Mr A Taylor v Medicom Healthcare Ltd: 1601257/2022 and 3300012/2023
EMPLOYMENT TRIBUNALS
Case No 1601257/2022, 3300012/2023
Between
Mr A TaylorClaimantMedicom Healthcare LtdRespondent
Before
Employment Judge S Povey MsDate 17 June 2024
REASONS
[1]This is a claim by Alun Taylor (‘the Claimant’) against his former employer, Medicom Healthcare Limited (‘the Respondent’). The Claimant was employed by the Respondent from October 2015 until his resignation, which took effect on 19 October 2022. He began ACAS Early Conciliation on 30 August 2022 which ended on 11 October 2022. On 14 October 2022, the Claimant presented his claim to the Employment Tribunal.[2]The Claimant brought complaints of constructive unfair dismissal, direct disability discrimination, discrimination arising from disability, breach of the duty to make reasonable adjustments and breach of contract. The Respondent resisted the complaints in their entirety, although it did concede that the Claimant was disabled by reason of attention deficit hyperactivity disorder (‘ADHD’).[3]There were a number of case management hearings, which culminated in the parties agreeing a List of Issues (at Appendix 1, and taken from the order of Employment Judge Lloyd-Lawrie of 20 December 2023). The final hearing[4]The final hearing was conducted over four days at the Newport Hearing Centre. The Tribunal reserved its decision and undertook deliberations on 8 April 2024 and 2 May 2024.[5]On the morning of the first day of the final hearing (2 April 2024), the Claimant applied for one of his witnesses, Gareth Evans, to give evidence remotely via video link, as he had work commitments. The application was opposed by the Respondent. An earlier application had been refused by the Tribunal on 28 February 2024 (coincidentally by Employment Judge Povey). In the Tribunal’s view, there was no material change to the renewed application and we applied the same reasoning in refusing it, namely that the parties had been on notice since October 2023 of the dates of the final hearing and that it would be conducted in person. It was a matter for witnesses to make themselves available to attend and it remained open to the Claimant to apply for a witness order to compel attendance, if he so wished.[6]We also dealt with a number of preliminary issues regarding redactions to the hearing bundle. With the parties assistance, we were able to begin the hearing, as timetabled, at 2pm.[7]During the hearing, we heard evidence from the Claimant and from Thomas Harrington (a former colleague of the Claimant’s). For the Respondent, we heard from Olivia Beer (the Respondent’s Head of Human Resources) and Donald MacKillop (the Respondent’s Head of UK & India).[8]Each witness we heard from confirmed and adopted their respective witness statement. We were provided with a paginated, indexed bundle of documents (‘the Bundle’). As Mr Thomas did not attend the hearing, we afforded his witness statement limited weight in respect of those matters which were in dispute.[9]The Claimant has ADHD. Ms Beer is neurodivergent (per Paragraph 36 of her statement). We were mindful of those conditions when managing the hearing and in assessing their respective evidence.[10]We received oral submissions from Mr Turpin for the Respondent and from the Ms Johns for the Claimant. We took all the evidence and the submissions into account in reaching our decisions. The Tribunal were grateful to Ms Johns and Mr Turpin for the assistance they provided and the work they had undoubtedly undertaken both before and during the hearing. We were also grateful to all witnesses, including the Claimant, who attended and answered the questions asked of them to the best of their recollections.[11]We only made findings required to determine the complaints brought by the Claimant. A number of other matters were raised by both parties in the course of their oral and written evidence. We have not engaged with those, save where they were relevant to the determination of the issues. We explain our reasoning in accordance with the List of Issues, save that we deal with the time issues last. The applicable law Constructive unfair dismissal
The applicable law
[12]An employee is dismissed where he “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” (per section 95(1)(c) of the Employment Rights Act 1996).[13]The phrase "constructive dismissal" is not referred to in the Employment Rights Act 1996, but is "a colloquial label for a repudiatory breach of contract by the employer which is accepted by the employee, bringing the contract to an end" (per Elsevier Ltd v Munro [2014] EWHC 2648 (QB)).[14]The fact that the Claimant disagreed with some or all of what the Respondent did or did not do is not enough to establish a breach of contract, still less a fundamental breach. What is required is evidence that the Respondent has committed a repudiatory breach of contract, classically described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, as follows If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.[15]Implied into every employment contract is the term of mutual trust and confidence between employer and employee. Due to the nature of the trust and confidence term, every breach of it goes to the root of the contract and is therefore repudiatory (per Morrow v Safeway Stores [2002] IRLR 9).[16]Whether or not the Respondent acted in a manner that fundamentally breached the Claimant’s contract of employment (such that he was entitled to resign and claim to have been dismissed) is to be judged objectively, having regard to the evidence. The fact that the Claimant believes his contract was breached does not mean that it was, no matter how strongly that view is held. Similarly, the fact that the Respondent did not intend to breach the contract of employment is irrelevant.[17]The Claimant must resign because of the breach and must not delay too long, as he will be deemed to have affirmed or waived the breach (that is, signalled his acceptance in law that the contract is continuing) and lose the right to claim constructive dismissal. Discrimination: legal provisions[18]Section 39(2) of the Equality Act 2010 (‘EqA 2010’) states: An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.[19]Section 6 and Schedule 1 of the EqA 2010 define disability, which is one of the protected characteristics under the EqA 2010.[20]Direct discrimination is defined by section 13(1) of the Equality Act 2010 (‘EqA 2010’), and states as follows: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[21]A claimant claiming direct discrimination must show that they have been treated less favourably than a real or hypothetical comparator. The less favourable treatment must be because of a protected characteristic. This requires the Tribunal to consider the reason why the claimant was treated less favourably.[22]The relevant circumstances that the claimant and comparator must share are those which the employer took into account in deciding to treat the claimant as it did, with the exception of the element of disability (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285).[23]Discrimination arising from disability is defined by section 15 of the EqA 2010 as follows:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[24]There are two distinct steps to the test to be applied in determining whether discrimination arising from disability has occurred (per Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14): 24.1. Did the claimant's disability cause, have the consequence of, or result in, "something"? 24.2. Did the employer treat the claimant unfavourably because of that "something"?[25]In Pnaiser v NHS England [2016] IRLR 170, the Employment Appeals Tribunal summarised the proper approach to claims for discrimination arising from disability as follows: 25.1. The Tribunal must identify whether the claimant was treated unfavourably and by whom. 25.2. It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator. The motive of the alleged discriminator in acting as they did is irrelevant. 25.3. The Tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 25.4. The knowledge required is of the disability; not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability.[26]Section 20 sets out the duties to make reasonable adjustments in respect of disabled persons. So far as relevant, section 20 states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following … requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …[27]Schedule 8 to the EqA 2010 provides more details as to the duty to make reasonable adjustments. Under paragraph 20 of Schedule 8, an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, that the individual concerned had a disability and was likely to be placed at a substantial disadvantage by the employer’s provision, criterion or practice (‘PCP’), compared with persons who are not disabled.[28]In addition, section 212 of the EqA 2010 defines “substantial” as “more than minor or trivial.”[29]What constitutes a PCP should be construed broadly, It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions (per Lamb v The Business Academy Bexley UKEAT/0226/15). However, it is not appropriate to interpret the phrase "provision, criterion or practice" so as to encompass all one-off decisions made by employers during the course of dealings with particular employees (per Ishola v Transport for London [2020] EWCA Civ 112).[30]If a person fails to comply with the duty to make reasonable adjustments, that person discriminates against the disabled person (per section 21 of the EqA 2010). Discrimination: standard & burden of proof and time limits[31]The standard of proof is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 of the EqA 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC and Igen Ltd (formerly Leeds Careers Guidance) v Wong 2005 ICR 931, CA): 31.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 31.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic.[32]Section 123 of the EqA 2010 requires that proceedings may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. By reason of section 123(3), conduct done over a period of time is treated as being done at the end of the period, for the purpose of calculating the three-month time limit for bringing proceedings.[33]The time limits in section 123 of the EqA 2010 are subject to section 140B of the EqA 2010 (which makes provisions for the extension of time limits as a result of engagement in ACAS Early Conciliation, as contained within section 18A of the Employment Tribunals Act 1996).[34]Employment tribunals in England and Wales were given power to deal with breach of contract claims by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”).[35]The jurisdiction under the 1994 Order only applies to breaches of contract outstanding on the termination of employment, so current employees cannot claim and the Tribunal cannot deal with breaches occurring after termination.[36]Complaints under the 1994 Order must be presented to the Tribunal within three months of the effective date of termination of employment (subject to ACAS Early Conciliation).
Findings of fact
[37]We began our findings by considering the discrete issue of date of knowledge of the Claimant’s disabilities, followed by a general observation, which arose from assessing the evidence and making our findings. Knowledge of disability[38]The Claimant was and continues to be disabled by reason of ADHD. However, it was not in dispute that the Respondent did not have knowledge that the Claimant was disabled by reason of ADHD until 16 March 2022.[39]The Claimant also alleged that he was disabled by reason of stress, anxiety and depression, which he claimed the Respondent was aware of from 24 January 2022. That was denied by the Respondent.[40]The Claimant relied upon an email sent to Mr McKillop, Ms Beer and Ryan Lauderdale (the Respondent’s National Sales Manager) on 24 January 2022, which included the following (at [329] of the Bundle): As mentioned, the current discussions around my role is causing me stress and anxiety leading to not sleeping well, feeling ill etc. I will be taking some time off to get myself in a better place.[41]It was the Claimant’s case that this email fixed the Respondent with knowledge that he was disabled (as defined by section 6 of the EqA 2010) by reason of stress and anxiety. In particular, the email indicated how the impairments were impacting upon the Claimant’s ability to sleep, which was a normal, day to day activity.[42]The difficulty for the Claimant, in our judgment, was that the email did not give any indication or provide any evidence that the impairments of stress and anxiety had lasted or were likely to last for at least 12 months (as required by the statutory definition). As such, a key component of the definition of disability was missing, namely that the impairment and its effects were or were likely to be long term.[43]The Claimant returned to work on 30 January 2022 and met with Ms Beer on 31 January 2022 (the minutes were at [334] – [337] of the Bundle, the Claimant’s covert recording transcript at [338] – [343]). We considered the meeting in more detail, below. However, the Claimant did not provide any further information in that meeting about the stress and anxiety or suggest that the symptoms might last at least 12 months.[44]For those reasons, the Tribunal did not find that the Claimant’s email of 24 January 2022 nor his subsequent meeting with Ms Beer on 31 January 2022 fixed the Respondent, reasonably or otherwise, with knowledge that the Claimant was disabled by reason of stress and anxiety. It was not suggested by the Claimant that any other communication, correspondence or evidence after 24 January 2022 fixed the Respondent with knowledge. As such, the Respondent was not aware that the Claimant was disabled by reason of stress, anxiety or depression during his employment. The Claimant’s perceptions[45]The Tribunal found that there was a recurring theme, which was revealed upon concluding our findings of fact and our analysis of the complaints being pursued.[46]The Claimant believed, from at least October 2021, that the Respondent was set on removing him from the business. In his mind, this was achieved by, variously, ostracising him, undermining him, denying him support, changing his role and ignoring his disabilities. It concluded with the Claimant tendering his resignation in July 2022.[47]We did not doubt the genuineness of the Claimant’s beliefs and perceptions regarding how he thought he was treated and why. However, time and again, the evidence before us contradicted those beliefs and was at odds, at times to a significant degree, with the Claimant’s perceptions. As revealed by our findings, the reality of many of the situations complained about by the Claimant was wholly different to what he perceived, believed or recalled.[48]An example of the Claimant’s genuinely-held concerns about his future within the Respondent was that, following what he regarded as a pivotal meting in October 2021, the Claimant began covertly recording many of the meetings he attended. Some of the transcripts of those recordings were in evidence. They enabled the Tribunal to understand the context within which many of the allegations made by the Claimant were framed. As we detail below, those transcripts were an important source of evidence in reaching our conclusions that, however difficult it may be for the Claimant to hear, his perceptions were often misplaced, erroneous and wrong. Findings of fact[49]The Claimant had an extensive background in pharmaceutical sales, specialising in ophthalmology. In his carer with the Respondent, he was Employee of the Year in 2019 and Global Employee of the Year in 2020. He began his employment as a Commercial Manager, before being promoted first to the role of National Market Access Manager (in April 2020) and then to Regional Sales Manager – South (‘RSM–South’) in September 2020. In addition, he acted up as National Sales Manager for a period prior to the appointment of Mr Lauderdale into that role in January 2022.[51]The CEO and MD of the Respondent are father and son, Simon and Christian Martin.[52]For the purposes of the claim, the chronology began with a meeting of the Respondent’s Senior Leadership Team (which included Mr McKillop) held in October 2021. The Claimant also attended (along with members of his team) and alleged that during the meeting, whilst he was seeking to praise the work of his team, Simon Martin humiliated him and aggressively shouted at him (per Paragraph 5 of the Claimant’s statement). The Claimant subsequently raised his allegations as part of a grievance submitted on 3 May 2022 and discussed further, below (albeit the grievance erroneously referred to the meeting as taking place in December 2021). He did not raise it with his manager or HR at any time before then, although the Claimant alleged to have discussed the meeting with colleagues in its immediate aftermath (although there was no corroborative evidence from those colleagues).