to be shut down in the absence of any suggestion that the Claimant would be persuaded of the Respondent’s view and vice versa. I find that it was appropriate and reasonable for the issues that the Claimant was raising to be considered on an appeal.

[103]I do not consider that the Respondent have acted in any way other than reasonably in their Response to the Claimant’s correspondence post grievance outcome. The Claimant raised his grievance and it was dealt with. The Claimant was dissatisfied with the outcome and he was directed to raising those points on appeal. If employers redid a grievance every time an employee raised concerns about its sufficiency then that would be incredibly onerous on the employer and would probably mean that until the answer was in accordance with the employee’s view it would continue. Any process needs certainty and an end point. The Claimant was entitled to and could raise any issues with the outcome and the manner which Ms Burrowes came to the outcome at the appeal stage. That was his right under the grievance policy and the Respondent’s stance on that matter was a reasonable one.

[104]When the Claimant appealed, it was originally given to a Mr Stipp but subsequently moved to Mr Dijkstra immediately after the Claimant objected. This is a matter that the Claimant asserts contributed to his constructive dismissal. It is difficult see how the prompt resolution of an issue raised by the Claimant could be seen as any form of straw that leads to a constructive dismissal.

[105]On 4 May 2022 Mr Dijkstra wrote to the Claimant indicating the grievance appeal meeting would be held on 11 May, although it is clear that the letter was drafted by HR (535). HR provided Mr Dijkstra with the previous paperwork and there was an attempt to summarise the appeal into two A4 sheets (534). On 6 May Mr Dijkstra wrote to the Claimant saying that he wanted to make sure that there was nothing else the Claimant wanted to raise e.g. evidence that the Claimant might wish to bring, highlight aspects which were inadequately framed previously or that were overlooked. A call to discuss was offered.

[106]On 9 May the Claimant responded to Mr Dijkstra (539-540) and reiterated a number of points he had made previously to Ms Byrne describing the move to the appeal without undertaking what he considered was necessary as being “unnecessary, inefficient, prejudicial, unjust, and unpractical.” He reasoned that all this was being done in order to ensure that a finding was made against him in his grievance and it would achieve the Respondent’s objective to remove the Claimant from the business. He went on to say that before the appeal there needed to be a look at the procedural failings before the appeal could take place and he provided additional information to try and assist Mr Dijkstra.

[107]Mr Dijkstra simply responded that all matters of complaint would be dealt with together in the grievance appeal and there was further correspondence on the point until Mr Dijkstra made it clear for a final time that all would be considered at one time. The Claimant accused Mr Dijkstra was deliberately closing his eyes to what were fundamental matters. Again, I do not consider that Mr Dijkstra’s approach was in any way unreasonable.

[108]The appeal took place on a Teams call with the Claimant taking part via the Teams chat function. The meeting took place for just under one and a half hours on 11 May. On the following day Mr Dijkstra raised five questions of the Claimant (554) and also interviewed Ms Byrne (558-559) and asked for some emails from Mr Pagdin.

[109]The grievance appeal decision was sent out on 15 June 2022 (588- 601). The appeal was not upheld. Firstly, the Claimant was directed to the context in which the grievance and the appeals had been made which was Vitality’s response to the pandemic which Mr Dijkstra found to be legitimate and proportionate in terms of protecting staff. The length of time to deal with it was laid at the door of the complex and lengthy nature of the Claimant’s grievance and that the need to make the necessary enquiries. Mr Dijkstra then goes through various points and deals with each in turn.

[110]Again, I will deal with only one specific aspect of Mr Dijkstra’s findings and that is in relation to the company sick pay which is an area where I have found that Ms Burrowes erred. Again, the issue is not properly addressed as Mr Dijkstra also views it through the lens of the wrong reason for it being stopped i.e., the OH issue which we know post-dated the decision to stop company sick pay. He does not address the reason given by the Respondent for the suspension in terms of reasonable exercise of discretion. That is sufficient for Mr Dijkstra’s decision on this point to be fatally flawed.

[111]Whilst there is no evidence at all before me about others being treated the same as the Claimant in terms of the company sick pay, it seems to me that the fact that others may also have been treated unfairly does not assist Mr Dijkstra’s reasoning. The policy states that each decision is on a “case by case basis” i.e., discretion will be exercised according to the circumstances of each case. In those circumstances length of service and an exemplary previous attendance record would be highly relevant considerations and Mr Dijkstra erred to suggest it would not. I do not accept that the Claimant agreed that good previous attendance was not relevant (600) as all the Claimant was saying was that long service did not obligate the payment to be made and that is different to saying that it should not be a consideration. Mr Dijkstra states that as there was a consistent response then it was right. Again, I reiterate I have no evidence to support other individuals being treated in the same way but even I did Mr Dijkstra did not properly consider whether the exercise of that discretion was nevertheless incorrect in the Claimant’s situation.

[112]I am satisfied that in relation to the issue of sick pay only Mr Dijkstra erred and the Claimant’s grievance appeal should have been upheld. I am satisfied again that there was no deliberate error on his part and he did approach the matter in good faith, but he simply got that part demonstrably wrong.

[113]The Claimant was disappointed by the outcome to say the least and that is reflected in his email of 21 June in which the following comments appear: a) The Claimant described the appeal as a “disgrace” and that it was the Respondent “stooping to a new low” and that Mr Dijkstra was a “disgrace” who had “knowingly conducted his work in a manner guaranteed to produce a perverse outcome”. b) Mr Dijkstra had “joined with those who have self-interestedly closed ranks around a bully, allowed yourself to be an agent to wrongdoing and have knowingly and deliberately inflicted additional emotional and psychological harm upon me.” c) Like Ms Burrowes, Mr Dijkstra would “rather pretend to be dull witted and ignorant than to face the issues” and that he had taken a “clownish” approach. I have no doubt that the email reflected the Claimant’s genuine strong views but there are parts of his email which are simply just rude.

[114]Mr Dijkstra declined to enter into more discussion with the Claimant pointing out that the grievance process had now concluded and the Claimant responded with a further letter of complaint that ended with the observation that he was observing “another officer of Vitality slip out the back door in the characteristically cowardly manner.” On 27 June Mr Hill from HR wrote again to state that the process was ended and to warn the Claimant to moderate the language and tone of his emails pointing out that there were limits of behaviour which the Claimant would accept. Such warning was appropriate.

[115]On 7 July the Claimant sent in his lengthy letter of resignation (619- 633) stating that the final straw (in a long list) was the handling and outcome of the grievance appeal. He summarises the surrounding circumstances and within the general matrix which has led to the Claimant’s resignation is the withdrawal of Company Sick Pay (630 and 631). This is however but one strand of a substantial string of actions by the Respondent that led to the Claimant’s resignation. General Findings

[116]Prior to dealing with the specific allegations within the List of Issues I will provide my overarching findings having considered the evidence and found the facts as detailed above.

[117]The Witness Evidence – The evidence and the cross examination was conducted in a very professional fashion on all sides. The Claimant provided clear evidence and it was readily apparent that he held a genuine belief in his claim, that the events had had a deleterious effect upon him, and he was saddened by what had transpired and had led to his departure from the Respondent. He held a very firm and fixed view as to his position at the hearing as he did during the process detailed above but was able to reflect that there were times where he had fallen short of his own professional and personal standards in some of the correspondence which he had sent out to officers of the Respondent. In my view he was right to come to that conclusion. I gained the impression of a dedicated professional who had provided the Respondent with good service up to the matters that led to this claim. I have no doubt that the Claimant was, as Mr Pagdin suggested, a highly talented employee. It is undoubtedly sad that things broke down in the way that they did.

[118]The Respondent witnesses also provided a positive impression. They also provided clear evidence and also held a genuine belief that what they had done was fair and appropriate in the circumstances which they found themselves in. I do not accept that they sought to deceive or mislead the Tribunal in the evidence they gave and I find that whilst all were influenced by the overall stance of the Company towards dealing with Covid they sought to act professionally and proportionately in dealing with the issues that arose in their dealings with the Respondent. If there were errors (and any such will be detailed later in these reasons) then they came about as a result of a genuine error or misjudgement as opposed to any individual or more coordinated effort to bring the Claimant down. I reject any suggestion that there was any conspiracy or even individual effort or attempt to “do the Claimant down.”

