Mr N Marouani v Royal Mail Group Ltd: 2301703/2022
EMPLOYMENT TRIBUNALS
Case No 2301703/2022
Between
Mr N MarouaniClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge Sudra sitting with non-legal members Mr. K.Mr. G. Mahmood (instructed by Counsel) for respondentDate 30 November 2025
REASONS
The unanimous decision of the Tribunal is that the Claimant’s complaints of,(i) Constructive unfair dismissal is not well founded and is dismissed.(ii) Discrimination arising from disability is not well founded and is dismissed.(iii) Harassment related to disability is not well founded and is dismissed.(iv) Unauthorised deduction from wages is not well founded and is dismissed. REASONS[1]Following delivery of an ex tempore judgment on 24th October 2025, these written reasons are provided upon a request from the Claimant.[2]The Claimant began Acas early conciliation on 8th February 2022 (‘Day A’) and was issued with an Acas early conciliation certificate on 9th March 2022 (‘Day B’). On 18th May 2022 the Claimant presented his ET1. The Respondent defended the claims by way of an ET3 and Grounds of Resistance on 18th July 2022.
The Issues
[3]The Claimant’s claims are for:(i) Constructive unfair dismissal (s.95(1)(c) Employment Rights Act 1996 (‘ERA’);(ii) discrimination arising from disability (s.15 Equality Act 2010 (‘EqA’));(iii) harassment related to disability (s.26 EqA); and(iv) unauthorised deduction from wages (s.13 ERA). The parties had agreed a final List of Issues which was contained within the Case Management Order of Employment Judge Fowell [36] and is as follows: ‘Time limits 53. For complaints of discrimination, as for unfair dismissal, there is a three-month time limit, but time begins to run from the last act of discrimination. 54. It appears that the last act here was the resignation itself. Under section 39 (7) Equality Act 2010 a constructive dismissal may also amount to an act of discrimination, and in such cases, time begins to run from the end of the contract, as with cases of unfair dismissal. Accordingly, the same date applies, i.e., 26 May 2022. On that basis the claim was in time, although any acts of discrimination before 21 January 2022 will potentially be out of time. 55. So, to complain about those acts, Mr Marouani must either prove that: a) the discrimination was in fact conduct extending over a period of time and ending after this last act, or b) it would be just and equitable to extend the normal time limit. That depends on all the circumstances of the case, and it will be for Mr Marouani to satisfy the Tribunal on this issue. Constructive Dismissal 56. Each contract of employment has an implied duty of trust and confidence. Mr Marouani says that the company was in breach of this duty by : a) giving him extra work on occasion by assigning him a vehicle carrying equipment as well as post b) the events of 1 October 2021, when he was again given such a vehicle, and in particular Chris Proctor swearing at him, refusing to refer him for a medical assessment and sending him home c) the conduct of the meeting on 2 October 2021 with Michael Hepworth, when he was not shown any support but given to understand that disciplinary proceedings would be taken against him and that he should simply do as Chris Proctor told him d) subjecting him to a disciplinary process, including writing to him (as stated at paragraph 41.4 of the grounds of resistance) to say that he needed to stay at home whilst signed off sick e) ignoring his written complaint about bullying and harassment which he made during the week commencing 11 October 2021 f) increasing the seriousness of the disciplinary allegations over time, which went from• failing to obey a reasonable management instruction, to• refusing to obey a reasonable management instruction to• wilful delay and attempting to drive a vehicle while unfit g) pressuring him to attend work for a meeting before receiving any medical advice h) the volume of correspondence sent to him during the disciplinary process and the number of questions he was required to respond to in writing i) removing him from driving duties pending DVLA approval j) reducing his pay to SSP. 57. The last of these is said to have been the final straw, which led to his resignation. He said the became aware of this in the January 2022 payslip. 58. Did Mr Marouani resign because of the breach(es)? 59. Did Mr Marouani delay too long before resigning and so affirm the contract? Disability 60. The company accepts that Mr Marouani had a number of physical or mental impairments at the material time, namely a) diverticulitis b) depression, c) anxiety, d) OCD and e) PTSD. Harassment on grounds of disability 61. Did the company or any of its employees engage in unwanted conduct as set out at paragraph 55 above? 62. Was the conduct related to his disability? 63. Did it have the purpose or effect of violating Mr Marouani’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 64. This involves unfavourable treatment because of something arising in consequence of Mr Marouani’s disability. 65. Firstly, can the company shown that it did not know that Mr Marouani had a disability, and could not reasonably have been expected to know? 66. If not, what unfavourable treatment did he receive? He relies on his constructive dismissal. (If any unlawful act is proved, and Mr Marouani resigned in response, by virtue of section 39(7)(b) of the Equality Act 2010 him resignation is also to be treated as an act of discrimination.) 67. Can Mr Marouani prove that the company treated him unfavourably because of the “something arising” in consequence of his disability, namely his ability to load large lorries in 30 minutes and/or his absence 68. Can the company show that this treatment was a proportionate means of achieving a legitimate aim? The company’s position on this issue is not clear. Unlawful deduction from wages 69. Was the reduction in pay made to Mr Marouani during his absence from work in accordance with the company’s sick pay and sick pay conditions policy? Remedies 70. If Mr Marouani wins his claim for unfair dismissal he may be entitled to a) reinstatement or re-engagement b) compensation for loss of earnings and/or c) an uplift in respect of any alleged failure to follow the ACAS Code in relation to his grievance. 71. If he wins his discrimination claim he may also be entitled to a) compensation for injury to feelings b) interest and/or c) a declaration or recommendation.’
