Mr Andrew BallClaimantMr N Roberts (Counsel)Respondent
Before
Employment Judge P Cadney
Members
Mrs J KielyDate 7 June 2019
JUDGMENT
The unanimous decision of the Tribunal is:- The claimant’s claims of i) Constructive Unfair Dismissal; ii) Disability discrimination contrary to sections 13, 15, 20, 26 and 27 of the Equality Act 2010 are dismissed.
REASONS
[1]This case comes before the tribunal for final hearing of the claimant’s claims for constructive unfair dismissal, and disability discrimination. The claimant is acting in person and for the reasons set out below it is simply not possible nor reasonable to expect the claimant to identify the precise legal basis of all of his claims[2]To set the matter in context the case came before the Tribunal on 8 July 2016 for consideration of a number of preliminary issues. At that point the issue of disability fell away as the Respondent accepted that the Claimant was a disabled person within the meaning of the Equality Act 2010.[3]By that stage the Claimant had produced a Scott Schedule setting out what he said were claims of direct disability discrimination, and also the grounds for his claim of constructive dismissal. EJ Davies summarised the Claimant’s case in the following way:- “The heart of the Claimant’s case was that from about 2011 and particularly from the date of a National Collective Agreement the Claimant was being pressurised by managers to undertake planned overtime. The Claimant said it was the failure by managers to accept his clear indication that he would or could not do planned overtime that caused stress and frustration on his part. The Claimant explained the response made by managers was that the National Agreement allowed them to do that, but that when he asked to see the National Agreement he was never provided with the relevant sections.” At paragraph 4 he continues “this practice criterion or provision that he should do planned overtime was central to the allegations he makes in the Scott Schedule of the failure to make reasonable adaptations to accommodate his disability.” Having heard all the evidence it is clear that EJ Davies correctly identified the central factual issues in the case in that summary.[4]The difficulty in which the Respondent found itself was summarised in paragraph 8:- “The Claimant is a litigant in person and whilst there was reference by Respondents Counsel to whether the claims for disability discrimination were wide enough to cover a number of causes of action the Claimant was not equipped to specifically draw distinctions between for example acts of harassment direct discrimination failure to make reasonable adjustments or discrimination arising from disability. It was clear that the factual matters complained of by the Claimant could fall within a number of these legal definitions of causes of action or discrimination. The labelling of them is not unimportant but is clear that the main thrust of the Claimant’s case is that the failure to make reasonable adjustments regarding planned overtime the consequent harassment he suffered as a result of his refusal to do it, his bad treatment at the hands of managers and others being directly related to his reluctance to do planned overtime due to disability and can be characterised as direct discrimination and or discrimination arising from disability. The Respondents understood that it would be very difficult to confine the Claimant to a particular legal cause of action but the important matter is that the Respondents were able to deal by way of witness evidence with the labelling of these facts put forward by the Claimant and no doubt will refer to these causes of action in submissions after the evidence has been given at the final hearing.” This was the best that could be done at this stage in trying to identify what is complained of by the Claimant in respect of disability discrimination. Conduct of the Litigation/Hearing[5]The Tribunal would wish to compliment and thank both parties for the way that they have conducted the hearing. For the reasons which will be set out below the Claimant’s disability meant that to present his claim and be the focus of the Tribunals attention, either in giving evidence, or in cross examining the Respondents witnesses for the best part of five days was acutely difficult for him. However he did so with conspicuous diligence and courtesy. Without this it would not have been possible to have concluded the hearing in the time available.[6]Similarly for the reasons set out above the Respondent found itself in the unusual position of having a reasonable, if broad, understanding of the factual allegations made against it, although for the reasons set out below those factual allegations in some respects altered as the hearing went on. However, they were faced with a case in which the Scott Schedule had identified the claims as direct discrimination but, as had been identified at the CMD, they could in fact fall within a number of other forms of disability discrimination and, as has been set out in the Respondents Skeleton Argument, it followed that the Respondent was litigating with one hand tied behind its back insofar as it was trying to anticipate all possible legal arguments that could be made against it and to produce defences to those arguments without actually knowing the legal claims that were being made. The Respondent rather than protesting this accepted it with extremely good grace and proceeded to deal with the factual allegations, and in his written submissions Mr Roberts dealt with all the possible permutations that those factual allegations could legally give rise to. Just as with the Claimant, unless the Respondent had taken this attitude to the litigation it would not have been possible to have concluded the evidence within five days and our thanks are therefore equally due to the Respondent for the extremely helpful way it conducted itself before the Tribunal.