[119]The Context of the Events – I agree with the Respondent’s submission that the context of these events are material to the matters that I have to consider. It was a time of great uncertainty not only within the Respondent but across the country and, indeed, the world. The Covid pandemic was a real challenge for everybody and was a rapidly changing and uncertain time for employers and employees. The UK government were effectively responding to the changing circumstances sometimes daily and plans were frequently changing which then filtered down to employers to react in ways that they thought best. It would be remarkable if there were not errors of judgment or that with the benefit of hindsight things could have been done in a different / better way. Decisions were made at times without a clear vision of what the future might hold. In such circumstances I accept the Respondent’s position that changes needed to be reacted to sometimes swiftly and that from time to time they would be done without what might be deemed to be full consultation.

[120]In any event not all decisions need to be made after consultation with the staff, although such engagement is often useful. Ultimately it is for the Respondent to determine how they wish to run their business and what policies and procedures they wish to follow. So long as instructions are reasonable then there is an expectation that staff will comply with them and if they do not consequences are likely to follow. Staff have a choice as to how they wish to react.

[121]The Covid Policies – It is readily apparent that the Respondent had a very pro vaccination stance driven from the very top of their organisation. They had a firm view that the best way to control Covid was to have as many people as possible and preferably 100% of staff vaccinated. This policy was not one reached on a whim but I accept was the product of advice they had taken and consideration of the available material and most importantly was in full accordance with the stance the UK government was taking. I fully accept that there were other views including ones that considered the vaccination process to be seriously flawed. It is not for me to take any view on the merits of either side but I am able to conclude that a company that aligns itself with the course of action being put forward by the UK government with all their resources is certainly not taking a stance that is unsupported or in any way unreasonable. There will be some who disagree but from an objective perspective that must be so.

[122]The desire to have all staff vaccinated because the Respondent believed that was the best way to keep staff safe was not unreasonable. It was not the case that the Respondent mandated all staff to be vaccinated and so they still permitted the personal choice of staff in that regard. I am unable to see that encouragement to be vaccinated or indeed promotions to encourage vaccination were inappropriate, the choice whether to be vaccinated or not was still down to the individual.

[123]The preferred hybrid model of working put forward by the Respondent was “2 days (at least together) 3 days apart” (325). The Respondent identified the pros and cons to the business and what it perceived as the interests of staff and came up with the model which was ultimately rolled out on 1 October after a delayed start date. The Respondent are quite entitled to dictate what working model they want from their staff including having them in the office for 2 days a week. Once that decision which in itself is a perfectly reasonable working balance is arrived at then they need to determine what needs to happen so as to ensure that it is a model of working that can be in place whilst protecting the health of the staff which is a statutory obligation. Again, it seems to me that there is no right answer to this but the Respondent came up with a plan which they were looking to test and measure the effectiveness of that hybrid model. In broad terms that was as follows: a) Encourage staff to be vaccinated if possible; b) Identify staff who were not vaccinated or who they could not be sure were vaccinated because they would not disclose it; c) Those staff were deemed a potential threat and so additional safeguards needed to be put in place to ensure the collective safety of all. The safeguard was decided to be a PCP test and in all the circumstances for the reasons set out at paragraph 37 above that was a safety first and reasonable approach to take.

[124]The legitimate aim that has been put forward by the Respondent was to aim to avoid the detrimental impact of home working and to provide opportunities for collaborative working and to aim to create a safe working environment for staff. Both of those aims are, in my view, entirely legitimate.

[125]The Claimant is passionate about the flaws in the Respondent’s reasoning and actions but I am quite satisfied that the Respondent was entitled to put in place the hybrid model and it was reasonable and proportionate to do it in the way they did even accepting that there were alternatives. Further on the basis that this was a decision / stance that was coming down from the very top and which I am satisfied was carefully considered at a senior level before implementation change to that was always going to difficult to force.

[126]Whistleblowing – I have detailed the Claimant’s correspondence that has been agreed to be his first protected disclosure at paragraphs 15-20 above and it starts off with the Claimant expressing his deep concern that the Respondent was urging recommending and advising people to undertake a medical intervention and he asked the Respondent to review some links that he believed indicated that the vaccination had led to substantial amounts of “personal tragedy” (302). He described his belief that the Respondent was acting unethically, inappropriately, recklessly, and irresponsibly.

[127]The response from Mr McClaran was that their obligation was to keep people safe and that they had relied on government guidelines and clinical experts. He pointed out that the choice whether to be vaccinated or not and whether to tell the Respondent was voluntary. The Claimant is entitled to not agree and he makes it clear that he does disagree. He is not prepared to agree to disagree and continues pursuing his point even when the Respondent suggests to him that the policy has been carefully considered. The Respondent does listen to the Claimant to some extent as it makes an amendment to its FAQ re making the right not to be vaccinated clearer and they seek to end the dialogue by indicating they respect the Claimant’s view and asks that he respects their contrary view.

[128]The Claimant is persistent and the Respondent is polite but firm in their view too which they believe is amply supported and been appropriately scrutinised at a senior level. It is not unreasonable where there is a dialogue which is absorbing substantial amounts of management time to bring it to a close as Ms Parfitt eventually does suggesting that if he believes he has an ethical conduct issue he should bring the same under a whistleblowing complaint. It is noteworthy, in my view, that the Claimant is directed to the whistleblowing process by Ms Parfitt and there is no evidence at all of the Respondent seeking to hold anything other than a respectful difference of opinion over the protected disclosure the Claimant has lodged over this series of persistent emails.

[129]The Claimant puts in his formal whistleblowing representations on 1 October, just as the hybrid working system is about to be put into operation. The Respondent’s policy appears to be one that has appropriate safeguards with an Appropriate Person being allocated to it (Mr Allibone in this case) and additional scrutiny being applied by a ”whistleblowing Champion” (Mr Crossley). The Claimant’s disclosure was lengthy and detailed and followed the themes set out in his original correspondence with Mr McClaran and Ms Parfitt, but with far more detail.

[130]The enquiry process did not take long to complete and the findings of the Respondent were back with the Claimant by 11 October 2021. I can understand the Claimant’s scepticism as to the efforts that Mr Allibone made. There is reference to a meeting on 4 October 2021 but there is no documentation relating to the same. I am quite satisfied that there was no “deep dive” into the concerns that the Claimant raised. I accept they were discussed but also I am quite satisfied that the Respondent had a pretty set view of what they were undertaking and that had followed discussions at Board level and ExCo and external legal advice. The Respondent were quite sure of their path and quite simply did not accept the broad points that the Claimant was making and were not prepared to go into the level of detail that the Claimant was asking of them. The Respondent reiterated their position and when the Claimant expressed his dissatisfaction on 11 October further external legal advice was sought from the Respondent’s external solicitors, after which there was no change to the Respondent’s position.

[131]I find that the Respondent’s view of the whistleblowing was that it was nothing to be concerned about. Rightly or wrongly, they believed the stance they were taking was correct and the Claimant’s was incorrect and whilst they were prepared to consider it to some extent they were certainly not prepared to consider matters in the same level of detail as the Claimant wanted. In reality the fact that the Claimant had raised whistleblowing issues was not something that really raised any particular qualm or concern with the Respondent, such was there belief that they were following an appropriate, safe and legal course. I am not satisfied that the Claimant was perceived in any adverse way because he had raised the disclosure. He had raised it, the Respondent did not agree with what he said, time to move on. I find it was the Claimant who was unable to do so and not the Respondent.

[132]The Disciplinary Proceedings – These were simply a natural consequence of the policy and disciplinary action was countenanced from the very start for those who did not comply whatever their reasoning for that. In a manager update issued on 1 October it was made clear (343) that if staff failed to attend the office on a day when they were meant to be in the office or failed to provide a PCR test then the employee would be advised that such absence would be deemed to be unauthorised and that those who have repeated episodes would be subjected to the disciplinary procedure. That would be the same whether or not a particular philosophical belief was held or a protected disclosure had been raised. Any disciplinary action would be for the failure to attend the office / failing to comply with what was deemed to be a reasonable management instruction. At any discipline hearing the employee would be able to explain why he did not attend and/or why the management instruction to do so, in their own circumstances, was unreasonable.

[133]That process was initiated with the Claimant but then placed on hold pending his grievance. There was no reason why the points he raised within the grievance could not have been raised in the context of the disciplinary process i.e., his points of grievance would go to the unreasonableness of the management instruction. There was evidence of other staff who were similarly disciplined for not attending the office.