[53]Mr McKillop’s recollection of the meeting was somewhat different to that of the Claimant. In his oral evidence, whilst acknowledging that Simon Martin had a direct style, he had no recollection of him jumping down the Claimant’s throat or behaving in the manner alleged. Mr McKillop added that he had attended numerus meetings with Simon Martin and had never witnessed him behaving in the way alleged by the Claimant and did not agree that he could be aggressive or overbearing.[54]It was not in dispute that the meeting took place 18 months into the Covid pandemic, which had understandably impacted upon the Respondent’s performance. The main purpose of the meeting was forecasting. There was pressure on all parts of the business to improve performance. The Claimant did not suggest that Simon Martin had ever treated him that way in the previous six years of his employment (nor did he suggest that he was treated like that again).[55]The Tribunal was faced with two different accounts of the meeting. Mr McKillop’s evidence was particularly telling, given that he had far more interaction with Simon Martin than the Claimant (by way of his senior role) and was better placed to comment on his management style. At the same time, the Tribunal found the Claimant’s behaviour after the October 2021 meeting instructive. As detailed above, he began secretly recording subsequent meetings he attended and not just those he held with Simon Martin. He recorded most meetings he attended. We found such behaviour to be at least indicative of the Claimant’s perception of what he believed had occurred at the meeting in October 2021, even if that perception was misplaced.[56]The Claimant’s perception and his reaction was somewhat consistent with the medical evidence he provided regarding his ADHD. In the course of a consultation of 25 May 2023 with Dr Clarke-Walker, the Claimant’s presenting symptoms had been on-going since 2020 and included the following (at [214] of [The Claimant] is not able to cope he's not able to let go of problems leading to constant anguish…he has a real low self-esteem and self worth.[57]The Claimant also explained in his evidence how, during this time, he was faced with a number of additional challenges in his private life (pertaining to his mother’s health and associated caring responsibilities).[58]Somewhat at odds with the Claimant’s perception (which included his belief that he was now a marked man and Simon Martin would seek to remove him from the business, as, the Claimant believed, he had done with others), the Respondent raised his salary and paid him a bonus in November 2021 (at [262] – [263] of the Bundle).[59]Having regard to the evidence we heard and mindful of the context of the meeting in October 2021, the Claimant’s reaction to it and the medical evidence, we concluded that there was insufficient evidence to find, on balance, that Simon Martin reacted in the meeting in the manner alleged by the Claimant. However, we did find that the Claimant’s perception of how he believed he had been treated was genuinely held, albeit not sufficiently supported by the evidence.[60]As alluded to above, this was the first example of a recuring theme, wherein the Claimant’s perception of what had occurred or what was motivating decisions taken by the Respondent was at odds with the reality of the situation, when the evidence as a whole was examined.[61]Although much was made of this meeting, particularly in the Claimant’s evidence, pleadings and subsequent grievance, it was not relied upon in support of any of the complaints being pursued. However, the Claimant maintained that this was the point at which, in effect, he fate was sealed, his card was marked and the Respondent thereafter was focussed on driving him out of the business.[62]The Respondent operated a mentoring scheme. In 2021, the Claimant’s mentor was Greg Wood, the Respondent’s Chief Finance Officer. In October and December 2021, Mr Wood and the Claimant attempted to arrange a mentoring meeting (at [299] of the Bundle). However, Mr Wood was struggling to find the time for the meeting because of other commitments (not least preparing the Respondent’s annual budget). As such (and as evidenced by the text exchanges at [299]), Mr Wood invited the Claimant to contact him with anything urgent, whilst looking to schedule their meeting for the new year, to which the Claimant indicated his understanding and agreement.[63]No progress was made in the early weeks of 2022 to arrange the mentoring meeting, with neither Mr Wood nor the Claimant chasing the matter up. The Claimant eventually raised concerns at the lack of mentoring in a meeting with Simon and Christian Martin on 8 February 2022 (considered in more detail below). Upon hearing that Mr Wood was struggling to meet with the Claimant, Simon Martin offered to mentor the Claimant.[64]These findings were relevant for two reasons. First, the Claimant alleged that his mentoring had been ended abruptly (per Paragraph 5.1.1.11 of the List of Issues, at Appendix 1). The Tribunal found that was not the case. Instead, Mr Wood had provided an explanation as to why he was struggling to arrange a mentoring meeting and suggested an interim proposal (that the Claimant contact him with anything urgent). The failure to arrange a meeting was not the same as the mentoring arrangement ending, abruptly or otherwise.[65]Secondly, Simon Martin’s reaction to the delays in mentoring (namely, to offer to mentor the Claimant instead) was at odds with both the allegation that mentoring had abruptly stopped and also inconsistent with the Claimant’s characterisation of Simon Martin as having marked the Claimant’s card and being set on removing him from the business.[66]On 10 January 2022, the Claimant met with Mr Lauderdale and Mr MacKillop. It was not in dispute that they discussed changes to the Claimant’s role as RSMSouth. The Respondent had experienced difficulties in recruiting to its RSMNorth post. It was proposed that the Claimant’s geographic responsibilities would change, taking in Scotland, Northern Ireland and the north of England, with Mr Lauderdale (newly appointed as National Sales Manager) taking over management responsibility for London and the south east of England.[67]We did not understand it to be in issue that the following clause was in the Claimant’s RSM-South contract of employment (as it had been in his previous roles of Commercial Manager, at [241] of the Bundel, and National Market Access Manager, at [246]): Your duties may be modified from time to time to suit the needs of the business.[68]The meeting was not recorded by the Claimant nor were any notes made. However, the Claimant sent an email to Mr MacKillop on 12 January 2022, wherein he set out his understanding of what had been discussed, as follows (at [322] – [323] of the Bundle): To follow up from our chat, I was surprised to be told on Monday that my role is changing from RSM-South to now covering Scotland, Northern Ireland, Wales and all of England except for London & the South East without formal consultation with me or a new job description to review. I also feel my current job title is no longer relevant and should be amended inline with what is now a national role, not a regional one. As discussed, given this will be a significant change in responsibility and workload, including travel and time away from home etc. I would like a written job description and a revised job title so that I can consider whether this is something I want to commit to on a permanent basis. As I’m sure you will appreciate, it will be a big difference for me and my family and I would like a reasonable amount of time to consider these changes and to discuss with my Wife the impact upon her and our Daughter.[69]On 21 January 2022, Ms Beer responded to the Claimant, as follows (at [318] of In response to your email…we do not feel there has been a significant change in your role therefore your current job description covers, the role and responsibilities you have been asked to perform. Travel has always been a stipulation of this position with at least 60% of a working week (3 days) on Field Visits aimed at coaching and developing individual’s skills. We can remove the word South from your job title if that would be your preference.[70]On 24 January 2022, the Claimant had telephone meetings with Mr MacKillop and Mr Lauderdale. The Claimant covertly recorded the meetings and the transcripts were in evidence (at [324] and [326] of the Bundle, respectively). The Claimant informed both of them that he was feeling stressed as a result of the proposed changes to his job role and the lack of consultation with him in advance. As a result, he was taking time off work due to ill-health. According to the transcripts, both Mr Lauderdale and Mr MacKillop were understanding and supportive.[71]Thereafter, and as he had indicted in the telephone meetings he would, the Claimant responded to Ms Beer, copying in Mr MacKillop and Mr Lauderdale (at [316] – [318] of the Bundle). He again reiterated his belief that what was being proposed was a significant change to his job, for which he had not been consulted. The Claimant provided further details of why he held that belief and included the following as to possible resolution and a way forward (at [317] – [318]): I would like there to be a reconsideration on the thinking of the approach to date and to seek a meaningful consultation on it. I do see this matter as being resolvable and an ideal outcome would be a proper review of the [job description] and title leading to a benchmarking exercise and review of current remuneration and benefits. But, perhaps more importantly for me, it’s the principle of the process here, the personal recognition and feeling of being valued i.e. the company’s position that this does not amount to a significant and material change. I am not necessarily saying that I won’t or can’t do the proposed role, in fact you know from previous discussions that I am, and always have been, open to taking on more responsibility, but I do feel that this current process and outcome could have been handled better, resolved sooner and more satisfactorily. As I’m sure is clear by now, in its current format, my belief is that this amounts to a significant and material change and as such I cannot accept it. I’d like to keep this discussion positive and work together to get through this, which I do believe we can. I propose we have a meeting at a future date (to be agreed) to discuss further in the hope of moving forward.[72]The response from Ms Beer was positive, with a meeting being proposed once the Claimant returned from his sickness absence (at [316] of the Bundle).[73]As for the Claimant’s sickness absence, he sent another email to Mr McKillop, Mr Lauderdale and Ms Beer on 24 January 2022 (at [329] of the Bundle, which we addressed above, on the issue of knowledge of disability)[74]As proposed prior to his sickness absence, the Claimant and Ms Beer met on his return to discus the proposed changes to his job role (the meeting of 31 January 2022). The main proposed change was that the Claimant would take on RSM responsibilities for the rest of the UK, save for London and the south east of England, which would pass to Mr Lauderdale. The meeting lasted over 30 minutes (at [343] of the Bundle).[75]What was evident from the minutes and the transcript of the meeting was that his reservations and concerns about the changes and the lack of consultation could be resolved by a change in job title, which the Claimant said would afford him appropriate status and recognition, including as follows: 75.1. “It can be simply solved with an appropriate job title change, something that reflects the role” (at [335] of the Bundle); 75.2. “I have no issue with travelling it's the recognition and it comes back to the job title… there is no where I wouldn't travel, I don't have any objections. I think to maintain a regional sales manager job title in that position I think undervalues the role” (at [336]); 75.3. “…it's not the work or the responsibility but the recognition and the feeling of value” ([at 336]); 75.4. [Ms Beer]: so the main concern from what I have picked up today is the job title. You do not feel your current job title matches what you're being asked to do. [The Claimant]: current title and also the way it was delivered really, the lack of consultation, lack of involvement, just to be kind of told one day right you know, you are going to be doing this” (at [337]); 75.5. “I would happily take on the entire country…it’s about the recognition of the role” (at [341]); 75.6. “I mean, if it comes down to one thing, it's…the title to be honest with you” (at [341]); and 75.7. “I mean, the title is kind of the main thing and the value and the recognition around that delivery of the news, you know, I think could have been done differently, but, you know, that's not the thing that kind of keeps me awake at night” (at [343]).[76]Later on 31 January 2022, the Claimant shared an email from Mr Lauderdale with Ms Beer, which included an agenda for a forthcoming team meeting. In particular, the Claimant found it “unusual” that the agenda included an update on reporting structures by Mr Lauderdale, when the same had yet to be resolved or agreed (at [344] – [345] of the Bundle). However, in our judgment and on an ordinary reading of the agenda item, it did not suggest or imply that a decision on the changes to the Claimant’s role had been predetermined. Rather, it was as billed – an update on reporting structures.[77]On 4 February 2022, Ms Beer emailed the Claimant regarding his request that his job title be changed, as follows (at [346] of the Bundle): In the meeting it was highlighted your concern around your current job title and the role and responsibilities you have been asked to perform. After reviewing your job title against the role and responsibilities we feel that the job title is correct. This is because this role covers a region of the UK instead of the full national responsibilities to be deemed a National Sales Manager role. … We will remove the word South from your current job title, so there is no geographical confusion around the region you are covering. Your title will now be Regional Sales Manager.[78]On 7 February 2022, in a text message exchange with Mr Lauderdale, the Claimant stated that he had not yet agreed to the changes to his role (at [347] of the Bundle).[79]The Claimant and Ms Beer spoke further on 7 February 2022. In a follow up email, Ms Beer restated the Respondent’s view that the there were no significant changes to the Claimant’s role and responsibilities and reflected again that the Claimant’s objections, as per their meeting on 31 January 2022, had been around the job title and recognition, not the additional travel or management responsibilities (at [348] of the Bundle).[80]On 8 February 2022, the Claimant met with Simon and Christian Martin. The meeting was secretly recorded by the Claimant (the transcript was at [349] – [361] of the Bundle). The meeting lasted over 50 minutes (at [361]).[81]It was evident from the transcript that the Claimant and Simon Martin had met over Christmas and that this meeting had been arranged, following Simon Martin telling the Claimant to come to him if there was ever anything troubling him (per [349] of the Bundle). The meeting on 8 February 2022 covered a wide range of issues but primarily focussed on the proposed changes to the Claimant’s role.[82]Once again, the Claimant emphasised that his primary issue with the proposed changes was not the increased travel but “recognition and value” (at [350] of the Bundle). Simon Martin spent time in the meeting praising the Claimant’s contribution to the business (“you add a lot of value to the company, your [sic] high performing person” at [351]). Christian Martin shared similar views on the high regard the Claimant was held in by the Respondent (“you're one of the most respected and one of the people that we talk most in the company of how to not only be in medical and healthcare for the next five to 10 years, and how does out just simply get better and better and better and better and fulfil their potential” at [351]).[83]Both Simon and Christian Martin explained to the Claimant the rationale behind the proposed changes to his role, the differences they saw between the national and regional managerial roles, that the changes in geography were a great opportunity for the Claimant, expressed their belief that he would do an outstanding job and offered for the Claimant to go on a leadership course (at [351] & [355] of the Bundle). Simon Martin expressly acknowledged the Claimant’s concerns about the lack of consultation in advance of his meeting with Mr MacKillop and Mr Lauderdale in January 2022 and asked the Claimant what the fix was for that (at [352] – [353]).[84]It was noteworthy that time was being taken by both Simon and Christian Martin to meet with the Claimant, listen to his concerns, reassure him and also sing his praises. Their actions were noticeably at odds with the Claimant’s perception that he was being managed out of the business.