[7]Finally we should thank the Respondents witnesses all of whom went out of their way not only to give, as we hold, reliable and honest evidence to the Tribunal, but to assist the Claimant himself in what was a very difficult situation for him.[8]Occasionally it is the unfortunate lot of the Tribunal to criticise parties or witnesses who appear before it for their conduct or behaviour. It is therefore with pleasure that the Tribunal records its thanks to all those involved in this hearing for the way in which they conducted themselves. Disability[9]As is set out above, it is accepted that the Claimant was disabled and is therefore not necessary to make detailed findings in respect of the medical evidence. We have however recorded some of the personal medical history of the clamant which is set out in an appendix which will be sent only to the parties and which will not be included in the publically accessible Judgment. National Collective Agreement /Planned Overtime[10]As was set out in the case management discussion there are two central factual issues which form the main background of this case. They are linked and are the introduction of a National Agreement, and the change in the way driver’s routes were planned.[11]The background to that is that the Claimant started work for Asda on 26 November 2007 as an LGV1 driver at their distribution centre in Chepstow. The Claimant in his witness statement contends that things went well for him until 2011 when he says there was a change in attitude which coincided with the negotiations for the introduction of the National Agreement. The National Agreement was reached between the Respondent and the GMB in 2012 and it is more fully described as the 2012 National Pay and Conditions Agreement. There was very substantial briefing on it and following its implementation new terms and conditions were sent out. For the purposes of this hearing the relevant section is set out in the Section “WTD and Breaks” and provides “In addition to your basics hours you may from time to time be required to work additional hours where this is necessary to meet operational requirements. Unreasonable refusal to work additional hours may result in disciplinary action.”[12]Mr Ball appears to have two fundamental objections to the National Agreement. The first is that he does not appear to believe that it was in fact agreed by the workforce. This stems from the fact that the initial pay offer was rejected by the staff, but apparently following re-negotiation a ballot in September 2011 resulted in 88% of those who voted approving the new National Agreement. Mr Ball does not accept this reflected the genuine views of the workforce. Mr Ball makes two factual allegations. The first is that the Asda management persuaded the unions to allow the management to count the votes, and secondly that he contends that the result of the vote was published before the actual deadline for voting had expired. Although he was anxious not to use the word “rigged” he appeared to be squarely alleging that in fact the purported acceptance by the workforce of the new arrangement did not reflect the reality.[13]His second objection related to new overtime arrangements. He appeared to believe and suggested he was told by management that the new overtime arrangements were ones he was obliged to fulfil because they were contained in the National Agreement. This misunderstanding lay apparently at the heart of why the Claimant was so insistent on being shown a copy of the National Agreement and why the Respondent did not understand why it was of such significance given the specific terms of his contract.[14]The specific dispute about overtime arises in the following way. Prior to the National Agreement and the implementation of consistent nationwide practices each depot had its own system for allocating routes. In broad terms the Claimant was extremely happy that a new nationwide system was adopted because, as was his own evidence, prior to that the policy in Chepstow was to allow drivers to choose which routes most suited them which meant that those prepared to put themselves forward got the routes that they wanted leaving the shyer and less confrontational, into which group the Claimant fell as the shyest and least confrontational member of staff, to pick up the rest. The Claimant did not feel this was a fair way of distributing work. The new system of distributing work which coincided in broad terms with the National Agreement was to introduce a national