Preliminary Matters
[4]At the outset of the Hearing we discussed the List of Issues with both the Claimant and Respondent; they agreed that the List of Issues accurately captured the Claimant’s claims.[5]We also explored timetabling with the parties and were content that the matter would be completed within the allotted Hearing days.[6]The Claimant had submitted a letter from his GP stating that stating that due to some of his impairments, he would require reasonable adjustments namely, ‘access to a disability toilet and have a 5 minute break every hour throughout the tribunal…a few minutes to feel calm in his head and get his thoughts together.’ We accommodated the Claimant’s request for reasonable adjustments which he acknowledged in his written closing submissions, ‘I would like to start by thanking the Employment Tribunal; specifically, this panel for hearing my case; and providing me with the scheduled breaks, it has been very helpful, making the process as fair as possible.’ Procedure and Documents[7]We had before us:(a) An agreed Hearing bundle consisting of 499 pages with a separate index;(b) an opening note from the Respondent; and(c) a chronology from the Respondent (unagreed by the Claimant who wished us to refer to the chronology in his witness statement).[8]We also had written witness statements and heard live evidence from: For the Claimant(i) The Claimant; For the Respondent(ii) Michael Hepworth;(iii) Marek Toombs ; and(iv) Jason Payne.[9]The Claimant and Respondent made oral and written closing submissions at the conclusion of the evidence.[10]We notified the parties at the outset of the Hearing that we would only read documents that we were specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact[11]The following findings of fact were reached by us, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, including the documents referred to by them, and taking into account our assessment of the witness evidence.[12]Only findings of fact relevant to the issues, and those necessary for us to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. We have not referred to every document we read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.[13]Whilst the Claimant was employed by the Respondent for just under 21 years the facts of this case are not complicated and the factual matrix is largely agreed. Therefore, in the interests of proportionality and in keeping with the Overriding Objective, we have confined our findings of fact to matters in dispute and those relevant for us to reach a fair determination of the complaints. Employment[14]The Claimant was employed by the Respondent on 19th May 2001 and at the material times he was a Large Goods Vehicle (‘LGV’) driver with the Respondent. The Respondent provides mail and postal services throughout the UK and employs approximately 120,000 staff. The Claimant’s employment terminated on 28th January 2022 upon the Claimant’s resignation.[15]The Claimant has the impairments of: Diverticulitis; depression; anxiety; obsessive-compulsive disorder (‘OCD’); and post-traumatic stress disorder (‘PTSD’). The Respondent accepts that he was disabled at the material times and knowledge of disability is accepted by virtue of s.6 EqA as follows,(i) In respect of depression and anxiety, at all material times (14 August 2021 to 28 January 2022).(ii) In respect of diverticulitis, from 20 August 2021.(iii) In respect of OCD and PTSD, from 24 November 2021.[16]The Claimant’s role initially required him to transport large metal containers (‘yorks’ (as they are known within the Respondent’s workplace)) between the Respondent’s various depots in a double-decker lorry. During the week 31st August 2021 and 6th September 2021 the Claimant’s duty had changed to second-class dispatch duty to the National Distribution Centre (‘NDC’) and back, driving a 110Y double decker trailer which was the largest articulated lorry in the fleet. The Claimant’s change in duty had been at his request and he was very happy to have had his request allowed by the Respondent. PostSeptember 2021, the Claimant was required to carry a load which consisted of yorks (on the top deck) and ‘nested yorks’ (empty yorks which were conjoined) on the lower deck. The overall maximum weight capacity of the lorries was not affected by the type of cargo carried. Sickness Absence[17]From the start of his employment the Claimant had had periods of sickness absence for multiple reasons. The majority of the Claimant’s absences were not disability related but for general common illnesses such as headaches, common colds, food poisoning and the like. On 20th August 2021 the Claimant was admitted into hospital with abdominal pain and discharged two days later, on 22nd August 2021, after having received surgery for a ruptured stomach. The Claimant was signed-off work sick for two weeks.[18]The Claimant returned to work in early September 2021 and attended a returnto-work meeting with Michael Hepworth (Templated Transport Officer) on 7th September 2021 [117]. The Claimant stated that he was not yet ‘100%’ but was fine to be in work and resume his duties. The meeting went well and the Claimant was positive about the future.[19]The Claimant attended an Attendance Review 1 meeting with Mr. Hepworth on 8th September 2021. Due to the Claimant’s level of sickness absence, he was issued with a Stage 1 warning.