[85]As noted above, Simon Martin offered to mentor the Claimant and then agreed to be his mentor, whilst also stating that he wanted to see the Claimant “walking off with…such a big bonus” (at [355] – [356] of the Bundle). The Claimant raised issues with his salary because of the increased responsibilities attendant to changes in his role and the increased time away from home. Simon Martin was of the view that the changes were likely to be rewarded via the bonus scheme (at [356]), whilst Christian Martin explained that they were trying to find lasting solutions to the Claimant’s concerns and that money alone would not necessarily achieve that (at [357]). That last comment echoed earlier comments by Christian Martin, as follows (at [354]): Well, by the way, the reason I'm reticent about talking about money, or anything other than in my experience, about 15 years experience is don't solve the real issue. Okay, what are the real issues have to be addressed? Because we want we don't want you here for six months. We want you here for 10 years…[86]The Tribunal was struck by the care and attention being given to the Claimant’s concerns and the engaged and proactive attitude of both Simon and Christian Martin during the meeting. The Claimant was being listened to and the Respondent was reacting to his concerns and trying to find lasting solutions. Yet again, this was inconsistent with the Claimant’s perception that his concerns were being ignored and that he was being marginalised and manoeuvred out of the business.[87]Simon Martin said the following about the Claimant and his future (at [358] of the Bundle): I said to you…you can easily you could be national sales manager. But you need some more training to get there. You should be able to go beyond that as well. …That's not the glass ceiling of your career. It should be you know, sky's the limit. I don't see why not. You're a bright person. You're hardworking, you're capable. You add a lot of value to any business…[88]Further on, Simon Martin reiterated his role as the Claimant’s mentor and expressed his empathy for the changes which were being proposed to the Claimant’s role (at [359] of the Bundle).[89]The Claimant relied on two specific conversations in the meeting in support of his claim: 89.1. The Claimant alleged that he was told in the meeting that he had been set up to fail. However, that was not what Christian Martin was saying. Rather, as detailed in the transcript, he was acknowledging that the Claimant’s perception was that he had been set up to fail but that his perception was wrong (referred to by Christian Martin as “a misalignment of perception” and that “nobody was conspiring against you” at [351] of the Bundle). 89.2. The Claimant alleged that Simon Martin threatened him in the meeting for using legal language. This referred to an exchange between the Claimant and Simon Martin, where the Claimant referred to being “contracted as regional sales manager south”, to which Simon Martin’s response included the following (at [352]): … don’t start talking in legal language, but what you're contracted for, you know, you're not just contracted for that the company does have the right to change geographies, okay…we should be discussing this as three people who want to migrate. And if you have to really be careful with your language, because you're making me feel tense, when you say stuff like, okay, that is not what your contract for, if you are if you think that you are mistaken. And I just want to make that very, very clear that you're not being punished, you know, that you are being given, in my opinion, I would say the right amount of work and the right you'll be given the right amount of coaching to be able to develop you as simple as that your boss will be Donald [MacKillop] your boss is going to be there's going to is now is Ryan [Lauderdale]. On an ordinary reading, Simon Martin was seemingly seeking to diffuse and ratchet down the Claimant’s reference to his contract and went on to reassure the Claimant that he would be supported and was in no way being punished with the offer of new territories. Read as a whole and in the context the wider meeting, the Tribunal did not find that Simon Martin was threatening the Claimant, as alleged or at all.[90]When read in its entirety, the transcript presented a very supportive, understanding and positive meeting, with Simon and Christian Martin taking an holistic and supportive approach to addressing the Claimant’s concerns. What actually took place in the meeting was very much at odds with the Claimant’s recollections, perceptions and allegations.[91]On 11 February 2022, the Claimant had a performance review with Mr MacKillop (which was again covertly recorded, the transcript appearing at [364] – [396] of the Bundle). The meeting lasted almost two and three-quarter hours (per [396]). Ahead of the meeting, the Claimant completed an appraisal form, to which Mr MacKillop added his own comments and scores (at [300] – [312], erroneously dated 20 December 2021).[92]The Claimant alleged that Mr MacKillop had been instructed by Simon Martin to mark the Claimant down in his appraisal. He presented no corroborative evidence for that allegation. Mr MacKillop in his evidence to the Tribunal denied that Simon Martin had given any such instruction. Given our findings and conclusions on the content, tenor and nature of the meeting on 8 February 2022 (wherein Simon Martin was supportive, empathetic and complimentary of the Claimant), it was, in our judgment, simply not probable that Simon Martin would thereafter ask Mr MacKillop to penalise or undermine the Claimant, as alleged.[93]What was far more probable was that Mr MacKillop, as he conformed and explained in his evidence, reached his own conclusions on the Claimant’s performance. The Claimant did not agree with those conclusions but made the error of assuming that there was some ulterior motive at play. In our judgment, there was not.[94]Mr MacKillop explained the rationale for his assessment of the Claimant’s performance within the appraisal form. In addition, he took time to explore, discuss and explain his assessment to the Claimant during their meeting on 11 February 2022, including the following: 94.1. Why he scored the Claimant three for prioritisation (at [384] of the Bundle); 94.2. His conclusions on ownership and critical thinking (at [385]); and 94.3. That many of the examples relied upon by the Claimant were him simply doing his job and the Claimant accepted that his objectives “kind of went to the background” (at [387]).[95]The Claimant appeared to accept that there were shortcomings in his performance, referring to being “pointed in the wrong direction” and “objectives have drifted off” (per [387] & [388] of the Bunde). Mr MacKillop concluded the meeting in a positive manner, explaining how he could support the Claimant moving forward and by extension improve his performance, which the Claimant reacted to in a similarly positive manner (at [389]).[96]In conclusion, the performance review was squarely based upon Mr MacKillop’s assessment of the Claimant’s performance against set objectives, as evidenced by both the meeting and the appraisal report. It was not part of a plan directed by Simon Martin. Rather, it was Mr MacKillop’s professional assessment of the Claimant’s performance, which was explained and reasoned. The conclusions reached by Mr MacKillop were open to him, based upon his assessment. Indeed, the Claimant himself acknowledged that there were shortfalls in his performance during the meeting of 11 February 2022.[97]In short, the only thing which informed the performance review was Mr MacKillop’s assessment of the Claimant’s performance.[98]The Claimant took a period of pre-booked annual leave from 15 to 25 February 2022. He then commenced a period of sickness absence from 9 March 2022 until 6 April 2022. After initially self-certifying, the Claimant provided fit notes. The fit note of 15 March 2022 disclosed to the Respondent, for the first time, that the Claimant was diagnosed with ADHD (at [404] of the Bundle).[99]The Claimant attended a return to work meeting on 7 April 2022, with Mr Lauderdale and Ms Beer. The Claimant again recorded the meeting secretly and without the other attendees knowledge or consent. The transcript was in evidence (at [405] – [433] of the Bundle). The meeting lasted two hours (per [433]). In addition, a return work form was completed, which contained a summary of what was discussed (at [458] – [459]).[100]The context of this meeting was important. The Claimant was returning to work after being absent due to ill-health for almost a month. He was still suffering from stress (as per the fit notes) but was now also presenting with ADHD, something which until then was unknown to the Respondent.[101]Against that background, the return to work meeting included the following (per the transcript): 101.1. Ms Beer enquired what could be done to support the Claimant, who indicated support with administrative work, structure and the need for clear guidance (at [408] – [409] of the Bundle); 101.2. The Claimant was clear that he was able to manage the ADHD himself, as he had been doing up to that point (at [409]); 101.3. Ms Beer asked how the Respondent could support the Claimant regarding his stress and the Claimant referred back to issues with his job title and being away from home (at [409] – [410]); 101.4. A phased return was explored but the Claimant said he felt able to return on a full time basis and discussed what support he may need. It was clear that the suggestion of a phased return was not being imposed but explored as an option, with the Claimant’s health and welfare the only consideration, with Mr Lauderdale stressing that the Claimant’s health was “number one” (at [413]); 101.5. Ms Beer raised the demands of the Claimant’s role and the need to protect the Claimant from further stress. The Claimant reported that he thought he would be ok but Mr Lauderdale re-stated the Respondent’s concerns and reservations, given the Claimant’s recent medical history. He also revealed that such discussions had taken place whilst the Claimant had been absent due to his health (at [415] – [417]. In our judgment, such discussions, both before and after the Claimant’s return to work, were appropriate and understandable. At all times, it was clear that the Claimant’s welfare was paramount; 101.6. With that in mind, Mr Lauderdale outlined a plan to ease the Claimant back into his role over time, so as to not overwhelm him and protect his health. Ms Beer confirmed that the proposed changes would be on an interim basis, utilising the Claimant’s skills without risking his health (at [417]). Again, the Respondent was seeking to support the Claimant back into work without causing him unnecessary risk to his health; 101.7. Ms Beer went on to discuss time frames to build up the Claimant’s role and workload, to ensure that he would not be overwhelmed (at [418]); 101.8. The Claimant asked to think over the proposals, acknowledging that they were “not necessarily a bad thing…and may well suit me better” (at [422]); 101.9. Mr Lauderdale again reassured the Claimant on the rationale behind the proposals, namely to protect his health (at [422]); 101.10. The Claimant expressed his appreciation for being kept involved in the business and, whilst he described the proposals as “a big change”, he did not “mean that negatively” (at [423]); 101.11. Mr Lauderdale summarised the intent behind the proposal as follows (at [425]): To…get the best out of you…without jeopardising your health. For the benefit of yourself and the business…It may look like this…Let's see how that works. Rather than saying, all right, we'll ignore everything that's just happened. And reset the clock. throw you back in…Same issues same demands. sank back to square one business…see where it takes us. And there's no crystal ball. 101.12. It was made clear that what was being suggested was a proposal, for the Claimant to consider and comment upon (see, for example, Mr Lauderdale at [428] and Ms Beer at [431]).[102]On 8 April 2022, there was a further short meeting between the Claimant and Ms Beer. They were joined by Jubila Fernando (also from HR). The meeting was covertly recorded by the Claimant (the transcript was at [438] – [439] of the Bundle). This was a follow up after the Claimant had asked to sleep on the proposals made in the return to work meeting.[103]Shortly after the meeting, the Claimant emailed Ms Beer and Ms Fernando, as follows (at [442] of the Bundle): Thanks for your time this morning To confirm: 1) I am not agreeing to the 20 hours proposal. I will be back full time from yesterday as I have taken the time off to get better and I am better. This is backed up medically by the expiration of my most recent fit note. 2) Regarding the role change. I am not saying no at this stage but I would like a draft proposal in the very short term outlining the proposed responsibilities via email and then a fully scoped out formal written [job description], Objectives, reporting line, confirmation of my salary staying the same, car allowance, full time, permanent etc. before I can be in a position to make a decision.[104]Ms Beer responded to the Claimant later the same day, as follows (at [441] – [442] of the Bundle); In response to your points…and as referenced in the meeting, your health and wellbeing is our priority and as a duty of care as your employer we advised a phased return to work after your period of absence from the 9th March to the 6th April. You have rejected this proposal of 20 hours per week for the next 4 weeks and as stated below you have confirmed you are fit to return to work full time. This is also in agreement by your GP. In terms of the role change mentioned below I think there is some confusion. Just to be clear we are not changing your role but changing some of your duties to include the following: 1. Generics 2. OTC 3. Training 4. Account management 5. Market access And we will be removing all coaching and field visit duties with the team. As stated in your contract we can change your duties in line with business needs and this is in reasonable scope for your role as part of the commercial team. All terms of your contract will remain the same. Ryan [Lauderdale] will be touch to provide the full details around the change in your duties and objectives based on a 40-hour week.[105]On 11 April 2022, the Claimant emailed Ms Beer, alleged that the proposal constituted a change of role and stated that he could not agree to it (at [441] of the Bundle). In her response of the same day, Ms Beer stated that the proposal would be “deemed as a reasonable management instruction” and reiterated that Mr Lauderdale would meet with the Claimant to provide more information about the proposals (at [440]).[106]Also on 11 April 2022, Mr Lauderdale circulated a welcome back email, which included the following (at [444] of the Bundle): I would like to announce a warm return for [the Claimant], it’s great to have [the Claimant] back and I speak for the entire team when I say we are thankful for your return. In the interim please continue to report to me and I will continue hosting the Monday calls.[107]The Claimant alleged that this was evidence of his sales team being removed from him (per the reference to them reporting to Mr Lauderdale). However, it was not in dispute that Mr Lauderdale had managed the team during the Claimant’s sickness absence and his continued involvement with them (which was, in his own words, in the interim) was wholly consistent with the discussion and proposals during the return to work meeting of 7 April 2022 (of easing the Claimant slowly back into his role). It was not evidence of the Claimant’s team being removed from him, as alleged.[108]The Claimant met with Mr Lauderdale and Mr MacKillop on 11 April 2022. Although there were no details of the meeting in evidence, the Claimant made reference to the meeting in his email to Ms Beer on 12 April 2022, as was the proposal that there was to be another meeting the following week (at [456] – [457] of the Bundle). It was apparent that there had be discussions regarding the scope and responsibilities of the Claimant’s interim, return to work role. The Claimant continued to view it as a role change, for which he wanted more details. He also posed a number of questions for Ms Beer.[109]The Tribunal noted that the Respondent’s Head of UK & India (Mr MacKillop) and the National Sales Manager (Mr Lauderdale) were continuing to commit time and effort to supporting the Claimant in understanding the proposed interim role and supporting his return to work (mindful that he had been absent by reason of stress and now aware, for the first time, that he had ADHD). This was consistent with the approach take by Mr Lauderdale and Ms Beer in the return to work meeting of 7 April 2022. It was wholly inconsistent with the Claimant’s allegations that the Respondent was seeking to ostracise him and drive him out of the business.