[134]The Grievance - The Claimant’s allegation is not that there were failings in the grievance process on the basis of carelessness or incompetence but that any failings were deliberate and from his correspondence it is clear that it was because he believed that a decision had already been made that he was going to be dismissed or treated in such a way so that he would leave the Company. It follows that he believes this was a combined effort by the various HR officers who were involved plus Ms Burrowes and Mr Dijkstra. The suggestion also is that there were others at a senior level who also wanted the Claimant out and, of course, that the reason the Claimant was treated in this manner was at least partly to do with the fact he had made protected disclosures / his philosophical belief. I find that the Claimant exaggerates his importance within the Company and I do not accept that there was any sort of widespread dedicated conspiracy against him.

[135]The Claimant’s grievance was not a straightforward one to deal with. It was lengthy and detailed. The Claimant complained when the whistleblowing was completed in just over a week as that was insufficient to look at it in depth and then complains when it takes a lot longer too.

[136]I accept that the grievance took longer to deal with than would have been best practice but that is likely to be the situation when your grievance is as lengthy and detailed as the Claimant’s. The grievance cannot be looked at on its own but must be looked at in the context of the workplace as a whole. It is very easy to be drawn into a Claimant centric universe but in reality the context was very difficult times for management during the pandemic and individuals working on the grievance with many other managerial tasks to perform.

[137]I consider that the work done on the grievance was proportionate and reasonable taking into account the context. It was not feasible for the Respondent to go into the level of detail the Claimant had done and I have considered the summary Ms Burrowes worked to and consider it to be a reasonable summary of the key points. It is not reasonable for the Claimant to expect others to have the same drive and commitment to the issues as he clearly had. The Claimant’s complaints were but one work strand for those dealing with his grievance.

[138]The grievance was not mismanaged. It took longer than one would have hoped but there were proper reasons for that. I accept that it was not dealt with in the depth and with the passion the Claimant had for the issues but there was no obligation for that to be matched. Most correspondence was answered, maybe not to the depth that the Claimant would have wanted but in my view the Respondent showed substantial patience despite the Claimant frequently crossing the line in comments made.

[139]I find that both the grievance and the appeal were dealt with in good faith and proportionately by those who heard them. Due to the very deep rooted belief within the Respondent that the way that they were dealing with Covid and the return to work had been validated at the highest levels and was validated broadly by the UK government stance and external legal advice it was always unlikely that the Claimant’s arguments would win out but I am satisfied that they were considered and rejected on objectively reasonable grounds, save for the issue of sick pay which I have dealt with above and concluded that the Respondent erred both at first instance and on appeal. Protected Disclosure Detriment Claims

[140]Section 47B of the ERA 1996 reads as follows, so far as is material: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.”

[141]The use of the phrase 'subjected to' imports ordinary ideas of causation and does not require a further element of wilfulness and/or control of events on the part of the employer. 'Detriment' is not defined in the statute, but it is a well-known concept in discrimination law, and it is proper to apply that case law there under this section i.e., that there is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment: In particular, 'detriment' is to be given a wide interpretation.

[142]This formulation means that there is a causative element, namely that the protected disclosure needs to have materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower: Fecitt v NHS Manchester

[2012] IRLR 64

. Moreover, the test here is not the same as that for dismissal for whistleblowing in s 103A where it must be shown that the protected disclosure was the reason or principal reason for the dismissal.

[143]The requirement of causation means that it is possible for an employer to defend a claim on the basis that the reason for the detrimental treatment was not the doing of the protected act in question, but the unacceptable way in which the Claimant did it. This was established in Martin v Devonshires Solicitors

[2011] ICR 352

, EAT (a discrimination law case). In the whistleblowing case of Panayiotou v Kernaghan

[2014] IRLR 500

, EAT, it was said that the distinction is logical and that there is no requirement of exceptional circumstances, though it was also accepted that a tribunal must be alive to the possibility of spurious defences by employers relying on such circumstances.

[144]S 48(2) ERA applies to all detriment claims which are brought under s 47B ERA (which includes whistleblowing cases) and is drafted in the following terms: “On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

[145]The statutory burden is on the employer to show on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act i.e., that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer's treatment of the employee: Fecitt.

[146]However, it is important not to cast that burden too highly and to apply the statutory wording. Although it may at first look like the well-known statutory reversal of the burden of proof in discrimination law (EqA 2010 s 136]), it appears that a direct analogy is not to be drawn with that discrimination law position which mandates a finding for the Claimant if the employer fails to convince the tribunal of its version of events (Serco Ltd v Dahou

[2017] IRLR 81

). This concerned detriment on trade union grounds, under TULR(C)A 1992 s 148 which uses similar wording (“…it shall be for the employer to show what was the sole or main purpose…”). The tribunal had considered that this was indeed to be interpreted in the same way as the burden of proof reversal in discrimination law, but the EAT (

[2015] IRLR 30

) pointed out that the wording there is different, actually requiring the tribunal to find against the employer if it does not satisfy the burden. TULR(C)A 1992 s 148, however, was said to be cast in terms which are more in line with those in the ERA 1996 s 48(2) which, according to Kuzel v Roche Products Ltd

[2008] IRLR 530

, CA (a case on whistleblowing dismissal, but showing a similar approach). This means that if the employer fails to show an innocent ground or purpose, the tribunal may draw an adverse inference and find liability but is not legally bound to do so. At para 53 Simler J summed the position up as follows: ''Accordingly, if a tribunal rejects the employer's purported reason for dismissal, it may conclude that this gives credence to the reason advanced by the employee, and it may find that the reason was the one asserted by the employee. However, it is not obliged to do so. The identification of the reason will depend on the findings of fact and inferences drawn from those facts. Depending on those findings, it remains open to it to conclude that the real reason was not one advanced by either side.'' That point was endorsed by the Court of Appeal.

[147]One other point of law arose in the appeal in Dahou, concerning the position of the claimant in a case such as this and the whole question of when the statutory reversal is triggered. Does he or she have to produce some evidence of the illegal reason in order for the ultimate burden to be reversed? The EAT decision in Yewdall v Secretary of State for Work and Pensions

UKEAT/0071/05

suggested that, like discrimination law, there is an initial burden on the claimant to show a prima facie case. It has been argued that as a matter of policy this places too high an onus on the Claimant, but in the Court of Appeal's decision Yewdall is cited at some length and with approval, the judgment stating that 'the burden of proof only passes to the employer after the employee has established a prima facie or arguable case of unfavourable treatment which requires to be explained'. To this limited extent, discrimination law does act as a precedent here. Conclusions on Protected Disclosure Detriment Claims

[148]I have already made the finding that the Respondent was not unduly exercised by the fact that the Claimant had raised protected disclosures and that they were perfectly content with their stance in relation to their promotion of the vaccine and the steps they had put in place to bring about their hybrid model. I do not accept that the Respondent subjected the Claimant to any detriments on the ground that he had made either of the protected disclosures. At a later stage during the grievance, I am able to detect an increasing irritation at the manner in which the Claimant is putting forward his views and complaints but even that it relatively minor. That is clearly within the Panayiotou exception above in any event. It follows that each of the detriment allegations are not well-founded and are dismissed but I will deal with each in turn.