system which was based on what was known as Paragon Software. In simple terms the number of deliveries and locations of those deliveries that any depot needed to make on a given day were entered into the Paragon system. It would then match those deliveries with the drivers and the shifts which were available. By this means, as a general proposition, drivers would be allowed to work their shifts without the necessity of necessarily doing overtime. However, there were occasions on which the number of deliveries and distance travelled would exceed the hours available and the various drivers’ shifts. On those occasions it would be necessary for Paragon to plan for some drivers to work a longer shift for which they would receive overtime payments. In recognition that there would be some drivers who would be happy to undertake such planned overtime and others who would not, those who did not want to be rostered for such planned overtime were identified by means of an ‘N’ entered against their name on the system. The result of this was that they would not, without their consent, be allocated runs which it was anticipated would exceed their contracted hours of any particular shift.[15]The Respondents evidence, which we accept, was that prior to adopting this system driver trainers at each depot had carried out test runs so that there was information as to the likely length of that journey. In addition the Paragon system was constantly being updated with the actual information as to the time drivers had taken to complete any particular journeys and accordingly, it was a reasonably accurate assessment of the likely time any journey would take. Thus the term ‘planned overtime’ (although not having any formal status) became a shorthand for the situation in which runs had been allocated to drivers which it was known in advance could not be completed within that drivers usual shift and would therefore automatically take longer.[16]In addition to this there was “unplanned overtime”. Any journey would be subject to the vagaries of the weather, accidents, of road works and the like which could extend the time for any given journey. It may as a consequence of these factors have been that a journey would take longer than planned. If it did, and if this meant the shift over-running, the driver would be paid overtime. This was known (again in shorthand) as ‘unplanned overtime’.[17]One of the Claimant’s fundamental complaints is that he was in fact given planned overtime when he was one of those who had requested not to and had ‘n’ against his name. In fact as emerged in the hearing, the Claimant was using the term ‘planned overtime’ in an entirely different sense from that in which it was being understood by the Respondent and its witnesses. The Claimant was using the term ‘planned overtime’ to refer to a situation in which the Claimant having seen his planned journeys did not himself believe that they could be accomplished in the time available during his shift. One of the things which has become abundantly plain during the course of the hearing is that when the Respondents witnesses were talking of and considering whether the Claimant was justified in his complaint that he was being rostered to do planned overtime they did not understand that this was a sense in which he was using the word, and equally the Claimant did not understand that they were judging the question of planned overtime by reference to the journey times on the Paragon System.[18]Before dealing with the individual allegations we should record our overall conclusions. The respondent characterises the claimant’s standard response to any incident as that of default cynicism. In effect he believes or assumes that others are acting in bad faith and with malign intent unless the contrary is proved. In our judgment that is a fair assessment. Indeed during the course of the hearing the claimant maintained this position in the teeth of evidence which demonstrated that he must be incorrect (a prime example of which is his assertion that an individual at Chepstow must have manually manipulated the Paragon software after it became abundantly clear that the system could not itself be operated to his disadvantage as he alleged). This is not necessarily a criticism of the claimant and may indeed be a function of his disability. However it has resulted in a number of extravagant allegations for which there is no objective evidence (the alleged manipulation of the Pargaon software again being a prime example). Moreover viewing the evidence and history of the events as a whole it is hard to avoid the conclusion that the respondent was very significantly more sympathetic to the claimant and patient with him than might reasonably have been expected. Put simply we accept their overall contention that they bent over backwards to help the claimant. Indeed it is one of the sadnesses of this case that the claimant should have perceived the respondent to be acting unreasonably towards him when there is no objective evidence supporting any such conclusion, with the result that he resigned from a job he enjoyed in the (in our judgment) of a wholly sympathetic employer.[19]Our conclusions as to the individual incidents should be read in the light of those overall conclusions.