[110]Later on 12 April 2022, Ms Beer responded to the questions asked of her by the Claimant (at [455] – [456] of the Bundle). This was again consistent with the Respondent seeking to engage with, support and reassure the Claimant. One answer in particular was the subject of some focus in the case. We reproduce the question and answer in full, as follows (at [455]): [Question] In the meeting, Donald [MacKillop] and Ryan [Lauderdale] discussed, and then subsequently sent me, actions related to this new role. In the interest of the business, a harmonious working environment and goodwill I will do what is asked in the interim (i.e., whilst I get a full understanding of the role along with the associated documents listed below) before I can be able to agree or not. [Answer] As this is a reasonable request, we do not require your agreement, if you refuse to perform the duties, it will be raised as a Conduct issue.[111]In the context of the support, encouragement, empathy and reassurance being provided to the Claimant, Ms Beer’s reference to conduct issues appeared somewhat stark. As noted above, Ms Beer shared in her statement that she herself is neurodiverse. She did not provide, and was not asked for, further details of that neurodiversity. The Tribunal did however note her explanation, during cross-examination, as to why she answered a number of questions “I don’t know.” Ms Beer referred back to guidance given to her (and all the witnesses) that if they could not remember or were not sure of the answer to a question asked of them, they must say so. Ms Beer stated that she was answering “ I don’t know” when she was unable to remember something or was unsure of her memory of it. In particular, she was clear that she did not want to not follow the guidance given to her by the Tribunal.[112]That literal interpretation was, to a degree, evident in Ms Beer’s answer to the Claimant of 12 April 2022, set out above. In one sense, Ms Beer was stating a fact – failure to comply with a reasonable instruction is a conduct issue. Her answer was, to that extent, literal. Such language was at odds with how the Claimant’s return to work was being managed, including by Ms Beer. Whatever the reasons were for using such stark and literal language, they did not, in our judgment, diminish the overall approach being adopted by the Respondent, of supporting the Claimant back into work in a positive, responsive and considered manner.[113]On 13 April 2022, the Claimant raised a number of other concerns with Ms Beer (at [454] – [455] of the Bundle). She did not ignore or dismiss those concerns. Rather, Ms Beer replied the following day, asked the Claimant to confirm what workplace adjustments he required (so that the Respondent could take them into consideration) and agreed to arrange a formal grievance meeting to address the Claimant’s on-going concerns (at [454]).[114]Also on 13 April 2022, the Claimant spoke with David Littlefair, a colleague and fellow employee. That call was covertly recorded by the Claimant, without Mr Littlefair’s knowledge (the redacted transcript was at [460] – [474] of the Bundle). Mr Littlefair had attended a team meeting that day, chaired by Mr Lauderdale in his role of managing the Claimant’s team during his return to work (and as detailed, above). The Claimant complained that he had been told that he was not “needed at the meeting for the moment or something like that” (at [462]), which appeared consistent with the interim nature of the proposed changes to the Claimant’s role.[115]In response, Mr Littlefair reported that in the meeting Mr Lauderdale had “talked about [the Claimant] being back and how glad we were to have [the Claimant] back” and that the Claimant’s return was being managed. There was then the following exchange (at [462]): [The Claimant] well, I think there's a bit of a game being played personally. [Mr Littlefair] [Mr Lauderdale] didn't say, oh, that [Claimant], you know, we're keeping him at arm's length, and we're gonna get rid of him. And there wasn't there was nothing controversial. He just said, [the Claimant’s] back into business. We're really glad to have him back…[116]The Claimant told Mr Littlefair that he believed that he was being manoeuvred out by the Respondent. Whilst that may have been the Claimant’s belief, it was, in our judgment, not only inconsistent with what he was being told by Mr Littlefair but also completely at odds with all the time, effort, support, encouragement, empathy and engagement being afforded to the Claimant by senior staff (and set out, above).[117]Reference was made to a product launch which the Claimant alleged he was excluded from. It was not in dispute that the Claimant was not invited to attend a meeting about a new product. However, it was the oral evidence of both Mr MacKillop and Ms Beer that it was not usual to invite to such meetings anyone who would not be directly involved in the product itself. That was the justification for not inviting the Claimant.[118]On 29 April 2022, Ms Fernando (of HR) informed the Claimant that his performance review scores were being “revised post discussion with Donald MacKillop” because “the scores cannot be mid-range, it has to be rounded of to a single digit” (at 476] of the Bundle). The changes were two-fold (per [272] of 118.1. The Claimant’s overall rating was revised from 2.7 to 3; and 118.2. The number of objectives completed were changed from “2 partly met” to “none completed.”[119]In his oral evidence, Mr MacKillop recalled discussing the changes with HR and that it was his recollection that the changes were made by HR because they did not operate on fractional scores or objectives being partly met (they were ether completed or they were not). Mr MacKillop’s recollection was consistent with the reasoning within Ms Fernando’s email of 29 April 2022.[120]On 3 May 2022, the Claimant, via solicitors, submitted his formal grievance (at [480] – [489] of the Bundle). On 5 May 2022, Ms Beer wrote to the Claimant, acknowledged his grievance, explained that she would investigate his concerns and proposed to meet on 10 May 2022 (at [490] – [491]). On 9 May 2022, the Claimant objected to Ms Beer investigating the grievance, as some of the complaints related to her (at [492]). Ms Beer responded within the hour and confirmed that she would cancel their meeting on 10 May 2022 and would find someone else to investigate and decide the grievance.[121]On 13 May 2022, Ms Beer informed the Claimant that his grievance would be investigated by Greg Hughes, the Respondent’s legal officer (at [494] – [496] of the Bundle). This was subsequently changed to Tamla Phillips, a consultant with Peninsula, when the Claimant also objected to Mr Hughes’ involvement on grounds of impartiality (per Paragraph 20 of the Claimant’s statement and [497]).[122]The Tribunal was struck by how responsive the Respondent (via Ms Beer) was to the Claimant’s requests. The responses not only acceded to the requests but were also the appropriate courses to take to ensure that the Claimant’s grievance was properly and fairly considered. It was a mistake for Ms Beer to have any involvement in the grievance process. Once she recognised that, immediate steps were taken to correct the situation. When the Claimant objected to Mr Hughes’ involvement, the Respondent did not push back or ignore him. They accommodated his concerns. All of this was, once again, at odds with the Claimant’s belief that the Respondent was trying to ostracize him and remove him from the business.[123]The Claimant attended the grievance meeting with Ms Phillips on 14 June 2022. He recorded the meeting covertly and without Ms Phillips knowledge or consent. The transcript of the recording was at [498] – [516] of the Bundle. The meeting lasted over an hour (per [516]). The transcript evidenced Ms Phillips taking the Claimant’s concerns, as raised in his grievance, seriously and engaging with them throughout. The Claimant sent a follow up email to Ms Phillips on 18 June 2022 (at [518]).[124]On or around 5 July 2022, Ms Phillips notified the Claimant that her report was finalised and would be forwarded to the Respondent (per the Claimant’s email to Ms Beer on 11 July 2022, at [519] – [520] of the Bundle). On 11 July 2022, Ms Beer provided the Claimant with Ms Phillips’ report, dated 6 July 2022 (at [520] – [560]).[125]Ms Phillips did not uphold any of the Claimant’s specific complaints (her reasoning was at [525] – [531] of the Bundle) but did make a number of recommendations (at [531] – [532]). The report detailed the investigations undertaken by Ms Phillips (the minutes of her meetings with various employees, including the Claimant, were annexed to the report). In particular, Ms Phillips noted and recommended the following (per Paragraph 78, at [531]): Whilst the Grievances are not upheld, it is noted that there is damage to employer/employee relationship and that this is causing disturbance to the workplace. It is recommended that consideration be given to taking part in workplace mediation in order to build a professional workable relationship between both parties.[126]In our judgment, the Claimant’s grievance was investigated and determined in a reasonable, thorough and transparent way.[127]Ms Beer wrote to the Claimant on 11 July 2022, in light of the grievance report. That letter included the following (at [562] of the Bundle): Having carefully considered the report of their findings and recommendations, it is my decision that there are no grounds to uphold your grievances and they should be dismissed in their entirety. Based on the recommendations we would like to engage in workplace mediation to build a professional working relationship. We will be in touch regarding this in due course. You have the right to appeal against my decision and should you wish to do so, you should w rite to Ketan Maisuria, HR Manager within 5 days giving the full reasons as to why you are dissatisfied w it h my decision.[128]Ms Beer was challenged during her oral evidence to that fact that she had been involved in the decision to not uphold the Claimant’s grievance, despite the fact that she had agreed not to be involved following the Claimant’s objections (based on the fact that some of the complaints related to her). In response, Ms Beer said that the letter should have said that the decision was that of the Respondent, as she had not been the sole decision maker.[129]In our judgment, that somewhat missed the point. Ms Beer should not have had any involvement in the grievance decision making whatsoever. However, it was not suggested by the Claimant that a different manger, wholly unconnected with the grievance, would have reached a different conclusion, given the detail and extent of Ms Phillips’ investigation and report. The Respondent also adopted Ms Phillips’ recommendation of mediation and indicated its willingness to engage with the Claimant, per Ms Beer’s letter, above.[130]In reality, the Respondent was simply adopting Ms Phillips’ report in its entirety. In our judgment, it was entitled to do so, given the thoroughness of the investigation and the reasoning provided by Ms Phillips for her findings, conclusions and recommendations. In addition, the Claimant was afforded a right of appeal, within which he could address any concerns regarding the procedures adopted by the Respondent. Despite Ms Beer’s apparent involvement in the decision to adopt the report, we did not find that that rendered the process unfair, undermined the findings within the report or prevented the Respondent from adopting those findings. In addition, Ms Beer’s involvement, although an error, did not evidence an underlying desire by the Respondent to ostracise the Claimant or manoeuvre him out of the business.[131]Notwithstanding that, on 19 July 2022, the Claimant tendered his resignation, on three months notice (at [563] – [568] of the Bundle). He set out his reasons for resigning, which included: 131.1. What he termed “the complete failure in the grievance procedure” i(at [564]); 131.2. The failure to consider his disability and make any reasonable adjustments (at [565]); 131.3. Discrimination on grounds of his disability (at [565]); and 131.4. The lack of attention and concern for his health and well-being (at [565]).[132]The Claimant exercised his right of appeal regarding the grievance outcome and also disclosed that he had “accepted a new role elsewhere that is paying less” (at [566] of the Bundle). The Claimant had been offered a role on 12 July 2022 (per [619] – [620] of the Bundle). In his oral evidence, the Claimant confirmed that he started in his new job almost straight away after leaving the Respondent.[133]On 21 July 2022, the Claimant provided the grounds of his grievance appeal (at [569] – [572] of the Bundle). On 1 August 2022, Gareth Motley, the Respondent’s Business Manager, acknowledged the Claimant’s appeal, set out his understanding of what the grounds were and asked the Claimant to contact him if his understanding was incorrect or the Claimant wanted anything else considered. He also invited the Claimant to a meeting on 3 August 2022 (at [573] of the Bundle).[134]The appeal took place as arranged on 3 August 2022. It was recorded by the Claimant, without the knowledge or consent of those present (the transcript was at [574] – [593] of the Bundle). The meeting lasted over an hour and a half (at [593]). On 18 August 202, Mr Motley provided his appeal outcome decision to the Claimant (at [594] – [598]). It included a full explanation for Mr Motley’s conclusions, as well as the minutes of the meeting of 3 August 2022. The Claimant’s appeal was rejected.[135]On the Claimant’s case, the Respondent had achieved its objective upon receipt of his resignation on 19 July 2022. He was, in his words, out of the business. It was therefore striking that, notwithstanding the Claimant’s suspicions, the Respondent continued to commit time and resources to the Claimant’s grievance appeal, including conducting a lengthy appeal meeting and providing full reasons for the appeal outcome. In our judgment, the Respondent’s actions, even after the Claimant had tendered his resignation, were inconsistent with the Claimant’s hypothesis that he had been ostracised and managed out of the business.[136]Those observation were further reinforced by Ms Beer’s email to the Claimant on 19 August 2022, as follows ( at [614] of the Bundle): I hope you are well. Now that your appeal has been heard would you like to reconsider your resignation?[137]On 23 August 2022, the Claimant informed Ms Beer that he would not reconsider his resignation and would be approaching ACAS (at [614] of the Bundle). He started Early Conciliation on 30 August 2022.[138]On 25 August 2022, and in light of the Claimant’s email, Ms Beer wrote to him, accepted his resignation and placed him on garden leave for the remainder of his notice period (at [616] of the Bundle). We were again mindful that the Respondent’s actions, even at this stage, were at odds with the Claimant’s narrative and perception. The Respondent waited until the conclusion of the grievance appeal and its invitation for the Claimant to reconsider his decision to resign before formally accepting the resignation. Prior to that, the Respondent had also proposed mediation. It was only after the Claimant re-stated his intention to resign that the Respondent accepted the same. If, as the Claimant believed, the Respondent wanted him gone (and had done so since October 2021 when, in the Claimant’s words, his “card was marked”), why did they not simply accept his resignation when it was tendered on 19 July 2022, instead of wating six weeks, engaging with his grievance appeal and inviting him to reconsider? In our judgment, and once again, what the Respondent actually said and did was wholly at odds with what the Claimant believed or perceived.[139]On 14 October 2022, the Claimant presented his claim to the Tribunal. His employment with the Respondent terminated on 19 October 2022. Analysis & conclusions[140]We applied our findings of fact to the matters set out in the List of Issues (at Appendix 1), save that we determined the question of time limits last. Unfair dismissal[141]The Claimant claimed that he had been constructively dismissed. He relied on 15 alleged breaches of contract. We considered them in the order that they appeared in the List of Issues (at Paragraph 5.1). The alleged breaches are in italics. In January 2022 unilaterally change the Claimant’s role from Regional Sales Manager South to effectively a national role covering Scotland, Northern Ireland and North England. The Claimant lived in South Wales.[142]As we found above, the terms and conditions of the Claimant’s previous roles included a standard clause permitting the Respondent to modify duties to suit the needs of the business. Although we did not have sight of the Claimant’s contract of employment for his RSM role, the inclusion of that standard clause was not materially challenged.[143]The changes to the Claimant’s geographic coverage were justified by the Respondent in reliance on that clause. The job itself did not change but the regions for which the Claimant was responsible for did. That reflected, in part, the difficulties the Respondent had experienced in trying to fill the vacant RSMNorth role. With the appointment of Mr Lauderdale to the National Sales Manager’s role, the Respondent took the opportunity to change the Claimant’s geographic areas of responsibility (with Mr Lauderdale taking over responsibility for London and the south east).