[149]8.1.1 - Initiating disciplinary proceedings against the Claimant on 19 November 2021 Factually it is correct that the Respondent instituted disciplinary proceedings against the Claimant, by letter, on 19 November 2021 (438-440). It is apparent that similar proceedings were issued against two other individuals and it appears that this was part of a co-ordinated policy to enforce the hybrid working model that had been decided upon. It is readily apparent that the Claimant did not attend on the days that the company obliged him to and that was a management instruction that he had plainly ignored. Any disciplinary hearing would deal with why he had not attended and whether the management instruction was reasonable. The Claimant could have attacked the reasonableness of the instruction on the basis of the matters that he plainly raised in his grievance and a decision would have been made. In all the circumstances I find that there was nothing unreasonable about the Respondent seeking to enforce a working policy that they believed was necessary and prudent. Equally there would have been nothing unreasonable about the Claimant vigorously challenging the Respondent as to their stance within the context of a disciplinary hearing (or outside of it). What is abundantly clear is that the policy was applied across the board and there is not a shred of evidence that the initiation had anything whatsoever to do with the Claimant’s previous whistleblowing. There is no evidence that Ms Streeter who guided Mr Pagdin through the process even knew that the Claimant was a whistleblower and a general view that disciplinary action was possible re the absences was mooted by Ms Streeter to managers on 12 October 2021. There is no evidence that either Mr McClaran or Ms Parfitt, who did know of the whistleblowing were involved in disciplining the Claimant. The reason for the disciplinary hearing is plain and obvious in that it was a natural consequence for those not complying with what the Respondent believed was a reasonable management instruction. Whilst initiated it was paused during the Claimant’s grievance This allegation of whistleblowing detriment is not well-founded and is

[150]8.1.2 - Ceasing Company Sick Pay from 22 December 2022 Factually it is correct that the Claimant’s Company Sick Pay expired on 22 December 2021 and it was formally communicated to him that he would be on Statutory Sick Pay in that email and a further one dated 10 January 2022 (456 and 459). In his witness statement Mr McClaran states that he had ownership of the sickness absence policy and I have referred earlier to the relevant parts of that at paragraph 69 above. There are guidelines (although sparse) but ultimately such decisions will be taken on a case by case basis by the employee’s manager. When the Claimant informs the Respondent on 22 November he is going to be absent sick due to “chronic stress and acute anxiety”, he is initially self-certificating for a week (445) and then books off for another week on 28 November (444) and indicates that there will be a delay in getting his paperwork over due to staffing problems at his GP. On 3 December the Claimant sends a sickness certificate that covers him until 12 December (446). The Claimant makes the point, which has not been challenged that he has had “an impeccable attendance record over 20 years”. The Claimant is paid company sick pay for this period without query although there is no indication as to how that came about i.e., conscious decision or just by custom and convention. Mr Pagdin, the Claimant’s line manager, makes no mention of the decision to either institute or to ultimately stop sick pay even though it is, on the policy, his decision. Even in Mr McClaran’s statement the identity of the person who made the decision is not notified with all decisions being attributed to “Vitality” as an entity. On 20 December Ms Ruddock (who did not give evidence at this hearing) sensibly suggests referring the Claimant to OH because the Claimant has been off for 4 weeks (449). Although the Claimant has a Fitness Certificate from his GP dated 14 December signing him off for 2 weeks he did not send that into his employer but that was a temporary default and nobody suggested sick pay was ceased for that reason at the time.. This failing was picked up by Ms Ruddock in her email of 22 December (456) and she asked for an update in respect of the Claimant’s health condition and to send in any further sick notes. She also informs the Claimant that he is going onto Statutory Sick pay or rather that his Company Sick Pay is going to cease from that day. No reason is given. The principal question is why? The Claimant has an exemplary sickness record and has been absent on this occasion for a relatively modest time period. There are no guidelines in his contract which would suggest that in his case there was any reason for it to stop. There is no evidence that Mr Pagdin whose decision it should have been was involved at all. Mr McClaran refers to “Vitality” as a corporate body but does not assist with who it was. Mr McClaran in his statement (para 30) indicates that matters which would likely have an effect on company sick pay would be: a) Length of Absence b) Employee’s engagement with the sickness absence process c) Failure to engage with their manager d) Consent to OH appointments without good reason. Mr McClaran at paragraph 31 states that the decision was made because: a) The initial absence was because the Claimant would not come into the office; b) The Claimant would not consent to OH. Mr McClaran accepted that the second of these could not actually have played a part in the decision because the Claimant’s refusal of OH came a day after the decision to remove his sick pay could be held. The Claimant immediately raised the issue that the removal of sick pay was unfair and maintained that stance throughout his employment. The Claimant was not provided with any explanation in Ms Ruddock’s initial letters dated 22 December, but in an email dated 10 January she does indicate that the removal of the discretion is because of the second reason given by Mr McClaran i.e., “the initial cause of the absence is related to our return to office requirements.” I find that to be the reason for the decision to stop the sick pay. I find that the Claimant was treated harshly and wrongly over the suspension of his sick pay. He had been off for a comparatively short time and he was an individual with a previous exemplary attendance record. I accept that the reason given by the Respondent was related to the Claimant’s failure to return two days a week for which he was being disciplined and for which the appropriate sanction of some form of warning was to be applied. At page 198 (disciplinary policy) there is no suggestion that an outcome of a disciplinary meeting would result in a financial penalty. From the Respondent’s own evidence, it would appear that the Claimant has been sanctioned by the removal of his pay in respect of his decision not to attend work, before the matter had even been considered at a disciplinary hearing. I do consider that the Respondent’s conduct in this regard is wholly unreasonable but I am equally satisfied however that it was done for the reason expressed by the Respondent in their 10 January letter and not because the Claimant had raised a protected disclosure. I have already stated that the Respondent was not, in my view concerned at all, by the raising of a public interest disclosure and on that basis I find this whistleblowing detriment claim unfounded and dismiss it.

[151]8.1.3 - Deliberate mismanagement of the Claimant’s grievance in that it took too long, it was not properly investigated; the Claimant was excluded from the process in that his correspondence was not answered; and the Respondent redefining the terms of reference without the Claimant’s agreement. I have dealt with the grievance process above and have indicated that: a) The grievance was not deliberately mismanaged; b) Whilst it took longer that would have been ideal that was inevitable taking into account the detail of the grievance and the other work commitments of those involved on the management side; c) Correspondence was answered, just not in the way the Claimant wanted; d) It was appropriate for the grievance to be broken down into pieces and whilst the grievance was not dealt with to the depth the Claimant wanted, it was dealt with reasonably and proportionately, save for the sick pay issue where there were errors. e) In any event the manner the grievance was dealt with and the outcome, both in relation to sick pay and all the other matters had nothing to do with the Claimant’s protected disclosures. The Claimant’s allegations at 8.1.3 are not well-founded and are dismissed.

[152]8.1.4 – Failing to respond to the Claimant’s written notifications of stress by, for example, investigating health and safety concerns arising from stress. This particular matter was not the subject of great scrutiny in the hearing, but the reality is that Mr Pagdin in November responded the same day when the Claimant indicated he was suffering from stress and anxiety by signposting the Claimant to “channels of support” and to the EAP. In addition, there was suggestions of OH involvement which could have led to further enquiries / treatments being put in place. I do not accept that there was a failure to respond and to the extent there was any default it had nothing to do with the making of a protected disclosure. This Claim is not well-founded and is Protected Belief

[153]The Claimant’s protected belief in the List of Issues is set out at paragraph 4 above but will not be set out again here for ease of reference: “The Claimant relies on a belief that the valid initiation of medical treatment or investigation is conditional on the freely given and informed consent of the competent individual concerned: consequentially medical decisions are a matter of personal responsibility and refusing treatment or investigation in relation to COVID-19 upon the authority of one's independent judgement is OK because such personal decisions must be respected”.

[154]In the Claimant’s Claim Form the belief was set out as being: “initiation of medical treatment or investigation is inherently conditional on the free consent of the individual concerned” (14) That description of the belief was repeated in the Case Management Hearing with EJ Gray on 8 March 2023. I am satisfied that the List of Issues description does not materially alter the basis of the Claimant’s belief.

[155]Any belief is tested against the Grainger criteria in order to assess whether or not it falls within the ambit of the Equality Act 2010. In this case the Respondent accepts that the belief was: a) Genuinely held by the Claimant; b) Went to a weighty and substantial aspect of human life and c) Was worthy of respect in a democratic society; but the Respondent did not accept that it was: a) An opinion / viewpoint as opposed a philosophical belief and b) It was not sufficiently cogent.

[156]The requirement that the belief must be more than an opinion or viewpoint stems from remarks made by Mr Justice Elias in McClintock v Department of Constitutional Affairs

2008 IRLR 29

. He stated that, to constitute a belief, there must be a religious or philosophical viewpoint in which one actually believes and it is not enough ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’.

[157]In Grainger, Mr Justice Burton rejected the contention that science- or evidence-based beliefs are incapable of amounting to a philosophical belief. Burton J thought that nothing in McClintock actually precluded science-based beliefs, so long as they met the criteria set out in his judgment. Thus, an ethical stance based on a science-based belief in potentially catastrophic climate change was perfectly capable of amounting to a ‘philosophical belief’. Whether or not it actually did so depended on the tribunal being satisfied that the claimant actually lived according to the precepts of such a belief (my emphasis) and that the employer’s actions were attributable to the fact that the claimant held that belief.