[20]For the avoidance of doubt we have approached this case, given the difficulties referred to above, by dealing with the factual allegations first and only then going on to consider which, if any of the legal categories of disability discrimination the particular allegations might fall. In fact there is very little factual dispute, the major differences being those of interpretation. For the reasons set out above and in more detail below, we have been impressed by the honesty and reliability of the respondents witnesses evidence and have not in fact found that there is any conduct which could fall within any form of disability discrimination. In the light of our findings of fact we have not found it necessary to analyse each allegation as against every possible permutation of the various sections of the Equality Act 2010. Where we have done so we have set out our reasoning.[21]Equally the wealth of background material to the specific allegations set out in the Scott Schedule is vast. So as to make the judgment comprehensible and not wholly unwieldy, (and having set out our conclusions as to the central dispute between the parties above) we have simply set out our findings and conclusions in respect of the specific complaints made in the Scott Schedule.[22]This is said to have occurred between September 2011 and June 2014 and is the failure to produce a copy of or explain the nature and effect of the National Agreement either as requested or as promised or agreed. This is further characterised as a failure to make reasonable adaptations to accommodate the Claimant’s disability. The background to this is as set out above and for the reasons set out above cannot in fact be viewed in isolation as it was the Claimant’s view that as he understood it, it was because of the contents of the National Agreement that the Respondent was able to force him to do planned overtime as he perceived it.[23]The Respondent submits that there is a simple answer to this which is that the claim of failure to make reasonable adjustments in respect of this must fail as there is no evidence that the Claimant’s disability placed him at any substantial disadvantage. What placed him at a disadvantage is that he had misunderstood the function and importance of the National Agreement and had formed a belief that it contained specific sections about overtime to which he had not been privy but which was in fact untrue.[24]Secondly, even if there was an adjustment required it was to explain the Claimant’s contract of employment to him, which on the evidence the Respondent clearly did. When, in August 2012, the Claimant asked for his contract of employment it was sent to him and together with a handbook and it was explained that those two documents comprised his employment contract. In November 2012 Gaynor Talbot talked through the provisions in relation to overtime. In July 2013 when the Claimant asked for a copy of his employment contract as it had not reached him (which was not in fact correct) he was sent a further copy of the contract and the explanatory letter. When the Claimant asked for his employment contract on a third occasion in June 2014 he was provided with it and the relevant sections were highlighted in green and explained again. When the Claimant then sought confirmation that he was not bound by anything else, it was confirmed that he was not bound by anything else. In other words the Respondent contends that on every occasion the Claimant asked for either his contract or an explanation as to his contract it was given to him. The fact that the Claimant misunderstood and did not accept the explanations that were given to him, which were in fact patently obviously both true and correct, self evidently demonstrates there had not been any failure to make reasonable adjustments.[25]The second allegation is that the Claimant was forced to undertake planned overtime, again between July 2011 and June 2014. The link with the Claimant’s disability is said to be that due to his medical condition this caused undue anxiety and stress over confrontation and that is amplified as saying “planned overtime caused C significant stress anxiety and worry that would not have affected the person not encumbered with C’s medical condition”.[26]The Respondent points out that it is not the Claimant’s case that he was unable to do overtime, whether planned or unplanned and the Claimant has never complained that if he was unavoidably delayed and a shift took longer than was necessary this caused him any particular difficulty. Equally for the reasons set out above the Respondent asserts that it is simply not true that the Claimant was forced to undertake planned overtime, at least not in the sense that the Respondent uses that term. The Respondent makes a number of factual points, the most significant of which is that the Paragon Software automatically allocated runs to drivers according to the information as to those journey times loading times and break times through a pre-determined algorithm. Thus it was factually not possible for this to have occurred, and no evidence that it had in fact occurred in any event.