[144]The Claimant at the time wanted his job title changed. The Respondent agreed to change his title to RSM (from RSM-South). The Respondent was entitled to resist the Claimant’s request that the role be seen as national because it wasn’t. Indeed, much of the Claimant’s objections related to issues of status and recognition, rather then the changes to his areas of responsibility.[145]In short, Mr Lauderdale remained as National Sales Manager and the Claimant remained as RSM, save that his regions changed. It was not, in our judgment, a change of role outside of what was permitted by the Claimant’s contract. There was a genuine business need and the changes involved a modification of the Claimant’s duties.[146]For those reasons, the changes to the Claimant’s role introduced in January 2022 did not constitute a breach of contract. In a back to work meeting with Oliva Beer and Ryan Lauderdale in approximately March 2022 tell the Claimant he was having a role change. The Claimant says his ADHD was discussed at length at the meeting. The Claimant says the new role was a desk-based job and he explained that a desk job would be difficult due to his ADHD. The Claimant says despite explaining the difficulties they took him off the field work and moved to a desk job.[147]As noted above, the return to work meeting took place on 7 April 2022. As we found, what was being suggested to the Claimant was a proposal. There was no imposition. The changes were also being proposed on an interim basis only and were only ever informed by reasonable and genuine concerns about the Claimant’s health. He was returning to work, after being absent for a month and, for the first time, disclosing a diagnosis of ADHD (in addition to stress-related illness). By way of example, the Respondent proposed a phased return to work, the Claimant objected and, as a result, he was allowed to return on a full-time basis.[148]The Claimant’s interpretation and perception of the return to work meeting was not supported by the evidence, which included the transcript of his own recording. What was being proposed by the Respondent was reasonable, considered and wholly informed by the Claimant’s health and welfare. None of the proposals made during the return to work meeting nor any other aspect of that meeting breached the terms of the Claimant’s contract of employment, whether express or implied. Exclude the Claimant after he had told the Respondent about his diagnosis of ADHD. The Claimant says he was excluded, despite being, part of the sales team for seven years, and gave examples of being removed from WhatsApp groups and new product launch meetings from approximately April/May 2022;[149]As we found, there was no evidence of the Claimant being ostracised or managed out of the business. Rather, and as noted above, there were measures and proposals being made by the Respondent to accommodate and protect the Claimant’s health and welfare.[150]There was insufficient evidence of why or by whom the Claimant was removed from any WhatsApp groups, still less any evidence that such a move was undertaken or directed by any of the Respondent’s management. The Claimant’s team were reporting temporarily to Mr Lauderdale, who had been managing them whilst the Claimant had been on sick leave. That arrangement continued on an interim basis following the Claimant’s return to work, for the sole reason of gradually building back up the Claimant’s responsibilities. That was, in our judgment, a reasonable and considered approach, which reflected the Respondent’s desire not to overburden the Claimant after his sick leave.[151]There was no basis not to accept the oral evidence of Mr MacKillop and Ms Beer as to the reason for not inviting the Claimant to the product launch (that those not involved in the product were not usually invited to launch meetings). In addition, there was nothing, save for the Claimant’s perception and belief, that such a decision was in any way motivated by a desire to exclude or ostracise the Claimant, still less that the decision was in any way informed by the Claimant’s diagnosis of ADHD.[152]In reality, the evidence supported a contrary conclusion. The Respondent was seeking to support the Claimant back into the workplace. If there were a conscious decision not to invite the Claimant to meetings or product launches in April and May 2022, it was far more probable that such decisions were taken not to exclude the Claimant but to support him back into work.[153]As recorded at the return to work meeting of 7 April 2022, Mr Lauderdale was clear that he did not want to overload or overwhelm the Claimant, after returning to work from a month off with stress and disclosing a diagnosis of ADHD.[154]However the Claimant may have perceived the Respondent’s actions upon his return to work, they were not driven by any desire to ostracise or exclude him and were not breaches of his contract of employment. Not properly address and consider all aspects of the grievance the Claimant lodged a grievance on 3 May 2022. Not conduct a proper grievance appeal process following his appeal in June/July 2022.[155]We considered these two alleged breaches together, as they both related to the grievance process.[156]The Tribunal found that the grievance investigation and report were sufficiently thorough, reasoned and transparent. In submissions, the Claimant raised the failure to deal with his complaints about Simon Martin (specifically, the allegations pertaining to Simon Martin’s behaviour during the meeting in October 2021, erroneously referred to as December 2021, at [482] of the Bundle and in the context of the alleged unilateral changes to his contract).[157]The grievance was formulated by the Claimant with legal assistance. It identified four heads of grievance (summarised in the grievance report at [523] of the Bundle). Whilst not all the individual points were addressed, the stated heads of grievance were. As such, we found that the Claimant’s grievance, as presented, was properly considered and determined, albeit the outcome was not to the Claimant’s satisfaction.[158]In addition, the Claimant was afforded and exercised a right of appeal. Whilst the Claimant did allege in his appeal that the grievance had not been fully investigated, that some aspects had been “conveniently ignored” and the allegations of bullying had not been considered (at [569] & [572] of the Bundle), there was no specific mention of the allegations against Simon Martin. However, in the course of the appeal hearing, the Claimant raised their omission as an additional point and it was considered by the appeal officer, who concluded as follows (at [596] of the Bundle): I do not believe this was deliberately omitted from the Peninsula Report Findings but left out due to lack of detail in the grievance hearing. It is not clear how this point relates to Part 1 of the grievance it sits under [the alleged unilateral change to contract terms].[159]As such, the grievance process as a whole did specifically consider the allegations of bullying by Simon Martin, in the manner set out above.[160]In conclusion, we found that the Respondent did conduct a proper and adequate grievance and grievance appeal, which did not breach the terms (both express and implied) Claimant’s contract of employment. Not pay the Claimant a sales bonus in the second half of 2021 and not pay him and not make him eligible for a bonus, or partial bonus, in 2022.[161]As found, the Claimant received a bonus and a pay rise in November 2021 (per [262] – [263] of the Bundle). Ms Beer’s written evidence was that both of these were paid to the Claimant earlier than his colleagues, to reflect his performance to date (at Paragraphs 6 & 7).[162]To the extent that bonuses were linked to performance, we reminded ourselves of Mr MacKillop’s performance review of the Claimant of February 2022. As we found, that review was Mr MacKillop’s alone and it was evidenced and reasoned. The findings reached by Mr MacKillop were open to him. To the extent that the review informed any non-payment or reduction in the Claimant’s entitlement to a bonus, there was no breach of contract. The Respondent was entitled to operate a performance-related bonus scheme and if the Claimant’s performance, as assessed by Mr MacKillop, did not qualify him for a full bonus, so be it. Threaten the Claimant. The Claimant says he received threats from the CEO, Simon Martin, before he commenced sick leave, 8 February 2022 and was told to be very careful about legal language.[163]We repeat out findings of fact on this allegation. There were no threats and no threatening language during the meeting with Simon and Christian Martin on 8 February 2022.[164]It follows that there was no breach of the terms of the Claimant’s contract of employment. The Claimant said Simon Martin told him he was set up to fail, and that his line manager, Donald MacKillop, told him that he hadn’t been able to give him the time he deserved.[165]As detailed above, the Tribunal’s interpretation of what was said at the meeting on 8 February 2022 was contrary to the Claimant’s. We found that, contrary to the Claimant’s recollection, it was Christian Martin who had talked about being set up to fail. Importantly, he was referring to the Claimant’s perception of being set up to fail, which Christian Martin acknowledged but shared the view that such a perception was misplaced.[166]In their performance review meeting on 11 February 2022, Mr MacKillop told the Claimant that, in his view, the Claimant had not had “enough support” (at [386] of the Bundle) and made clear that the Respondent needed to “invest some support” (at [389]). Mr MacKillop accepted, both in the meeting and in his oral evidence, that, in his view, the Claimant had not been sufficiently supported by previous line managers (which accounted, in part, for the issues with his performance) but a clear outcome of the performance review meeting was that changes would be made to address that.[167]We did not find that either of these interactions with the Claimant undermined the implied term of mutual trust and confidence or breached his contract of employment in any other way. Indeed, the Claimant agreed with much of Mr MacKillop’s observations and recommendations in their meeting (as evidenced by the transcript). Whilst the Claimant’s perception may have changed since, there was clear evidence of Christian Martin, Simon Martin and Mr MacKillop being supportive and positive toward the Claimant and, in Mr MacKillop’s case, seeking to manage, support and improve the Claimant’s performance. Mark the Claimant down in an appraisal. The Claimant says that at an appraisal undertaken by Donald McKillop in approximately December 2021, he was severely marked down unfairly and given the worst mark he could get. The Claimant says he was not given a mid-year appraisal. This period was impacted by Covid.[168]We repeat our findings on the performance review and Mr MacKillop’s reasoning and justifications for the marks he awarded to the Claimant. As found, Mr MacKillop’s conclusions were reasonably open to him. Indeed, as we have noted, the Claimant, at the time, agreed with many of the points being made by Mr MacKillop to justify his conclusions. Whilst the Claimant was marked down (compared to previous reviews), he was not treated unfairly or harshly, as claimed.[169]The Claimant disagreed with the outcome of the performance review. However, that did not render it unfair or undermine Mr MacKillop’s reasoning or decisions. In addition, there was no evidence that Mr MacKillop was acting on the instructions of Simon Martin nor was he motivated by any desire to manage the Claimant out of the business.[170]It was open to the Respondent to manage and monitor the performance of its employees. That is what it did in respect of the Claimant. The concerns regarding his performance were reasoned and justified. A plan was put in place to help the Claimant improve those areas of performance which required support. Nothing in the performance review process constituted a breach of any term of the Claimant’s contract of employment, express or implied. Tell the Claimant that a consequence of not agreeing the national role would result in a disciplinary matter. The Claimant says he asked HR what the consequence of not agreeing to the national role and HR said it would be a disciplinary matter.[171]This was a reference to email exchanges between the Claimant and Ms Beer in April 2022 and was reflective of the issue between the parties as to whether the proposals in the return to work meeting constituted changes to the Claimant’s role which fell outside of his contract. As we have found, they did not.[172]Those email exchanges were at [440] – [442] and [455] – [457] of the Bundle. On both occasions, the Claimant indicated that he would not agree or was not able to agree to the proposals put forward. He did not ask what the consequences would be. In response, Ms Beer stated that what was being proposed would be deemed as a reasonable management instruction (at [440]) and a refusal to perform the duties requested would give rise to a conduct issue (at [455]). She did not explicitly state that it would be a disciplinary matter.[173]In one sense, Ms Beer was simply stating the facts and making clear that, contrary to the Claimant’s view, the Respondent did not need his agreement because the changes proposed fell within the terms of his employment contract. Ms Beer was, in terms, stating the Respondent’s position. We referred earlier to the literal nature of her communication and that her use of language was somewhat stark.[174]However, there was nothing inherently incorrect in informing the Claimant that not following a reasonable management instruction would be viewed as an issue of conduct. It would be and not just by the Respondent but by any reasonable employer. As we concurred with the Respondent and found that what was being proposed in April 2022 (and also in January 2022) were not changes to the Claimant’s contractual terms, his consent and agreement were not necessary. They were, to that extent, reasonable management instructions. However the consequences of refusing to follow such instructions was communicated to the Claimant by Ms Beer, those communications did not constitute breaches of the Claimant’s contract of employment. Abruptly end the mentoring arrangement. The Claimant says he was being mentored by the Finance Officer and that ended abruptly with no explanation in December 2021.[175]The allegation was factually inaccurate. For the reasons detailed above, we found that the Claimant’s mentoring arrangement was not abruptly ended in December 2021 or at all. Rather, there were difficulties in arranging mentoring meetings with Mr Wood, who explained why to the Claimant. When the Claimant raised this with Simon Martin, he agreed to become the Claimant’s mentor in place of Mr Wood.[176]As the allegation was not made out, there was no breach of the Claimant’s contract. Not give him a new job description. The Claimant says he was told by Olivia Beer after the back to work meeting that he would be given a new Job Description and this did not happen.[177]In the return to work meeting, there was a discussion about a job description but Mr Lauderdale explained that he did not want to put any time frame on it, that they needed to have a discussion about the role more generally and think about what was being proposed (at [430] of the Bundle).[178]Following the return to work meeting, the Respondent (by way of Ms Beer) was consistent in its view that neither his job nor his role was being changed. Rather, some of his responsibilities and duties would change (and even then, as made clear in the return to work meeting, only on an interim basis).[179]In her email of 12 April 2022, Ms Beer responded to questions posed by the Claimant, including a request from him for a new job description. In her response, Ms Beer stated that the additional responsibilities being assigned to the Claimant could be added to his existing job description (at [456] of the Bundle)[180]This was all taking place in the context of the proposal of 7 April 2022 being on an interim basis, which was motivated by the Respondent’s concerns for the Claimant’s health and well-being. It was in line with the provisions within the Claimant’s contract, as reflected both in the meeting itself and Ms Beers’ email of 12 April 2022, which included the following answer to a question posed by the Claimant (at [456] of the Bundle): Why is my role (or duties as it is being referred to) being changed? To help with your adjustment back into the business after a period of absence and to fit the business needs.[181]For those reason, the fact that the Claimant was not provided with a new job description in respect of the proposed changes to his responsibilities (on an interim basis) was not a breach of either the implied or express terms of his contract of employment. Tell the Claimant, in the back to work meeting, even though the Claimant didn’t accept the change, that the new role would comprise 4/5 responsibilities across the business but in reality there was only one responsibility.