[158]So far as the cogency criterion is concerned Mr Justice Burton expanded on the fourth criterion in Grainger by saying that, notwithstanding the removal of the requirement in what is now S.10 EqA for a philosophical belief to be ‘similar’ to a religious belief, it remains necessary for the belief to have ‘a similar status or cogency to a religious belief’ and by so doing was seeking to sum up the general quality of qualifying philosophical beliefs, namely, that they must possess consistent internal logic and structure (i.e. cogency), provide guiding principles for behaviour (i.e. status), and concern fundamental (as opposed to parochial) matters. Burton J went on to state that even beliefs that do not govern the entirety of a person’s life, such as pacifism and vegetarianism, are potentially covered. He also accepted that the belief does not need to constitute or allude to a fully-fledged system of thought, provided that it otherwise satisfies the criteria. As to coherence, this means simply that the belief must be intelligible and capable of being understood and that does not appear to be a particularly high test.

[159]Beliefs that are broadly expressed may fall foul of the fourth Grainger criterion. In AB v CD Ltd

2025 EAT 73

, the EAT upheld an employment tribunal’s conclusion that the claimant’s philosophical belief in ‘every individual’s fundamental right to freedom, dignity and bodily autonomy and integrity’ did not attain the required level of cogency, seriousness, cohesion and importance, and that it was ‘so wide-ranging as to be meaningless’.

[160]I do not have any real difficulty in understanding what the belief is in the List of Issues. It seems to me that the first part of it is framed as the general belief as set out in the Claim Form and the earlier CMO and the addition that found its way into the final List of issues is merely an explanation of how that belief would sound out taking into account the specific example of Covid. The belief the Claimant puts forward is really quite straightforward in that he believes that any medical treatment is conditional upon informed on freely given and informed consent. Whilst the Claimant’s belief was resonant and relevant during the Covid pandemic I am quite satisfied that it falls on the philosophical belief side and not on the opinion or viewpoint side of the line. The Claimant does hold strong views about the safety etc. of the Covid vaccine and that is the main thrust of what he put forward in relation to the whistleblowing and the grievance but I do not consider that that alters the strong belief the Claimant holds as set out. Further I do consider the belief to be sufficiently cogent and I reject the matters put forward by the Respondent’s counsel at paragraphs 8-13 of her closing submissions. There may be an issue as to whether the correspondence wherein the Claimant challenges the Respondent on matters specifically focusses in on the belief he relies upon but that it is a different matter.

[161]To some extent it does not really matter whether the belief falls within the EqA, because I am quite satisfied that the Respondent was not in the slightest bit fazed by the Claimant’s belief. As I have indicated within the whistleblowing part of these reasons the Respondent were quite satisfied that they were right and would have been quite content to agree to disagree over the issue. So far as they were concerned for all the reasons previously cited they considered that they were acting in a reasonable way to seek to ensure that members of staff were safe when coming into work on the hybrid working model. If members of staff were vaccinated, exempt or were prepared to undertake the necessary tests then they could come into work as the Respondent wished. If individuals exercised a choice not to follow this course that was a matter for them and they would ultimately run the risk of being disciplined. That was a choice they were able to make. The Claimant was not treated in the way he was because of his belief; he was treated in the way he was because he did not attend in the office when instructed to do so. Belief Harassment Claims

[162]These claims can be dealt with comparatively shortly. The three factual allegations that are the subject of the harassment claims did take place. The Respondent did run an internal marketing campaign promoting the Covid vaccine and did so even after the Claimant raised concerns about the campaign and they did want to have as many people within the Company vaccinated as possible and would have been entirely satisfied with and included a desire for a 100% take up.

[163]It is clear from the Claimant’s correspondence as set in the bundle and from the evidence tendered at the hearing that such an approach was unwanted by the Claimant. It was, of course a campaign that targeted the whole workforce but included the Claimant. I agree with the Respondent’s submissions that there is no evidence to support that this approach was taken with the purpose of violating the Claimant’s dignity etc and I find that it was a campaign that was founded on the respondent’s strong belief that vaccination was the best way to keep their staff safe in line with government guidance and that in those circumstances they had a duty to promote that. Staff were not forced to be vaccinated and ultimately could make their own choice as the Claimant did. That was reiterated in the FAQs at page 242 issued just before the proposed return to the office.

[164]I accept the Claimant’s evidence that it had the effect of creating a hostile environment for him but I do not accept that it was reasonable for it to have that effect taking into account the Claimant’s perception and the other circumstances of the case. I agree with the Respondent’s closing submissions that the Respondent was in fact following government guidance in respect of the vaccine and had also considered and formed their own view in respect of the stance they took. There was nothing unreasonable or threatening viewed objectively of the communications (or the number of them) which were sent out about the vaccination. At 242 it was said by the Respondent that it respected any choice not to be vaccinated and that vaccination status did not have to be disclosed and set out the basis upon which such individuals would be able to come into the office when required. Having taken into account all of the relevant evidence I am quite satisfied that the Claimant’s harassment claims are not well-founded and are Belief Direct Discrimination

[165]There is a single allegation which reads that the Respondent’s creation of a policy that affronted the Claimant’s belief was an act of direct discrimination. The “policy” was defined at a previous Case Management Hearing as being the Respondent promoting vaccination and having a 100% target and “requiring people who work in the workplace from October 2021 be vaccinated, that employees inform the Respondent of their vaccination status and employees were to provide a weekly negative PCR test if they were unvaccinated.”

[166]Those policies applied to all staff regardless of whether they had the Alleged Belief, rather than only applying to the Claimant and any others who held the Alleged Belief and in those circumstances the Claimant is unable to demonstrate that there was any less favourable treatment of any particular group holding any particular views. From the evidence the direct discrimination claim is unfounded and is dismissed. Indirect Belief Discrimination

[167]The pleaded PCP is as set out at paragraph 5.1 of the List of Issues: “The PCP is to require people to work in the workplace on October 2021, requiring employees to inform the respond of their vaccination status and to provide a weekly negative PCR test if they were unvaccinated” Part of that PCP is factually incorrect in that employees were not required to disclose their vaccination status but I find that that part of the PCP can be taken out so that the PCP still makes sense as follows: “The PCP is to require people to work in the workplace on October 2021 and to provide a weekly negative PCR test if they were unvaccinated”

[168]This requirement came to an end on 9 December 2021 when the requirement to work in the office for 2 days a week came to an end. I accept that this claim is out of time by just over five weeks. It is correct that the burden lies upon the Claimant to demonstrate that time should be extended but time can still be extended even if no representations are made. The Respondent has not asserted any prejudice that falls upon them in defending the discrimination claims and so I consider that the indirect discrimination claims and indeed the other discrimination claims should have the time extended.

[169]The Respondent did apply the PCP to come into the workplace from October 2021 and those who were unvaccinated were asked to provide a PCR test but also importantly that was the same for those who chose not to disclose their vaccination status for whatever reason and those who had recently been vaccinated also had to provide a test.

[170]The next step in an indirect claim is for the Claimant to demonstrate that the PCPs in question caused both group disadvantage and individual disadvantage and the burden of proving that falls on the Claimant. Disadvantage is not defined within the EqA but the EHRC Code likens it to a detriment. It is enough that a worker can reasonably say that they would have preferred to have been treated differently.

[171]Assessing particular disadvantage is a comparative process. Section 23 (1) EqA 2010 requires that when comparisons are made there must be no material difference between the circumstances related to each case. The comparison in an indirect discrimination claim requires comparisons between groups of employees.

[172]The Claimant needs to show that the PCP disproportionately placed at a disadvantage a group of people who share the Claimant’s belief compared to those who do not share it.

[173]There are no statistics available which might assist the Claimant as he does not actually know and cannot reasonably surmise as to what other’s beliefs might be and why it might be that they find themselves affected by the PCPs. There is no expert evidence that has been led nor is there any evidence from individuals other than the Claimant. This is not a case where the Tribunal can take judicial notice of any specific disadvantage. The Claimant has not at any point identified the specific pools which might apply in this case.

[174]Whilst one can see that those who were unvaccinated or who chose not to disclose their vaccination status were placed at a disadvantage because they would have to pay for a PCR test but that distinction does not correlate with those who held the belief and those who did not because there could be many reasons why individuals who had not been vaccinated had chose not to be so (fear of needles, previous bad reactions to vaccines, religious beliefs). I have carefully considered the Respondent’s representations at paragraphs 21.1 to paragraph 22 of the Respondent’s closing submissions and accept the points made there and conclude that the Claimant is unable to show either group or individual disadvantage.