[27]In fact during the course of the evidence the Claimant accepted that the Paragon Software would not of itself have allocated to him journeys which were planned to take longer than his shift. His allegation as it emerged during the course of the hearing was that he believed that the Paragon Software was being overridden by a person or persons within Chepstow so that he would be uniquely targeted for planned overtime which the software in and of itself would not have given him.[28]This is a paradigm example of a pattern which has repeated itself throughout the hearing which is that the Claimant has an extremely firm and fixed view that he is right that journeys were allocated to him which could not have been completed in the anticipated time. If he is right about that, and if the Paragon Software in and of itself would not have done that, it must follow that the system was being manipulated by an individual or individuals which is where this allegation comes from. There is however no evidence whatsoever that any such thing ever occurred. It follows that in fact the PCP alleged is the practice of manipulating the system so as to give him longer runs requiring him to perform “planned” overtime.[29]The major difficulty with this is that as the Claimant accepted himself, as a matter of fact there is no evidence of the Claimant ever performing any substantial overtime and that the vast majority of his runs were completed in his contractual hours. As he accepted he did very little overtime.[30]In our judgment there is no evidence that the Claimant was being planned overtime either in the sense that the Respondent uses that term or in the sense that the Claimant uses that term. Indeed what appears to have happened is that the Claimant became stressed as a consequence of his belief that he was being planned overtime which belief is not objectively borne out by the evidence.[31]Further as the Respondent correctly in our judgment submits, even if there were any obligation to make adjustments for the Claimant’s misunderstanding of the situation it bent over backwards and invested huge amounts of time and effort in explaining and supporting the Claimant. In the Claimant’s first absence review in 2012 Richard Davies explained how overtime worked. When the Claimant was referred to occupational health in November 2012 its recommendation was that overtime be avoided wherever reasonably possible and Gaynor Talbot on 15 November 2012 explained how the Paragon system worked. Similar Occupational Health advice was received when the Claimant was absent in 2013.[32]In August 2013 the Claimant raised a formal grievance which was heard by Mr Cunliffe, who made a number of recommendations including reducing the Claimant’s shift lengths, (which had in fact been suggested by the Claimant’s union rep and agreed by the Claimant) and for department managers to notify the Claimant of second runs if he was delayed on the first run. The Claimant lodged an appeal which was heard by Mr Gilmore in November 2013. In the course of that grievance appeal the Claimant effectively requested a written commitment that he would not do overtime. For the reasons given above the respondent, again in our judgment correctly submits that this is impossible to meet or agree to and is by definition not a reasonable adjustment. Allegation 3 (and 7)[33]The third allegation is of harassment/bullying from September 2013 until the date of his resignation. The specific incidents in which the Claimant alleges that he was sworn at will be dealt with later.[34]The broad allegation relates to what the Claimant refers to as “confrontations with managers’. The Claimant is using this word in a very specific sense. As set out above there were occasions when the first run of a shift would overrun and the Claimant would then return to the depot later than anticipated and perhaps with insufficient time to complete the planned second run. This would result in the Claimant needing to speak to managers about whether an alteration to his runs was needed. The Claimant characterises this as ‘confrontation’ because he did not wish to have these conversations. However, as he accepted in his evidence the managers did their best to help in relation to overtime, did attempt to be reasonable and avoided overtime wherever possible. The Respondent submits that with the best will in the world it was simply not possible to do what the Claimant wanted which was to avoid him having conversations with his managers. These were the inevitable consequence of a fluid situation in which drivers could sometimes take longer than planned to do a particular run which would result in re-organisations having to occur. It was inevitable that the managers would have to speak to drivers on these occasions and it is not a reasonable adjustment to say that a manager could not speak to the Claimant whilst he was at the depot. In our judgment this must be correct.