[182]The Tribunal understood the reference to responsibilities to be based upon Ms Beer’s email of 8 April 2022, referred to above, which cited a change to some of the Claimant’s duties, before listing five such duties (at [442] of the Bundle).[183]Again, this was in the context of an interim proposal, designed to ease the Claimant back into his role after a period of stress-related sick leave and the disclosure that he was diagnosed with ADHD. It was clear that the Respondent was attributing duties and responsibilities to the Claimant, albeit he did not agree with the proposal and perceived the reasons for it (his removal from the business) in very different terms to the aims and objectives which underpinned the back to work proposals (the Claimant’s heath and well-being).[184]As such, we were unable to conclude that the Respondent misled the Claimant about the proposed interim changes or sought to renege on what was being proposed. The proposals, the reasons for them and the manner in which they were put to the Claimant did not constitute a breach of the terms of his employment contract. Remove the Claimant’s sales team from him.[185]The Respondent did not remove the Claimant’s sales team from him. As was clear from the evidence, Mr Lauderdale had managed the Claimant’s team in his absence and continued to do so on an interim basis as part of the Claimant’s return to work proposal. That was clearly evidenced by the return to work meeting itself and Mr Lauderdale’s email of 11 April 2022, welcoming the Claimant back and asking the team to continue to report to him in the interim (at [444] of the Bundle).[186]It was, in our judgment, simply not right to characterise those interim measures as removing the Claimant’s team from him. This was another example of the Claimant’s belief or perception being at odds with the evidence and the reality of the situation.[187]As the Claimant’s team was not removed from him, as alleged or at all, there was no breach of contract arising from the allegation. Not give the Claimant a pay rise. The Claimant says the low appraisal mark was done to avoid giving the Claimant a pay rise.[188]As we have found and set out in detail, above, the appraisal marks awarded by Mr MacKillop were open to him and reflected his considered and informed view. He explained his reasoning to the Claimant and the marks were squarely based on the Claimant’s performance. There was no ulterior motive to the performance review.[189]A consequence of the performance review may have been that the Claimant did not receive a bonus or pay rise, either at all or to the level he wanted. But that was not why he was marked as he was in the review. The Claimant was confusing the consequence with the cause. The cause was his performance, as assessed by Mr MacKillop and, as we have detailed, there was nothing flawed, unfair or suspicious about Mr MacKillop’s review of the Claimant’s performance.[190]In addition, we reminded ourselves that the Claimant had been awarded both a pay rise and bonus in November 2021.[191]If the Claimant did not receive any further pay rises or bonus, it was because his performance, as assessed by Mr MacKillop, did not warrant it. That was not in any sense a breach of the Claimant’s contract of employment. In relation to any non-payment of bonus. Did that breach a specific term of contract?[192]We repeat our findings and analysis above regarding bonus payments.[193]The Respondent’s evidence was that the payment of bonuses was discretionary and was informed by performance. The Tribunal was not taken to any term of the Claimant’s contracts of employment which challenged that. We had no basis not to accept that bonuses were paid at the Respondent’s discretion, were primarily informed by performance and were not the subject of a specific term of the Claimant’s contract of employment.[194]It followed that the non-payment of any bonus was not a breach of any express term of the Claimant’s contract. Conclusions: Unfair Dismissal[195]For all the reasons set out above, the Respondent did not breach the Claimant’s contract of employment, individually or cumulatively, whether fundamentally or at all. There was no breach of the implied term of mutual trust and confidence and no breaches of any other term of the Claimant’s employment contract.[196]It followed that the Claimant was not permitted to treat his employment contract as repudiated and his resignation on 19 July 2022 was not, in law a dismissal. It was a resignation.[197]As the Claimant was not dismissed, his complaint of unfair dismissal cannot succeed and is dismissed. Direct disability discrimination[198]As we found, in respect of the Claimant’s discrimination complaints: 198.1. The Respondent was not aware during his employment that the Claimant wad disabled by reason of stress and anxiety; and 198.2. The Respondent did not have knowledge that the Claimant was disabled by reason of ADHD until March 2022.[199]The Claimant relied upon eight allegations of less favourable treatment, which we considered in turn (taken from the List of Issues and in italics, below). Make the Claimant do a desk job that was difficult for him due to his disabilities.[200]This was a reference to the interim return to work proposals, arising from the meeting of 7 April 2022. The first point to reiterate is that the Respondent was making proposals aimed at assisting the Claimant back into the workplace after a lengthy period of absence due to stress and ADHD and those proposals were on an interim basis.[201]In the meeting on 7 April 2022, Mr Lauderdale reassured the Claimant that the interim adjustments, while involving some administrative work, would still include work in the field (including regular meetings with account managers, wholesalers and businessmen, as well as crisis and business reviews, at [423] of the Bundle). Mr Lauderdale also explored adding training into the interim role, which would, in his words, get the Claimant “more out and about” (at [424]).[202]In her email of 12 April 2022, Ms Beer similarly confirmed that some of the Claimant’s revised, interim duties would be out in the field (at [456] of the Bundle).[203]It was not entirely clear what the Claimant meant by “a desk job”. It appeared, in our judgment, to be a reference to administrative tasks and paperwork, as opposed to meetings, particularly in the field. As found, the Claimant had previously raised issues with administrative tasks. However, there were clear assurances from both Mr Lauderdale and Ms Beer that the proposed interim duties would include a mix of field work and meetings (and possibly training), in addition to administrative tasks.[204]For those reasons, we concluded that the Respondent did not make the Claimant do a desk job as alleged and there was no less favourable treatment. Not send the Claimant to Occupational Health.[205]It was not in dispute that the Respondent did not refer the Claimant to occupational health (‘OH’). However, the context was important. During the return to work meeting on 7 April 2022, the Claimant was asked several times what support he required regarding his ADHD and consistently informed the Respondent that no support was required, as he was managing his conditions himself via a range of strategies (see, for example, at [409] of the Bundle).[206]As such, the reason that the Claimant was not referred to OH was because he was informing the Respondent that he was coping and did not require any adjustments or support. The Claimant gave the Respondent no reasonable basis to make a referral.[207]For those reasons, we concluded that not referring the Claimant to OH was not less favourable treatment. Not seek guidance on the Claimant’s conditions of ADHD, stress, anxiety or depression.[208]The Tribunal reminded itself that the Respondent was only made aware that the Claimant had a ADHD in March 2022 (when he was on sick leave). Immediately upon his return to work, the Claimant met with Mr Lauderdale and Ms Beer and was asked about his condition and what support could be provided for him. As noted above, the Claimant was clear that he did not require support and was managing his condition himself.[209]It was also evident from that meeting that the Respondent (via Mr Lauderdale and Ms Beer) was treating the Claimant’s health and welfare as a priority and seeking to understand how the ADHD impacted upon him. But we again returned to what the Claimant was consistently reporting, namely that he was managing his condition, he did not need any support or assistance and did not want a phased return to work.[210]Any failure on the part of the Respondent not to seek external guidance on ADHD must be considered in that context. The Claimant was not asking for support, was providing the Respondent with information about his condition, how it affected him and how he managed it and did not require any external input, guidance or advice. In those circumstances, there was nothing unreasonable or unfavourable in the Respondent not endeavouring to obtain further or more detailed guidance at that stage on ADHD.[211]For the reasons detailed above, the Tribunal did not find that the Respondent was on notice that the Claimant was disabled by way of stress, anxiety and depression. In any event, the Respondent’s approach to, and conduct in, the return to work meeting on 7 April 2022 showed an awareness of the issues of stress, anxiety and depression in the workplace. The Respondent was seeking to manage the Claimant’s return to work in order to protect his health and welfare and mindful of the reasons for his lengthy sickness absence. We were, yet again, reminded of what the Claimant was telling the Respondent in that meeting, about his ability to cope and his desire to return to work on a full-time basis.[212]For all those reasons, there was no less favourable treatment of the Claimant. Fail to train his line manager on ADHD.[213]Mr MacKillop (as the Claimant’s line manager) confirmed in his oral evidence that he had never been trained on ADHD, because, prior to March 2022, he had never knowingly managed anyone with ADHD. The Claimant returned to work on 7 April 2022 and resigned on 19 July 2022. If it was being suggested that training should have been arranged for Mr MacKillop within that period, we did not find it reasonable to expect that to happen (or for the Respondent to have arranged training in the past for managers on ADHD at a time when no one in its organisation was reporting that they had the condition).[214]In addition, and again, this was also being considered in the context of the Claimant clearly stating in the meeting on 7 April 2022 that he did not require any support and was managing his ADHD symptoms himself.[215]Any failure to train managers as alleged by the Claimant had nothing to do with the Claimant’s own diagnosis but was a result of the Respondent only being made aware of the same in March 2022, the short time frame between then and the Claimant’s resignation and the consistent message being provided by the Claimant that he was quite capable of managing his symptoms without support for the Respondent.[216]For those reasons, the lack of ADHD training was not unreasonable or, importantly, less favourable treatment. Ostracise the Claimant.[217]The allegation, for all the reasons detailed above, was not made out. There was clear and extensive evidence of the Respondent being supportive and positive toward the Claimant, prior to his sickness absence in March 2022 and there was simply no evidence that those attitudes changed upon his return to work on 7 April 2022 (by which time, the Respondent was aware that he was disabled by way of ADHD). The return to work meeting and the subsequent communications and actions by the Respondent continued to be supportive, positive and inclusive.[218]In addition, the Respondent maintained its supportive and inclusive approach when it addressed the Claimant’s concerns, both informally and formally, by way of its grievance procedure (even inviting the Claimant to reconsider his resignation).[219]There was no ostracization and, by extension, no less favourable treatment. What was evident was a perception by the Claimant that he was being ostracised but as the evidence amply demonstrated, that perception was erroneous and misplaced. Fail to treat the Claimant’s resignation letter as an appeal to his grievance.[220]The allegation can be dealt with in short order. The Claimant’s resignation email of 19 July 2022 included the following (at [564] of the Bundle): I will also be submitting my appeal to the grievance by Friday's deadline and then proceeding (as I have no confidence in the appeal process based on the initial "report") with the next steps.[221]On 21 July 2022, the Claimant submitted his grievance appeal letter (at [569] - [572] of the Bundle).[222]The Respondent did not treat the Claimant’s resignation letter as his appeal against the grievance outcome because the Claimant did not ask it to. Instead, the Claimant gave notice that he would appeal (at [564] of the Bundle) and he then did appeal (at [569]).[223]The allegation was wholly misplaced and ignored the clear evidence. There was no failure as alleged and, as a result, no less favourable treatment. Not try and convince the Claimant to remain at the Respondent.[224]The allegation similarly ignored the clear and uncontentious evidence. On 19 August 2022, Ms Beer asked if the Claimant would like to reconsider his resignation (at [614] of the Bundle).[225]In his oral evidence, the Claimant suggested that the Respondent could have done more. In our judgment, such a contention was misconceived. The Respondent had waited six weeks before accepting the Claimant’s resignation, during which time it concluded the grievance process. It was under no obligation to do so. It then gave the Claimant the opportunity to reconsider his resignation (a resignation which had been made in clear and stark terms). It was under no obligation to do so. The Claimant was, in response, unequivocal in his refusal to reconsider (at [614] of the Bundle).[226]In one sense, the Claimant wanted it both ways. He claimed that the Respondent wanted to get rid of him (to manage him out of the business, as he termed it) and had been set on that course from October 2021 but when it asked him to reconsider his decision to resign, he refused. He then claimed that the Respondent should have tried harder to convince him to stay, which appeared at odds with his own hypothesis that his card had been marked from October 2021 and everything that occurred thereafter was designed to remove him from the business.[227]Either way, the Respondent acted more than reasonably in its attempts to retain the Claimant, even after he had tendered his resignation. There was no unfavourable or less favourable treatment in how it managed and reacted to the Claimant’s resignation. Pay the Claimant statutory sick pay only (when others were paid more).[228]Under the terms of the Claimant’s contract, he was entitled annually to 10 sick days at full pay (on the basis that he had accrued at least five years service). Thereafter, he would receive statutory sick pay (‘SSP’) with a discretion for the Respondent to pay more than that (per [246] – [247] of the Bundle).[229]It was not in dispute that those were the contractual terms that applied to the Claimant or that, during his sick leave in March 2022, the Claimant exhausted his 10 day full pay entitlement and reverted to SSP for the remainder of his absence.[230]The Claimant’s case, in this regard, was that he was treated less favourably than Mr Littlefair. It was averred by the Respondent that Mr Littlefair was not an appropriate comparator. He had been on sick leave whilst furloughed. As a result, 80% of Mr Littlefair’s wages were being paid under the scheme, which explained the difference in remuneration compared to the Claimant’s sick leave of March 2022.[231]The Claimant also alleged that the Respondent should have exercised its discretion and paid him more than SSP. The Respondent had the power to do so but chose not to. There was nothing in the evidence to suggest that its reasons for so doing was because the Claimant had ADHD. The Claimant did not contend that the Respondent exercised that discretion for anyone else (and as explained above, any reference to Mr Littlefair as a comparator was misplaced). It was a discretion and the Respondent chose not to exercise it.[232]For those reasons, the payment of SSP was not less favourable treatment because the Claimant was disabled by reason of ADHD, or at all. Conclusions: direct disability discrimination[233]For all those reason, we found that that the alleged treatments were either not made out or, if they were, did not constitute less favourable treatment, whether by reason of the Claimant’s ADHD or otherwise.