[175]Even if I am wrong about disadvantage it is clear from my findings of fact that I accept that the PCPs that remain are objectively justified and so the claim would fall at that hurdle.

[176]There is a legitimate aim in respect of the PCP in that a) Seeking to Avoid or reduce the detrimental impact that homeworking was having on some employees’ mental health and working conditions and providing staff the opportunity to work collaboratively and to benefit from the experience and support of colleagues which would also benefit the Respondent. b) Creating a safe working environment for all employees when they did come together.

[177]I accept that both of those can be described as legitimate aims and there was little or no challenge to that during the course of the hearing. When considering proportionality, one must balance the importance of the aim against the discriminatory impact of the PCP on the group. The clearer the disadvantage than more compelling the justification will need to be. The tribunal must also consider whether or not the same aim could have been achieved by less discriminatory means. The balancing exercise requires a careful consideration of the evidence and the burden of demonstrating objective justification falls on the Respondent. 178. . I accept that the means by which the Respondent sought to bring in the working in the office was proportionate in that they took a phased approach and were moderate in the number of days that they required attendance and if medical imperatives dictated an individual could not attend that was facilitated. I consider the safeguards that were put in place were also proportionate and supportive of the aims.

[179]In broad terms the PCP seeks to get people back into the workplace for a minority of the week safely so that the benefits set out of working in close proximity can be delivered safely for all. For all of the reasons / findings about the steps taken by the Respondent set out earlier in this Judgment at length I am satisfied that with the safety of staff being the Respondent’s paramount consideration that adopting the belt and braces of the PCR test was the minimum that was required and that at that point for the reasons set out in the FAQ document set out at paragraph 37 above rendered the test necessary. I find that the issue was carefully considered and kept under review appropriately and that the steps that the Respondent took were proportionate.

[180]The Indirect Belief Discrimination claim is not well-founded and is Unfair Constructive Dismissal

[181]The statutory basis for constructive dismissal is set out at section 95 (1) (c) of the ERA 1996 and that section states that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[182]It follows that the test for constructive dismissal is whether the employer’s actions or conduct amounts to a repudiatory breach of the contract of employment (Western Excavating (ECC) Limited v Sharp

(1978) 1 QB 761

[183]It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v BCCI SA

(1998) AC 20

[184]Any breach of the implied term of trust of and confidence would amount to a repudiation of the contract of employment and the test of whether or not there has been a breach of the implied term is objective (Malik at 35C). There is no need to demonstrate intention to breach the contract. Intent is irrelevant.

[185]A relatively minor act may be sufficient to entitle the employee to resign and leave the employment if it is the last straw in a series of incidents. The particular incident which finally causes the resignation may in itself be insufficient to justify that action, but that act needs to be viewed against a background of such incidents that it may be considered sufficient to warrant treating the resignation as a constructive dismissal. It is the last straw that causes the employee to terminate a deteriorating or deteriorated relationship.

[186]It is clear that the repudiatory conduct may consist of a series of acts or incidents, some of which may be more trivial, which cumulatively amounts to a repudiatory breach of the implied term of trust and confidence. The question to be asked is whether the cumulative series of acts alleged, taken together, amount to a repudiatory breach of the implied term. Although the final straw may be relatively insignificant, it must not be entirely trivial. It must contribute something to the preceding acts.

[187]The paragraphs prior to his one within this section are a summary of Lord Dyson’s Judgment in London Borough of Waltham Forest v Omilaju

(2005) ICR 481

. In Kaur v Leeds Teaching Hospitals NHS Trust

(2018) EWCA Civ 978

it was identified that normally it will be sufficient to answer the following questions to ask the following questions to establish whether an employee has been constructively dismissed: a) What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation? b) Has he or she affirmed the contract since that date? c) If not was that act or omission in itself a repudiatory breach of contract? d) If not, was it nevertheless a part of a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence? e) Did the employee respond to that breach? Conclusions of Constructive Dismissal Claim

[188]There is a very lengthy list of matters that the Claimant asserts has fed into his claim of constructive dismissal. Some matters are very similar and can conveniently be grouped together and others have already been determined in the previous course of these reasons. I will deal with them in the order they have been presented but will try not to repeat reasoning which is found earlier in this Judgment

[189]I remind myself that every employer is required to take steps to ensure a safe working environment for their staff. There will inevitably be a range of steps that may be taken and what is deemed necessary and reasonable by one employer will not necessarily be replicated by another employer. Similarly, the steps that are taken may be acceptable to one employee and not another.

[190]As well as ensuring the safety of the working environment it is for the Respondent to dictate how the work should be done i.e., whether work can be conducted at home or whether it should be conducted in the workplace. If staff do not comply with what objectively are reasonable management instructions then it would not be unreasonable for the Respondent to seek to discipline those who do not comply. If there was carte blanche to refuse to undertake reasonable management instructions then chaos would reign.

[191]There are, of course, many differing views about Covid and the best ways to stop the spread of Covid, vaccination and what is required to make staff safe in the workplace. The Respondent had their strongly held view and the Claimant had his. They diverged substantially.

[192]I do not accept that the policy requiring staff to come back in two days a week and for those staff to be either vaccinated, exempt, or tested via the PCR test was unreasonable at all and certainly did not amount to a breach of the Claimant’s contract of employment. I do not accept that it imposed on the Claimant any new terms or conditions as suggested at 9.3.1 of the List of Issues. It was merely asking the Claimant to attend at the office for two days a week in a healthy state and putting in place, in my view, reasonable safeguards for other staff. Other employers could have asked for a lateral Flow Test or perhaps nothing at all but the Respondent’s belt and braces approach was wholly reasonable. (Also (9.3.26 and 9.3.27).

[193]I do not accept that the policy intruded and interfered with the Claimant’s right to make medical decisions. He could still make those decisions i.e., choose not to be vaccinated, choose not to inform of his vaccination status and choose not to take the required tests that flowed from those decisions. If it was an intrusion / interference then I find that it was a reasonable interference in order to promote legitimate aims. The Claimant was not forced to be vaccinated but was simply asked in the absence of vaccination to undertake a test to show that he was fit to attend (9.3.2).

[194]I do not consider that there was anything amiss in the Respondent recommending or even urging staff to be vaccinated and thereby following the British government’s approach to the best way to manage Covid. The Claimant was entitled to disagree and no doubt he can point to a body of science that suggests that vaccination was counter indicated. On the other hand, it was not unreasonable for the Respondent to fall in line with the other side of the debate which recommended strongly vaccination. This was neither a breach of contract of itself nor was it a contributing factor to one as I find that the Respondent had reasonable and proper cause to act in the way they did (9.3.3).

[195]I do not accept that the Respondent “introduced mandatory vaccination to the approval of Vitality’s directors” (9.3.4) and I can see no issue in the Respondent seeking to have all employees vaccinated. The Respondent could ask and encourage and seek to persuade, but ultimately the employee had a choice (as the Claimant did) to reject the Respondent’s entreaties. I do not accept that objectively viewed the output from the Respondent on the topic can be seen as harassment (9.3.5 and 9.3.6).

[196]The Claimant describes the Respondent as prying into medical privacy (vaccine status) to identify targets for direct discrimination. I find the very thought of a Respondent or indeed this Respondent going through that process in order to target those who did not comply as absurd. The Respondent were mindful of their obligations to keep individuals safe. They decided to do that by only permitting individuals into the office if they were vaccinated, exempt or could show that a contemporaneous certain test had been complied with. As I have already indicated that was not unreasonable. It was not unreasonable for them to ask an individual’s vaccine status so that they knew whether or not a test had to be provided. At no point did the Respondent obligate a response, although I do accept that they could and should have communicated the no-response option in a clearer fashion (9.3.7).

[197]I do not accept that there was any obligation on the Respondent to consult in relation to the steps they decided to take relating to health and safety. That period of time was one of great stress and difficulty for employers and there are times when, in my view, decisions just have to be taken. I do not accept that a failure to consult on what was always likely to be a fast changing situation comes anywhere close to amounting to a breach of the Claimant’s contract or contributing to a later breach of contract by being a relevant straw (9.3.8).