[35]In addition the Respondents submit that the conversations on 22 February 2015 characterised the way the Claimant approached this. The Claimant had a shift that was rostered as 9 hours or less and therefore the Claimant had not been planned overtime. However the Claimant took the view that the time allocation was wrong and it was not achievable without going into overtime. During the course of the day the Claimant conducted effectively an open and running confrontational conversation with Mr Davies his manager, although in fact he did complete the shift the runs within the time allocated. The Respondent submits not without justification, that it was apparent during the course of at least this incident it was the Claimant who was choosing to be confrontational. The managers were extremely emollient and in fact did nothing about a situation in which they could easily have instituted disciplinary proceedings.[36]In terms of the adjustment the Respondent contends that if the adjustment is that the Respondents managers should not speak to the Claimant in any circumstances about his runs or adjustments to his runs then this is not an adjustment which could possibly be accommodated. The running of a depot such as that at Chepstow which there are constantly deliveries being made, requires constant assessment and re-assessment of a fluid situation and involves discussion with the drivers. The runs have to be actively managed and the needs of the business have to be balanced against the needs of the drivers. Secondly, and in any event, if in reality the Paragon system whether manipulated or not, had allocated runs which could not be achieved in the Claimant’s shift it followed automatically that at the very least at the end of the first run, if there was insufficient time left, the Claimant would need to discuss whether he was required to do the second run with his managers.[37]The fourth allegation is the failure to take into account the Claimant’s disability. The respondent asserts that this is an allegation that is so broad that it is in effect impossible to answer. However, it points to the fact amongst other things that when the Claimant asked to reduce his shifts from 4 to 3 a week the Respondent agreed, and when the Claimant asked to reduce his shift lengths from 3 x 11.25 hour shifts to 4 x 9 hour shifts the Respondent agreed. When he asked for a phased return it was granted exactly as requested and that as a matter of course he was invited to bring a union rep or colleague with him to most of his meetings regardless of the purpose.[38]In addition the Claimant complains about a meeting in one meeting room as the room was small. As the Respondent points out there is no evidence the Claimant’s condition means that a meeting taking place in a small room is of any disadvantage. However a it emerged during the hearing the claimant’s complaint is that to hold a meeting in a small room was perceived by him to be confrontational. In our judgment this is essentially a variant of the complaint above and would fail for the same reasons.[39]The next matter complained of in allegation four is an allegation that the Respondent discussed the Claimant’s medical condition in public on 20 July 2013. This in fact refers to an incident when Gaynor Talbot told the Claimant in front of others that Stuart Byrne wanted the Claimant to attend an Occupational Health appointment. If anything this would appear to be an allegation of harassment. In evidence the claimant accepted that this was not done deliberately by Gaynor Talbot with purpose of embarrassing him. Whilst we accept that it is good practice not to refer to medical conditions or appointments there is nothing in the circumstances surrounding this incident that would in our judgment allow us to conclude that a single comment in these circumstances could objectively have the proscribed effect.[40]However, the tribunal is alive to the possibility that it would be possible to draw alternative conclusions as to this incident. In our judgment it is in fact the only factual allegation in respect of which we may have concluded that the allegation of discrimination was made out. Accordingly we have gone on to consider the position had we conclude that this was the only well founded allegation. In those circumstances it would be a sole allegation which was significantly out of time and it is extremely unlikely that we would, had we found the incident to be discriminatory, to have extended time in respect of a sole finding of discrimination.[41]Allegation five is of a failure to respond to the Claimant’s correspondence in a timely manner or at all. The Claimant in evidence highlighted two principal occasions where there was an issue with communication. First was an invitation to a meeting to discuss sick pay in 2015 he says he received on the day of the meeting. This resulted because the Respondent was trialling a process of centralised HR services. The second was the Claimant’s invitation to a meeting to discuss his 2015 Occupational Health report which was dated 14 July but arrived on 22 July. The claimant contends that these were not errors but deliberate acts designed to cause him stress. In our judgement there is no evidence to support this assertion. In the circumstances and given that there is no evidence to support this allegation, and that these are the type of simple administrative errors which occur from time to time in any organisation, particularly one the size of the respondent we do not find that these were deliberate acts. It follows there is no causal link between the claimant’s disability and either event.