[234]It followed that, in the absence of any less favourable treatment, the complaints of direct disability discrimination were not made out and are dismissed. Discrimination arising from disability[235]The Claimant relied upon 13 allegations of unfavourable treatment, which we considered in turn (taken from the List of Issues and in italics, below). Some of the allegations repeat ones made earlier and, where they do, we have relied upon our earlier findings and conclusions (as indicated). Reassignment to desk based role despite the Claimant’s expressed difficulties with such a role due to my ADHD and telling the Respondent that a return to the field would help.[236]As found above (under Unfair Dismissal and Direct Disability Discrimination), it was not the case that the Claimant was reassigned to a desk-based role following his return to work on 7 April 2022. We repeat those findings in their entirety.[237]It follows that there was no unfavourable treatment, as alleged. Failure to refer to Occupational Health or a comprehensive assessment of the Claimant’s condition and recommendations for reasonable adjustments.[238]As found above (under Direct Disability Discrimination), there was no failure on the part of the Respondent to refer the Claimant to OH, given what he was telling them at the return to work meeting on 7 April 2022. We repeat those findings in their entirety.[239]It follows that there was no unfavourable treatment, as alleged. Lack of guidance and training - failure to seek guidance about the Claimant’s ADHD, Stress, Anxiety and provide training to the line manager to understand and support the Claimant better.[240]As found above (under Direct Disability Discrimination), there was no failure on the part of the Respondent to seek guidance or provide training, given what the Claimant was reporting at the return to work meeting on 7 April 2022, the information which was sought and obtained by the Respondent during that meeting (about the Claimant’s health and its impact upon him) and the time frames between the return to work and his resignation. We repeat those findings in their entirety.[241]It follows that there was no unfavourable treatment, as alleged. Removal of sales team - the decision to remove the Claimant’s sales team which impacted his ability to perform in my role and earn bonuses.[242]As found above (under Unfair Dismissal), the Claimant’s sales team was not removed from him. Rather, the interim arrangement, whereby Mr Lauderdale was managing the team during the Claimant’s sickness absence, was continued in the short term, as a way of assisting and supporting the Claimant back into the workplace. We repeat those findings in their entirety.[243]It follows that there was no unfavourable treatment, as alleged. Made belittling comments and minimised the Claimant’s ADHD on the RTW forms.[244]A return to work interview form was completed on 12 April 2022 by Ms Beer, following the Claimant’s meeting with Mr Lauderdale and Ms Beer on 7 April 2022 (at [458] – [459] of the Bundle). The form recorded, amongst other things, the following: 5. Ask if there is anything you, as an employer, can do to help? Are there any reasonable adjustments to the workplace or role that could be considered? No reasonable adjustments required for ADHD or stress. Offered a phased return of 20 hours per week.[245]The completed form was sent to the Claimant on the same day (at [455]).[246]On 13 April 2022, the Claimant emailed Ms Beer regarding a number of issues, including the following in respect of the return to work form (at [454 of the Bundle): With reference to you writing on the form that I don’t need any workplace adjustments; I did not say that or agree to that. In fact, we discussed at length my needs and concerns and I put forward proposals that will help that have not been captured.[247]Ms Beer responded the following day, explained that it was a standard form and asked the Claimant “to confirm what workplace adjustments you require, and we can take them into consideration” (at [454] of the Bundle).[248]It was not in dispute that the Claimant never responded to the request. In his grievance appeal hearing on 3 August 2022 with Mr Motley, he provided an explanation (at [609] of the Bundle): And she [Ms Beer] said, what help do you need. And I ignored that thing cause I was like, I have told you once, I am not giving you an opportunity to get yourself out of this. I have had a conversation with you already if you are not going to listen and if you are not going to take notes. I have made an effort driving down to Windsor to talk to you about it.[249]When this was put to the Claimant in cross-examination, he accepted that “it was a bit petulant of me.”[250]There was no evidence of the Respondent making belittling comments or minimising the Claimant’s ADHD, on the return to work form or elsewhere. Rather, the Respondent had understood the Claimant as not seeking any reasonable adjustments and when the Claimant challenged this, he was invited to provide further details. He refused to do so, in circumstances which were consistent with his own negative perceptions of the Respondent, perceptions which, for all the reasons detailed above, were misplaced, unreasonable and erroneous.[251]Indeed, in his oral evidence, the Claimant was asked by the Tribunal to identify, from the transcript of the return to work meeting, the reasonable adjustments and support he was requesting. He referred us to his comments at 48:41 of the transcript (at [414] of the Bundle), wherein he explained that he was able to return full time (which he did), detailed a number of tasks and responsibilities he felt able to perform, that he wanted to get out and about with his team and referred to the issues he had with administrative tasks. Considering that passage, as well as the transcript as a whole, the Tribunal had some sympathy for the Respondent. It was far from clear what, if anything, the Claimant was seeking as an adjustment, reasonable or otherwise, because of his ADHD.[252]At its highest, there was a lack of clarity between the Claimant and the Respondent at that meeting. When the Claimant was given the opportunity to restate the reasonable adjustments he sought, he failed to do so. That was his prerogative and he subsequently explained in the grievance appeal his motivation. However, there was no unfavourable treatment by the Respondent in respect of the return to work form or the subsequent email exchange between the Claimant and Ms Beer. Imposing a phased return when the Claimant believed he was fit for a full-time return.[253]As we have detailed in our findings, there was no phased return to work. At most, it was an interim proposal that the Claimant return initially at 20 hours per week. The Claimant rejected that proposal and returned on a full time basis.[254]Not only was there no phased return to work, there was no imposition of a phased return to work. Quite the opposite – it was proposed, the Claimant refused and his refusal was respected and implemented.[255]As the allegation was not made out, there was no unfavourable treatment Pay and Bonus - the decision to not provide the Claimant with a pay rise, despite positive performance and withholding bonus payments.[256]We repeat our findings and conclusions on the payment of a bonus, above (under Unfair Dismissal). The Claimant received a bonus and pay rise in November 2021. He had a performance review in February 2022, which raised legitimate and reasonable concerns about his performance. This was before the Respondent was on notice that the Claimant was disabled by way of ADHD. The Respondent was entitled to link any further pay rise and bonus payments to the Claimant’s performance. We reminded ourselves that the payment of bonuses and increase in salary were at the discretion of the Respondent.[257]If the decisions on pay continued post-March 2022 (when the Respondent was on notice of the Claimant’s ADHD), the reasons for them were clear, evidenced and reasonably open to the Respondent. They were informed by the Claimant’s performance, as assessed by Mr MacKillop in February 2022. They had nothing to do with the Claimant’s disclosure that he was disabled by reason of ADHD.[258]To the extent that not awarding the Claimant another pay rise and not paying him another bonus (after November 2021) constituted unfavourable treatment, it was because of the Claimant’s performance, as evidenced by the February 2022 performance review, not the disclosure of his ADHD diagnosis. Exclusion from meetings and communications - being excluded from team meetings, WhatsApp groups and important presentations and discussions which affected his ability to stay informed and contribute.[259]As found above (under Unfair Dismissal and Direct Disability Discrimination), the Claimant was not ostracised or excluded. We repeat those findings in their entirety.[260]It follows that there was no unfavourable treatment, as alleged. Lack of consultation and communication - the lack of meaningful consultation and communication regarding the role changes, job objectives and performance-related matters.[261]The reference to performance-related matters can only reasonably have been a reference to the February 2022 review conducted by Mr MacKillop. We repeat our findings as to the impartiality and objectiveness of that review. In addition, it pre-dated the Respondent’s knowledge of the Claimant’s ADHD. To the extent that it constituted unfavourable treatment, it clearly cannot have been motivated by the Claimant’s disability.[262]Similarly, the alleged changes to the Claimant’s role in January 2022 (when the regions he was responsible for were changed) also pre-dated the Respondent’s knowledge of the Claimant’s ADHD and, by definition, could not have been motivated or informed by his disability (quite apart from the fact that the Tribunal did not find the changes to the Claimant’s role in January 2022 to have been in breach of his contract of employment).[263]The April 2022 proposals were on an interim basis and informed by concerns about the Claimant’s health and well-being. They were aimed, as we have found, at avoiding overloading the Claimant on his return from a prolonged absence, given his diagnoses. There was extensive communication and consultation with the Claimant (both during the lengthy return to work meeting, in subsequent email exchanges with Ms Beer and a further meeting with Mr Lauderdale).[264]As such, there was no lack of communication or consultation, as alleged and, by extension, no unfavourable treatment. Failure to consider ADHD in role allocation - not considering the Claimant’s ADHD when allocating roles and responsibilities, especially the reassignment to a deskbased role.[265]We repeat our findings above. The Claimant was not allocated or reassigned to a desk job when he returned for his sickness absence on 7 April 2022.[266]It was also not the case that the Respondent failed to consider or have regard to the Claimant’s ADHD upon his return to work. In reality, the opposite was true. As detailed above, Mr Lauderdale and Ms Beer were very mindful of the Claimant’s diagnosis and sought to prioritise his health and welfare. They were engaged and receptive to the Claimant’s circumstances and what he was telling them about his condition and its symptoms.[267]As such, there was no failure to consider the Claimant’s ADHD, either upon his return to work or thereafter. It followed that there was no unfavourable treatment. Failure to address stress concerns - not addressing the Claimant’s stress concerns, failing to conduct a stress at work risk assessment and not obtaining occupational health advice.[268]As detailed above, the Respondent was never on notice that the Claimant was disabled by reason of stress (as his email of 24 January 2022 contained insufficient information, specifically as to the long-term nature of the impairments). It follows that the Respondent could not be liable for any unfavourable treatment arising out of a condition of which it was not aware or had insufficient knowledge was a disability.[269]In any event, the return to work meeting on 7 April 2022 was all about managing the Claimant’s stress levels and avoiding overwhelming him after he had been on sick leave for a month. This was also in the context of the Claimant repeatedly telling Mr Lauderdale and Ms Beer that he did not require support with his ADHD and was able to manage his various symptoms.[270]On that basis, there was no unfavourable treatment in not conducting a stress at work risk assessment or referring the Claimant to OH. The Claimant never requested such an assessment or such a referral at the time and given what he was telling the Respondent, it was not unreasonable for the Respondent to not make the OH referral or undertake the risk assessment. Inadequate review and assessment - failing to undertake a comprehensive review and assessment of the Claimant’s conditions and how they impacted on his work.[271]The Tribunal was unclear what this complaint referred to (and it was not expanded upon in Ms Johns’ submissions).[272]However, given what the Claimant was telling the Respondent upon his return to work on 7 April 2022, given what the Respondent proposed in the return to work meeting and thereafter, and given how support was offered to the Claimant, both upon his return to work and subsequently, we were unable to conclude that there was an inadequate review or assessment of the Claimant’s health and welfare or its impact upon his work.[273]For those reasons, there was no unfavourable treatment. Failed to address concerns raised about a conflict of interest concerns - raising concerns about a potential conflict of interest involving Peninsula representing the matter.[274]The allegation related to the appointment of Ms Phillips, a consultant with Peninsula, to conduct the Claimant’s grievance. She was appointed because of the Claimant’s understandable objections to Ms Beer being involved in the grievance process. The Claimant did not raise concerns at the time regarding Ms Phillips’ being conflicted or not being impartial.[275]Once he received Ms Phillips’ decision on his grievance, the Claimant exercised his right of appeal. Ms Phillips’ impartiality was not one of his grounds of appeal.[276]As such, it appeared that this was a concern which the Claimant raised in hindsight, presumably because of Peninsula’s involvement in this litigation (as the Respondent’s legal representatives).[277]However, and far more importantly, on our reading of Ms Phillips’ grievance outcome report, there was nothing to support an allegation that she was biased, partial or conflicted. What was evident was the extent and nature of her investigations, the transparency of her processes, the reasons she provided for her conclusions and that her conclusions were eminently open to her on the evidence presented.[278]That impartial, open and fair approach was then reinforced by affording the Claimant a right of appeal and allocating his appeal to Mr Motley, who had no previous involvement in the case.[279]For all those reasons, whatever concerns the Claimant might have about Peninsula’s role in the grievance process, they were misplaced and, importantly, did not reveal any unfavourable treatment.[280]To the extent that refusing to uphold the Claimant’s grievance was unfavourable treatment, there was no evidence at all to infer that those decisions had anything to do with the Claimant’s ADHD. In contrast, there was plenty of evidence that, as noted in our findings and above, the process was fair, open and based upon the evidence gathered, following proper investigations. Things arising in consequence of disability[281]The Claimant, in the List of Issues, alleged that the following arose in consequence of his disability (at Paragraph 7.2.1, Appendix 1): The Claimant’s absence from work due to disability (ADHD, stress, anxiety and depression). The dates of disability-related absence being 24 - 29 January 2022, 15 - 18 February 2022 and 9 March - 6 April 2022[282]The Tribunal was unable to find that the Claimant’s absences in January and February 2022 were related to his disability. There was no evidence that the Claimant was absent because of ADHD or, if he was, it was not in dispute that the Respondent did not have knowledge of the Claimant’s disability until 16 March 2022.[283]In addition, and for the reasons set out above, we found that the Respondent did not have the requisite knowledge that the Claimant was disabled by reason of stress, anxiety or depression at any time during his employment.[284]In contrast, the Claimant’s absence from 9 March to 6 April 2022 did arise in consequence of his disability. Conclusions: discrimination arising from disability[285]The Claimant was disabled by reason of ADHD. A consequence of his disability was his sickness absence during March 2022.[286]However, for the reasons above, the Respondent did not subject the Claimant to any unfavourable treatment or, if it did, it was not because of anything arising from the Claimant’s ADHD.[287]For those reasons, the complaints of discrimination arising from disability were not made out and are dismissed. Reasonable Adjustments[288]The Respondent accepted that it was aware that the Claimant had ADHD from 16 March 2022 and that the same amounted to a disability.