[198]I do not accept that there was a failure to investigate the Claimant’s protected disclosures. I accept that the Respondent did not put in the effort that the Claimant wanted them to but the Respondent believed that the stance that had taken had been fully discussed and approved at a high level over a period of time and in that sense had front loaded the enquiries which were required. When the Claimant raised his issues it was discussed and considered but with the background described above. I consider that the Respondent’s effort was sufficient in all the circumstances (9.3.9) (9.3.11) and (9.3.14).

[199]The Respondent did not require the Claimant to disclose his vaccination status. He could elect to do so or not. It is correct that for a short period the Claimant was asked to provide a PCR test but the Claimant ignored that entreaty and neither provided a test nor was out of pocket. The consequence of disciplinary action was never finally imposed upon him. As I have indicated earlier I deem this to be reasonable in all the circumstances.

[200]It is correct that there was no resolution over matters raised by the Claimant in respect of the contract dispute as both sides held their view to the end. I have found that there was no breach of contract and so there is nothing unreasonable about the Respondent holding their view (9.3.12)

[201]The Respondent did take disciplinary action against the Claimant although it was never finished. I do not consider that the word threat is appropriate – the Claimant was warned as to what would happen if he did not comply and I consider that to be wholly appropriate so that the Claimant could take his decisions fully informed as to what the consequences would be (9.3.13).

[202]The matters raised at (9.3.15) have been dealt with above at paragraph 152 above. I do not accept, for those reasons, that there was the failure to act in relation the Claimant’s reports that stress and anxiety was being caused by the grievance.

[203]I have found above that the Claimant was not subjected to any detriments for making public interest disclosures (9.3.16) and (9.3.18).

[204]The Claimant accuses the Respondent of bullying (9.3.17). A workable definition of bullying is repeated, unwanted, offensive, or intimidating behaviour that aims to humiliate, undermine, or harm someone. Whilst I acknowledge that the Respondent’s application of the return to the workplace process was unwanted and that the Claimant did find it offensive, I do not accept that the Respondent ever set out to humiliate, undermine or harm the Claimant. I do not accept that there was any personal hostility to the Claimant at all, save perhaps for some irritation when the Claimant’s own correspondence became hostile and offensive. At that point individuals who were concerned and irritated with their integrity and conduct being impugned in trenchant terms is hardly surprising and the Claimant himself accepted, in hindsight, that some of his correspondence was regrettable.

[205]I have dealt with the stopping of sick pay at some length above. Payment of that sick pay was discretionary. I have explained that I consider that the Claimant was dealt with very harshly by the decision to stop sick pay at that point and that the Claimant was in effect penalised financially because his illness arose or was related to an action for which a disciplinary allegation that had yet to be heard. It is also correct that despite the Claimant’s entreaties he remained on statutory sick pay for the rest of his employment and that the Claimant was clearly making his protest clear until it was finally rejected. I note that the payment of company sick pay was discretionary.

[206]The Respondent’s counsel, in her closing submissions, asserted that the decision to stop Company Sick Pay was not of itself a breach of trust and confidence and I will consider that further when I consider the constructive dismissal claim below. She also states that “R took a view that where employees were off sick due to non-compliance with Phase 2 and return to the office, it would only pay SSP”. There is no supporting evidence for that contention or that that “policy” was applied to others. Further whilst it may well be that the Claimant was temporarily not provided a sick note and had not been in contact with his manager, these were not reasons given at the time, nor in Mr McClaran’s witness statement or oral evidence for ceasing sick pay and cannot be relied upon. (9.3.19) and (part 9.3.20).

[207]I do not consider that holding the disciplinary pending the Claimant’s grievance as opposed to quashing the same was unreasonable. A possible outcome of the grievance was that the management instruction was either reasonable / unreasonable which would have then fed into what would happen next on the disciplinary. I find it would have made no sense to quash the disciplinary at that point pre grievance outcome and that taking into account the grievance outcome there still would have been no basis to quash the same. (remainder 9.3.20).

[208]I do not accept that the Respondent sought or attempted to deprive the Claimant of a companion at his grievance meeting. The Claimant asked for his grievance to be dealt with, in a certain way and was reminded by the Respondent that would affect his right to be accompanied if all was done in writing. The Claimant was content to proceed with that in mind (9.3.21).

[209]I do not accept that the grievance was deliberately protracted. It was longer than it should have been but as I have said earlier there were reasons for that (9.3.22)

[210]The Respondent initially appointed Mr Stipp and immediately upon objection by the Claimant changed to Mr Dijkstra. I do not consider that this to be anything other than appropriate HR work as even if they did make an initial mistake (which I do not find they did) they rectified it immediately (9.3.23).

[211]I have found that the grievance and the appeal can be criticised solely on the basis of the clear errors that were made in relation to the sick pay issue where I have found that the Respondent erred at both stages for the reasons given above. To that extent only was the grievance was mishandled, as was the appeal, and the sick pay issue was not resolved and a fair outcome would have been the reinstatement of company sick pay (9.3.24).

[212]The Claimant asserts that there was a failure to follow ACAS Guidance by failing to identify his first protected disclosure emails as a grievance and then failing to interview the Claimant before considering his grievance. The ACAS Code of Practice makes it clear that “what action is reasonable or justified will depend on all the circumstances of the case”. In this case the Claimant was directed firstly to the whistleblowing process to formalise his complaint which was entirely appropriate. Another employer may have recommended the grievance process or either option, but the Claimant was not prejudiced at all by the way he was directed. So far as not being interviewed that was at his request (9.3.25). Conclusions on Constructive Dismissal

[213]Having made those conclusions about the specific matters the Claimant has put forward in support of his constructive dismissal claim I now set out my conclusions on the unfair constructive dismissal. It follows from those findings that the only issue that I have found was unfair / unreasonable relates to the removal of the discretionary sick pay and the failure to rectify those matters during the grievance process. The Claimant asserted that the final straw for the dismissal was the outcome of his grievance appeal.

[214]The first issue that I will address is one of delay. The withdrawal of the sick pay was made on 22 December and the Claimant resigned on 7 July 2022 having received the letter outlining the appeal decision on 15 June 2022. I do not accept that the Claimant has delayed to long and thereby affirmed his contract in the event that I find a breach of contract. The Claimant protested immediately about the withdrawal of his company sick pay and continued to make complaint about it throughout the remainder of his employment and beyond. He, quite properly, raised a substantial grievance about many matters of concern on 12 January and that process went on for approximately 6 months and those time scales were largely dictated by the speed the Respondent worked. There is no sense at all of the Claimant having accepted the issues with his sick pay and so I find that there was no affirmation by the Claimant who was effectively remaining employed under protest.

[215]The second issue I will consider is whether the Claimant resigned because of the conduct that I have found is relevant. The answer to that question is that the Claimant did ultimately resign because his grievance was not upheld and there was no further internal remedy. I further find that part of the reason why the Claimant resigned was because of what he deemed to be the unreasonable withdrawal of his sick pay and the failures to uphold his grievance on those points. It must be said, and this is an important matter in terms of any compensation to be awarded, that I am quite satisfied that even if the Respondent had have upheld the Claimant’s grievance on the sick pay and retained the rest of their decision the Claimant would have resigned anyway at the same time. The sick pay was but one of a substantial amount of major issues for the Claimant about the manner in which he believed he had been treated as well as the culture of the Respondent organisation. Earlier in this Judgment I set out the list of demands which I considered to be non-negotiable and I am 100% sure that the Claimant’s resignation would have been made on the same day if all of those demands were not met.

[216]Did the Respondent behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent and, if so, did it have reasonable and proper cause to? The removal of sick pay was a discretionary decision made by the Respondent and I must look at it within that context. The law on discretionary contractual terms is as follows.

[217]In Clark v Nomura International plc

2000 IRLR 766

the High Court preferred a test of irrationality or perversity to one of ‘capriciousness’ or ‘without reasonable or sufficient grounds’ for determining whether the exercise by the employer of a contractual discretion breached the trust and confidence term. The Court acknowledged that a test of reasonableness would be too low a test as it implies that a court can substitute its own view for that of the employer. In applying a test of perversity or irrationality, the court or tribunal cannot substitute its own view of reasonableness and can only interfere if no reasonable employer could have come to such a conclusion.

[218]Managerial discretion contained within express contractual terms may also take the form of a power allowing the employer to decide whether a certain state of affairs pertains that may, for example, lead to entitlement (or disentitlement) to a benefit.