[42]The second component of allegation five (and also allegation eight) relates to the January 2015 pay dispute. On Thursday 22 January 2015 the Claimant attended work following a period of holiday. He had turned 45 years old on 9 January and under DVLA rules was therefore required to renew his drivers licence. He could not legally drive unless he had a licence or the DVLA had officially recognised his licence application, which is known as a Section 88 letter. The Claimant had applied to renew his licence late and originally suggested he had forgotten to renew it, although in evidence he stated that he had waited until the last minute because he was worried that he might fail the medical assessment.[43]By 22 January he neither had the licence nor his Section 88 letter and on his attendance in work without either of these things Richard Davies telephoned the DVLA. At that stage DVLA had no record of the application and therefore the Claimant was incapable of performing his role as he could not legally drive. He was sent home and applied to use the two holiday days he believed he had remaining. The Claimant telephoned the DVLA on 23 January which still had no record of his application so he could not work. The 24 and 25 January are the weekend and therefore the Claimant missed four days work.[44]On 29 January 2015 he re-attended work still without a licence or a Section 88 letter. On this occasion Mr Davies telephoned the DVLA again. By this time the application had been received but was still pending assessment by the medical department and the Claimant was still therefore not eligible to drive. In the following days the Claimant became eligible to work and returned to work on 31 January. The Claimant’s complaint is that Mr Davies could and should have told him about the medical issue earlier than on 29 January. However he accepted in evidence that Mr Davies could not possibly have known about that until 29 January.[45]The Claimant then lodged a grievance on 9 February alleging entitlement to two holiday days and to be paid for 29 and 30 January. He didn’t seek any pay for 24 or 25 January. In evidence the Claimant accepted that this grievance was misconceived. In his February pay slip he was paid for all of his remaining holidays and was in fact ineligible to drive on 29 and 30 January. Events were overtaken by the Claimant’s subsequent absence and issue relating to sick pay which was resolved by Mr Keedwell. For reasons that are not known that earlier grievance was not specifically addressed. However there is no evidence that that was a deliberate failure and given that, as the claimant now accepts, it was misconceived it was bound to be rejected in any event. The failure to complete did not therefore place the claimant at any disadvantage or result in him being tread unfavourably.[46]Allegation 6 relates to the handling of the 2013 grievance when he complains of a failure to complete the grievance process, lack of confirmation of the outcome of the grievance and the grievance not being complied with. Put simply the Respondent does not accept that any of that is factually true. The grievance was conducted by Mr Cunliffe and the appeal heard by Mr Gilmore and the process was only halted when the Claimant withdrew his appeal. There is in fact no evidence that there was any matter not complied with. In our judgment this analysis is correct. Allegation 7 (and 3 insofar as it includes allegations of swearing at the claimant)[47]In relation to disability or related harassment there are allegations of four incidents, one in which the Claimant was allegedly called a ‘prick’ and mocked by Neil Zimmerman on 15 June 2013, called a ‘twat’ by Ian Durbin on 8 March 2013, told to ‘fuck off’ by Gaynor Talbot on 8 June 2013 and again told to ‘fuck off’ by Caroline Davies on 13 June 2013. He additionally alleged in the hearing that Richard Davies had pronounced his name Andrew ‘Bull’ as opposed to Andrew ‘Ball’. These incidents are denied by those who are alleged to have made them. The Respondents point to the curiosity of these four incidents all allegedly taking place over a short period, three of them in fourteen days in June 2013 and one three months earlier. Whilst the Respondent does not allege that the Claimant is lying, it does submit that the Claimant has a habit of overreacting and jumping to incorrect and malign conclusions.[48]These are the allegations the tribunal has found hardest to resolve factually. Whilst we accept that the claimant has on occasion drawn conclusions about incidents which are not objectively supportable there is no incident about which he has lied. It is equally fair to say, however that those witnesses the respondent was able to call (Ms Bebbington nee Davies and Mr Richard Davies) denied having made any such remarks and are equally witnesses whom the tribunal found to be honest and reliable. In addition, these allegations contrast so obviously with all the other interaction between the claimant and respondent they appear essentially very implausible. In the circumstances we have come to the conclusion that we cannot find on the balance of probabilities that the remarks were made as alleged by the claimant. Constructive Dismissal[49]For the reasons set out above we have not found any of the claimant’s allegations of disability discrimination factually well founded. They equally cannot therefore in our judgment form the basis individually or cumulatively of any breach of the implied term of mutual trust and confidence, which is the term relied upon as the fundamental breach of contract.