[289]The Claimant relied upon four alleged PCPs, which we considered in turn (taken from the List of Issues and in italics, below). Some of the allegations repeat ones made earlier and, where they do, we have relied upon our earlier findings and conclusions (as indicated). The Respondent applied a practice of not sending staff to Occupational Health when they had a health condition.[290]The Claimant complained, as detailed above, that the Respondent should have referred him to OH and its failure do so were acts of both direct disability discrimination and discrimination arising from disability. For the reasons set out above, those complaints were not made out.[291]The Claimant contended that the failure to refer him to OH was consistent with, and evidence of, a PCP being applied to him by the Resppndent. Whilst a oneoff act (or omission) is capable of being a PCP, that was not, in our judgment, the case here. As we found, the reason the Respondent did not refer the Claimant to OH was because of what it was being told by the Claimant at the return to work meeting on 7 April 2022. He did nothing to dissuade the Respondent of that position (namely, that he did not require any support or adjustments regarding his diagnosis of ADHD and was capable of coping with his health conditions).[292]On the one occasion that the Claimant specifically referred to reasonable adjustments (in his email of 13 April 2022), he was asked for more details from Ms Beer, to which the Claimant refused to reply. At not time following his return to work did the Claimant ever ask to be referred to OH.[293]As such, there was no reasonable basis with which the Respondent was under any obligation or responsibility to refer the Claimant to OH. Indeed, the nonreferral of the Claimant to OH could not be characterised as a failure by the Respondent. It was not being given information by the Claimant that required it to consider a referral.[294]In her oral evidence, Ms Beer said that whilst working for the Respondent, she had never referred an employee to OH. However, that was not, in our judgment, sufficient proof that a PCP as contended for was in operation, still less that it was applied to the Claimant (given the finings and analysis, above, regarding the context of not referring the Claimant to OH). We were given no further details or context for Ms Beer’s admission. There may genuinely have been no requirement to make any referrals during Ms Beer’s time with the Respondent. No employees may ever have given Ms Beer reasonable cause to make a referral. Ms Beer may have erroneously overlooked employees who should have been referred. We did not know but what we were unable to extrapolate from Ms Beer’s evidence was that the Respondent had a PCP of not sending employees to OH when they had a health condition.[295]The Claimant’s non-referral to OH was not, therefore, sufficient evidence of a PCP being operated or applied to the Claimant, as contended. As there was no PCP, there was no substantial disadvantage to the Claimant. The Respondent applied a practice of not seeking guidance on employees’ health conditions from the employee and/or external sources of help.[296]The Claimant complained, as detailed above , that the Respondent failed to seek advice and guidance on his health condition and that failure was an act of both direct disability discrimination and discrimination arising from disability. For the reasons set out above, those complaints were not made out.[297]In a similar vein to the non-referral to OH, the Claimant contended that the failure to seek advice and guidance was consistent with and evidence of a PCP being applied to him by the Resppndent. However, as we found and concluded under the other heads of discrimination, the Respondent did seek guidance from the Claimant regarding his health and how it impacted upon (both at the return work meeting on 7 April 202 and thereafter).[298]In addition, we repeat our findings above, namely that any failure on the part of the Respondent to seek external guidance on ADHD must be considered in that context. The Claimant was not asking for support, was providing the Respondent with information about his condition, how it affected him and how he managed it and did not require or request any external input, guidance or advice. In those circumstances, there was no reasonable basis for the Respondent to seek external sources of guidance.[299]Those were the reasons for not seeking external advice. They were informed solely by what the Claimant was saying and reporting. They were not indicative of a wider PCP either existing or being applied to the Claimant.[300]In part, the alleged PCP was factually inaccurate. The Respondent did seek guidance from the Claimant on his health conditions. What remained was not sufficient evidence of a PCP being operated or applied to the Claimant, as contended. As there was no PCP, there was no substantial disadvantage to the Claimant. The Respondent applied a practice of expecting managers to manage disabled employees without specific transiting on the employee’s disability.[301]The Claimant complained, as detailed above, that the Respondent failed to train line managers (specifically Mr MacKillop) on the Claimant’s health conditions and that those failures were acts of both direct disability discrimination and discrimination arising from disability. For the reasons set out above, those complaints were not made out.[302]As with the preceding alleged PCPs, the Claimant contended that the failure to train line managers was consistent with and evidence of a PCP being applied to him by the Respondent. However, as we found and concluded under the other heads of discrimination, the context was again paramount. The Respondent only ever had knowledge that the Claimant was disabled by reason of ADHD and did not acquire such knowledge until mid-March 2022. Mr MacKillop’s evidence was clear. He had never knowingly managed anyone with ADHD before and, as such, had up to that point not been referred for any training. For the reasons we detailed above, it was not reasonable for the Respondent to have arranged such training for Mr MacKillop, give that the Claimant resigned in July 2022. This was also against the background of the Claimant clearly and repeatedly informing the Respondent upon his return to work that he did not require support and was managing the condition himself.[303]Those were the reasons for not seeking training for managers. They were informed by what the Claimant was saying and reporting. They were not indicative of a wider PCP either existing or being applied to the Claimant.[304]In addition, even if the Claimant had remained in the Respondent’s employment or if it had had previous employees with ADHD, there was no automatic requirement that those managing such employees are required to receive additional training.[305]The fact that training was not arranged was not sufficient evidence of a PCP being operated or applied to the Claimant, as contended. As there was no PCP, there was no substantial disadvantage to the Claimant. The Respondent required managers to work 3 days in the field and 2 days at a desk carrying out administrative work per week.[306]Key to the role of an RSM was to coach and develop members of the RSM’s team (per the core competencies document, specifically at [252] of the Bundle). To achieve that, it was envisaged and expected that RSMs would “spend 60% of your available time working in the field conducting field visits with representatives” (at [254]).[307]When the Claimant was awarded his pay rise in November 2021, Ms Beer’s letter to him confirming the same included the following (at [263] of the Bundle): I would like to set out clear guidelines and parameters of what is expected in your role of Regional Sales Manager, South.• Spend at least 60% of working week (3 days) on Field Visits aimed at coaching and developing individuals' skills. This is applicable in t he interim posit ion to all fieldbased employees. …[308]The 2022 Smarter Objective Form repeated the coaching requirement of a minimum of 60% (three days per week) in the field (at [264] – [265] of the Bundle).[309]As such, we found that, in respect of RSMs, there was a PCP that they spend a minimum of 60% of their time in the field. It was also evident that the PCP was applied to the Claimant, at least until his sickness absence in March 2022. We reminded ourselves that, until 16 March 2022, the Respondent was not aware (and could not have been reasonably aware) that the Claimant was disabled by reason of ADHD or that the PCP could have placed the Claimant at any disadvantage because of his ADHD.[310]Once the Respondent was made aware of the Claimant’s disability, it did not apply this PCP to him. Instead, and as detailed extensively above, the Respondent proposed interim changes in the Claimant’s role as part of a planned return to work, mindful of the time he had been absent due to ill-health (which included stress) and the new information that he had ADHD. The Respondent was not applying the same metric to the Claimant once he returned from sick leave. Rather, it explored finding a better initial balance of field work, office-based tasks and training (as proposed by Mr Lauderdale), all of which was informed by the Claimant’s health and with the aim of not overwhelming him and enabling him to build back up to the tasks and roles he was undertaking prior to his sickness absence.[311]For the period when the Respondent had knowledge that the Claimant was disabled (namely March 2022 until he was placed on garden leave on 25 August 2022), the Respondent did not apply this PCP to him. It followed that, as it was not applied to him, it caused the Claimant no substantial disadvantage. Conclusions; reasonable adjustments[312]Three of the four alleged PCPs were not, for the reasons set out above, PCPs.[313]The one which was a PCP was not applied to the Claimant once the Respondent had knowledge that he was disabled by reason of ADHD. Instead, the Respondent explored and applied variations to the Claimant’s role on an interim basis. The Claimant’s employment never progressed beyond that interim phase, as he tendered his resignation and was subsequently placed on garden leave.[314]For those reason, the Tribunal concluded that no disadvantages, substantial or otherwise, were caused to the Claimant by reasons of the actual or alleged PCPs. It followed that there was no breach by the Respondent of the duty to make reasonable adjustments and the complaints are dismissed.[315]The Claimant alleged that the Respondent did not pay him a bonus of £15,000 which he claimed was payable to him in February/March 2022 (per Paragraph 9.2.1 of the List of Issues, at Appendix 1).[316]It was not in dispute that, whilst the Claimant was paid a bonus in November 2021, he was not paid any bonus in either February or March 2022.[317]In terms, the allegation was a repetition of the alleged breach of contract relied upon by the Claimant as part of his complaint of constructive unfair dismissal. We re-state our findings and analysis. The payment of bonuses was discretionary. Their payment was linked to performance. Mr MacKillop reviewed the Claimant’s performance in February 2022. That review was evidenced and reasoned and its findings reasonably open to Mr MacKillop. The review highlighted issues with the Claimant’s performance (as reflected in the comments made and scores awarded).[318]To the extent that the review informed the Claimant’s entitlement to a bonus, there was no breach of contract. The Respondent was entitled to operate a performance-related bonus scheme and if the Claimant’s performance, as assessed by Mr MacKillop, did not qualify him for a full bonus, there was nothing unlawful or unreasonable in that.[319]For those reasons, not paying the Claimant a bonus of £15,000 in February/March 2022 was not a breach of his contract of employment and the complaint is dismissed. Time limits[320]By virtue of the EqA 2010, complaints of discrimination must be presented to the Tribunal within three months of the alleged act of discrimination occurring (subject to the effects of the ACAS Early Conciliation process which, if started within the three month time limit, serves to stop the clock for the duration of the Early Conciliation and/or extend the time limit by a month, if the three month time limit expires during Early Conciliation). Whether or not complaints have been brought in time goes to the Tribunal’s power to be able to consider and determine them, otherwise known as it’s jurisdiction.[321]The Claimant began ACAS Early Conciliation on 30 August 2022 and it ended on 11 October 2022. He presented his claim to the Tribunal on 14 October 2022. On that basis, and applying the applicable time limits, anything occurring before 30 May 2022 was out of time.[322]The complaints of constructive unfair dismissal and breach of contract (regarding the bonus payment) were presented in time (that is, within three months of the effective date of termination of the Claimant’s employment, allowing for ACAS Early Conciliation).[323]In respect of the discrimination complaints, the Claimant would need to either show that any acts pre-dating 30 May 2022 were part of a continuing act of discrimination, the last act of which fell in time (in which case all complaints in the continuum are deemed to have been brought in time) or ask the Tribunal to exercise its discretion under the EqA 2010 to extend time.[324]It was submitted on his behalf that the allegations of discrimination were part of a continuing act, the last of which fell in time. As we have noted above, it was certainly the Claimant’s belief that, from October 2021, the Respondent wanted him out of the business (albeit his belief was misplaced). In his mind, the Respondent discriminated against him when it became aware that he was disabled by way of ADHD, to further its plan to ostracise him and drive him out. Again, for the reasons detailed above, the Claimant was wrong in that belief and perception.[325]Whether the complaints formed part of a continuing act was academic. There was no less favourable or unfavourable treatment because the Claimant was disabled. The Claimant was not subjected to disadvantage by reason of any PCPs. There were no acts of discrimination, so there cannot have been any continuing acts. It followed that those allegations which occurred before 30 May 2022 remained out of time.[326]In the alternative, the Claimant relied upon the Tribunal’s power to extend time, where the complaints had been presented within a period which was, in all the circumstances, just and equitable. It was submitted that the Respondent was made aware of the Claimant’s complaints of discrimination in his grievance of 3 May 2022. That same grievance was submitted as the Claimant’s particulars of claim, which accompanied his ET1 of 19 October 2022 (at [19] – [25] of the Bundle). On that basis, it was argued that no prejudice was caused to the Respondent of allowing the out of time complaints to proceed.[327]The Respondent relied upon the same grievance letter of 3 May 2022 to make the point that the Claimant had sought and obtained legal advice at that time (the grievance letter was written by legal representatives). It was therefore reasonable to assume that the Claimant was aware, from at least May 2022 of the applicable time limits for bringing proceedings in the Tribunal.[328]In our judgment, the Claimant had failed to adequately explain the reason that some of his complaints were presented out of time. In particular, there was force in the Respondent’s submission. The Claimant had taken legal advice and, in so doing, instructed his advisors on the various allegations of discrimination he complained of, including the dates he claimed they occurred. It was not suggested that his advisors had not made him aware of the applicable time limits nor was any explanation provided for why the Claimant had not acted on that advice.[329]However, the Respondent was put on reasonable notice that the Claimant intended to pursue legal action in his email of 23 August 2022. In refusing the invitation to reconsider his resignation, the Claimant informed Ms Beer that he intended to continuing pursuing “the claims/grievance” and “will now be taking the next step in the process by contacting ACAS” (at [614] of the Bundle).[330]There was force in the submission that the Respondent had been aware of the concerns, allegations and complaints of discrimination raised by the Claimant in these proceedings from at least May 2022, if not sooner.[331]Although not expressly raised in his submissions, the Tribunal was also mindful that the Claimant is disabled by way of ADHD and, but for the grievance letter and Ms Johns’ involvement in the final hearing, conducted these proceedings without legal assistance.[332]For all those reasons, we concluded that the balance of prejudice fell in favour of the Claimant. It was, in our judgment, just and equitable to extend time and allow those complaints of discrimination which were alleged to have occurred before 30 May 2022 to proceed and be determined. However, for the reasons we have given, none of the allegations and complaints were not made and all were dismissed.