[219]In the leading case of Braganza v BP Shipping Ltd

2015 ICR 449

the Court observed that an employment contract is of a different character from an ordinary commercial contract and any decision-making function entrusted to the employer must be exercised in accordance with the implied obligation of trust and confidence. The Court considered that it was appropriate in this case to adopt the public law test of rationality, as set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1 KB 223, CA. This test has two limbs: the first focuses on whether the correct matters have been taken into account in reaching the decision; while the second is concerned with whether the result is so outrageous that no reasonable decision maker could have reached it.

[220]The Braganza decision was also considered by the Court of Appeal in Hills v Niksun Inc

2016 IRLR 715

, where an employee successfully challenged his employer’s exercise of discretion in the allocation of commission payments under its global commission scheme. Lord Justice Vos, giving the unanimous judgment of the Court, held that where an employee seeks to challenge the employer’s exercise of its discretion under a contract, the burden of proof does not fall on the employer. Rather, it is for the employee to demonstrate that there are grounds for thinking that the employer has exercised its discretion unreasonably. Once the employee has done that, the burden transfers to the employer to show that its decision was reasonable.

[221]The current state of the law was summarised by the Court of Appeal in IBM United Kingdom Holdings Ltd v Dalgleish

(2018) ICR 1681

, where the Court confirmed that, in deciding whether an employer’s exercise of discretionary power (whether express or implied) breaches the implied duty of trust and confidence, “a rationality approach equivalent to the Wednesbury test (including both its limbs) should be adopted, taking into account the employment context”. The Court also had to consider the relevance of employees’ “reasonable expectations” i.e., where the employer’s previous actions have led employees to believe that the employer will or will not exercise its power in a particular way. Reasonable expectations are a relevant factor to be taken into account by the decision maker and can be considered as part of the rationality test. However, they do not have overriding significance over and above other relevant factors.

[222]Pre-Braganza case law had already established that the implied term of trust and confidence embraces the exercise of discretion over discretionary payments to ensure that non-capricious, rational and non-arbitrary pay-outs are achieved. Braganza demonstrates that the implied term now applies not only to the outcomes of such decisions but also to the way in which those decisions are made. Decisions where the employer has a discretion to determine whether a certain factual scenario exists are covered by the implied term, as, it seems, are decisions on whether, in the light of a given factual scenario, the employee should be treated in a certain way (e.g., discretionary sick pay should be paid).

[223]Pay is at the very core of any employment relationship. The Respondent has a discretion in relation to company sick pay and that will be exercised on a case by case basis according to the policy. That means that the individual circumstances will be looked at and considered and leaving aside there is no evidence at all that others were treated the same as suggested (and evidence could have been led on that point) that would not in any event absolve the Respondent of considering each case on its merits.

[224]A decision was made initially to pay discretionary sick pay. There has been no evidence as to what was taken into account or who made that decision and I take from that the norm would be that company sick pay would be paid subject to any matters that might militate against that.

[225]The decision vis a vis sick pay according to the policy is to be made by the line manager but Mr Pagdin does not appear to have been involved at all and, indeed, there is no evidence that he was. We know that Ms Ruddock from HR communicated the decision without a reason on 22 December but there is no evidence as to who took the decision. As previously stated Mr McClaran simply states that “Vitality” took the decision which is of little help in looking at the motives. He provides in his statement that a failure to comply with OH obligations were the reason but that has been shown to be impossible as OH was brought up after. I have roundly rejected the Claimant’s suggestion that it was done because he had made protected disclosures and I have accepted as a fact that the reason given in Ms Ruddock email of 10 January was the real reason. i.e. that removing the benefit after one month was “reasonable given the initial cause of your absence is related to our return to office requirements” (485).

[226]That was the basis for the operation of the discretion and so it is that which needs to be scrutinised in terms of the Wednesbury principles and the case law cited above. I have found that there was nothing wrong with the Respondent’s operation of the two day a week in the office policy and that it was a reasonable management instruction. I have further found that it was perfectly reasonable to discipline staff who did not adhere to that reasonable management instruction. That process would be properly handled through the disciplinary process and the Claimant was placed within it although ultimately the disciplinary hearing itself did not take place.

[227]I am confident that had the hearing taken place the Claimant would have been found culpable and would have been in receipt of a first written warning as per the example given of another member of staff (932). There were other clearly identified matters that arose if a warning was given namely that according to bonus guidelines no bonus would be received whilst the warning was active and neither would the person under the warning be eligible for a salary review. Those are published financial consequences that follow going through due process and being subject to a warning and the Claimant himself asked the question re bonus payments in correspondence. Whilst financially onerous they are known and part of a clearly defined process.

[228]I am unable to view the Respondent’s position in relation to the Claimant’s sick pay because his illness related to the return to work requirements in the same light. It was accepted that the Claimant was ill and unable to work and the discretion to pay him full sick pay was cut simply because the sickness flowed from a decision he was already going to be disciplined for and what’s more before he was disciplined. There was no suggestion that if he was successful then his pay would be reinstated and back dated.

[229]I am satisfied that company sick pay would normally be paid for the full 3 months so long as the individual was genuinely ill and matters were supported by sick notes as the Claimant’s was. His stance re the return to work could reasonably and properly be dealt with via the disciplinary process which would have the sanctions outlined above but in my view withdrawing the discretion for the reasons Respondent did complies with the Wednesbury test. The correct matters were not taken into account in reaching the decision because the reason given was not a valid one in all the circumstances described and matters that would have suggested that discretion be exercised length of service / exemplary attendance were not considered. I do consider that the decision to withdraw company sick pay for the reason given was so outrageous that no reasonable decision maker could have reached it and the result was that the Claimant missed out on 2 months full pay which he should have been paid.

[230]I find that this failing in the exercise of the discretion was behaviour on the part of the Respondent that was likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent and that the Respondent did not have reasonable and proper cause to do so for the reasons given earlier.

[231]In addition, the failure to properly make an enquiry into the sick pay issues and to fail to analyse the decision to withdraw company sick pay in the grievance also meets the Malik test and in those circumstances I am satisfied for the relatively narrow failures identified above that the Claimant was constructively dismissed.

[232]Applying the Kaur test with my comments in bold: a) What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation? The rejection of his appeal and the end of the internal processes. b) Has he or she affirmed the contract since that date? No c) If not was that act or omission in itself a repudiatory breach of contract? I find that the failure to deal with that aspect of the grievance appropriately as described above was in itself a repudiatory breach of contract because it went to a central aspect of the Claimant’s contract - pay d) If not, was it nevertheless a part of a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence? In an event I am satisfied that the decision to withdraw sick pay and the failure to rectify it is a sufficient course of conduct to be a repudiatory breach of the implied term of trust and confidence. e) Did the employee respond to that breach? Yes - by resigning.

[233]As I have found that the Claimant was constructively dismissed I now consider whether that was unfair either automatically or ordinarily. For the reasons cited earlier in the whistleblowing part of this judgment I am entirely satisfied that the Claimant’s protected disclosures had no impact at all upon the Respondent’s conduct let alone it being the principal reason for the dismissal. The automatically unfair dismissal claim is not well-founded and is

[234]The Respondent in their Amended Grounds of resistance relied upon “some other substantial reason” although did not provide me with any information as to what that substantial reason may be. The List of Issues also does not provide me with that detail. Counsel for the Respondent stated at paragraph 39 of her closing submissions that the substantial reason relied upon was to protect the health and safety of staff during the Covid 19 pandemic. It is clear to me that the matters which have led to the dismissal i.e. the removal of discretionary sick pay and the failings in the grievance consideration in respect of that matter do not touch upon that proffered reason and I find therefore in the absence of a potentially fair reason the unfair dismissal claim is well-founded and is successful.

[235]I repeat however that I am also certain and find as a fact that even taking away the sick pay failure and the grievance errors relating thereto or even if there had been findings in relation to the sick pay in the Claimant’s favour at the grievance, the Claimant would still have resigned at the same time because his substantial list of other complaints had not been resolved. In those circumstances any compensatory award will be reduced by 100% on account of a Polkey reduction.

[236]That concludes this Judgment. The parties are encouraged to seek to agree any remedy that arises from my Judgment and shall write to the Tribunal within 14 days of receipt of this Judgment to indicate whether or not a Remedy date is required and if so provide dates to avoid. That correspondence should be marked for the attention of Employment Judge Self.

[237]I conclude by thanking the parties for the courteous and helpful manner they conducted these proceedings. APPROVED BY