[50]Following the events described above the claimant resigned on 14th September 2015. The other matters alleged to amount to a breach of the implied term of mutual trust and confidence, include that allegation that disciplinary proceedings were commenced and continued against the Claimant without due cause. This is alleged to have occurred in 2011. This is a extremely old and bizarre allegation. On 8 September 2011 Kevin Swift experienced a tyre blow-out whilst driving on the M5. He pulled onto the hard shoulder and was told by Mr Simon Ward-Tamley to drive the vehicle two miles up the hard shoulder to the nearest depot in Portbury. The tyre was replaced and the Claimant was asked to pick up the repaired unit from Portbury and return it to Chepstow. On doing so the Claimant inspected the vehicle but did not notice the mud guard was missing and that a pipe was dragging on the tyre. He drove the unit back to Chepstow and did not report any defect. This is a very serious allegation as the Claimant accepts in evidence. It was investigated with Mr Ward-Tamley. The Claimant was invited to a disciplinary hearing in which Mr Davies found that the Claimant had committed misconduct the sanction of which was a verbal warning which stayed on the Claimant’s record for six months.[51]The claimant’s essential compliant is that he was disciplined whereas Mr Swift was not. However we accept that the situations were not comparable and that the claimant’s actions certainly merited some disciplinary sanction. As the Respondent submits, and which is in truth unassailable, the Respondents conduct in relation to this incident is unimpeachable and cannot possibly either individually or cumulatively amount to breach of implied duty of mutual trust and confidence.[52]The claimant also complains of events surrounding his sickness absence. He was signed off sick on 5 March 2015 for reasons of high blood pressure. It is difficult fully to follow the Claimant’s case as to the Occupational Health referral. At points he appeared to suggest that he believed that the Occupational Health nurses report had in fact been drafted by the Respondent not by her, in respect of which there is no evidence. He also criticises her for appearing to deal brusquely with him. Whilst this may true in our judgment it cannot form part of any complaint of a breach of the implied term by the respondent.[53]In addition he complains of a delay in the disclosure of the report. There was clearly a delay between it being requested by the Claimant on 10 July and it being provided on 22 July. Once again the claimant’s case is that this is evidence a deliberate conspiracy to withhold it from him. In our judgment this is an allegation wholly without substance. Put simply the report should have been sent earlier but for some reason was not, and whether claimant chased it he was provided with a copy. This in reality and objectively an entirely trivial matter about which complaint cannot reasonably be made.[54]The Claimant finally contends that the meeting of 5 August was aggressive. He criticises Ms Price for raising the issue of the tone of his email correspondence which he believed was inappropriate as that was not the subject matter of the meeting. This criticism is shared by his union representative. However his perception of the meeting as aggressive is not shared by his union representative and is denied by the respondent. In evidence the claimant accepted that his union representative had a totally different perception to his. It follows that of those who were present the claimant’s perception is almost wholly at odds with the others, including his own representative. In the circumstances in our view there is no objective evidence to support the claimant’s perception of this meeting[55]As the Respondent points out, despite the Claimant’s strength of feeling, looked at objectively it is almost impossible to identify anything the Respondent has in fact done wrong, let alone something which could amount to a breach of the implied term of mutual trust and confidence.[56]As a consequence we are unable to identify any conduct which individually or cumulatively could amount to a breach of the implied term of mutual trust and confidence.[57]Accordingly all of the Claimant’s claims are dismissed. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the judgment sent to the parties on 30 January 2017, is corrected as set out in bold type at paragraphs 9. Employment Judge Cadney Date: 7 June 2019 ............7 June 2019.......................................... ...................................................................................... Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. 10.15 Certificate of Correction – rule 69 March 2017