[20]On 25th September 2021, the Claimant messaged Mr. Hepworth asking for a meeting to discuss his ‘duty content.’ Mr. Hepworth responded and arranged to meet with the Claimant on 2nd October 2021.[21]The Claimant attended hospital on 30th September 2021 for a surgical procedure and was discharged the same day. The Claimant had opted to receive air and gas by way of analgesia, as opposed to an anaesthetic, so that he could resume his driving duties the next day. Unfortunately, the Claimant’s sleep was disturbed that night as he had been woken-up twice by his young daughter who was unwell. 1st October 2021 Incident[22]When a driver was just transporting yorks, 30 minutes were usually allocated to load and unload the vehicle. When a mixture of yorks and nested yorks were carried, the loading/unloading time was increased to 45 minutes. The time limits for loading and unloading were targets and there was a degree of flexibility. The loading/unloading was done in a collaborative fashion by drivers and dock workers.[23]Due to having had a restless night the Claimant overslept on the morning of 1st October 2021. The Claimant was due to be at work at 6.30am but did not awake until just before 6.24am. At 6.24am the Claimant called Chris Procter (Acting Shift Manager) informing him that he would be late into work. Mr. Procter acknowledged this and told him to come in as soon as possible and that his vehicle would be on the bay in readiness for departure (which was scheduled to be at 7.30am).[24]The Claimant arrived at work approximately 70 minutes after his due start time. The Claimant’s lorry was on the bay but only partially loaded and the Claimant was told to continue with the loading of nested yorks. The Claimant was irked by this and told Mr. Procter that he was ‘not in the right frame of mind’ or well enough to do what was being asked of him.[25]Mr. Procter was equally irritated by the Claimant’s stance and words were exchanged between the pair. Mr. Procter told the Claimant that he had chosen the specific duty and that it was part of his role. The Claimant responded by stating that he would not be loading the yorks and that if he was required to he would go home. This further annoyed Mr. Procter and he, rather ill-advisedly, told the Claimant to ‘fuck off.’ The situation had become heated with both Mr. Procter and the Claimant not in the best frames of mind. Mr. Procter told the Claimant that if he was not going to do his duty he should go home as there was no other duty for him to do.[26]The Claimant asked Mr. Procter if he was being suspended and Mr. Procter told the Claimant to go and have a coffee and calm down whilst he organised the loading of the vehicle. The Claimant retreated to his car and called Mr. Hepworth (who was not on-site). The Claimant was upset and cried as he told Mr. Hepworth what had happened between him and Mr. Procter. Mr. Hepworth did his best to calm the Claimant down and urged him to go and engage with Mr. Procter. Recognising that the Claimant was distressed Mr. Hepworth advised the Claimant not to drive his lorry and also that if he was going to go home, he needed to become calm and wait for a reasonable period before he drove his own car.[27]At approximately 7.55am Mr. Procter approached the Claimant and asked him if he was going to resume his duty. The Claimant said that he would not but that he was fit for work. Mr. Procter again asked the Claimant if he would do his duty and the Claimant said ‘no.’ Therefore, Mr. Procter suspended the Claimant for a 24-hour period. This was not unreasonable as it would have been dangerous for the Claimant to drive his lorry in his agitated state. Realising that he was being suspended, the Claimant went to see Mr. Procter, a few minutes later, and said that he would ‘do his duty’ as he did not want to be suspended. Mr. Procter informed the Claimant that he could not now allow the Claimant to begin his shift due to concerns about his mental health. The Claimant went home.[28]On 2nd October 2021, the Claimant attended work and completed his shift. At the end of his shift he met with Mr Hepworth, informally, as had been planned a few days prior. Understandably, much of the conversation related to the incident the previous day. Mr. Hepworth was evaluating if the incident with Mr. Procter could be resolved informally and told the Claimant that a fact-finding exercise may be required to establish exactly what had occurred. Mr. Hepworth did not suggest that the Claimant would be dealt with under the Respondent’s disciplinary procedure.[29]In the very early hours of 5th October 2021, the Claimant called Tony Crockford (Night Shift Manager) to inform him that he would not be attended work as he was ill with work-related stress. The Claimant did not return to work thereafter. The Claimant’s Absence from Work post-October 2021.[30]On 7th October 2021 the Claimant’s manager, Noah de Hoogh, wrote to him requesting he meet with her so that she could understand what issues were preventing him from attending work [145]. Ms. de Hoogh suggested that the Claimant meet with her on 14th October 2021. In her letter, Ms. de Hoogh explained to the Claimant that she was considering stopping contractual sickpay in line with the Respondent’s terms and conditions. Ms. de Hoogh pasted an excerpt from the respondent’s policy onto her letter which stated, ‘Entitlement to sick pay is always subject to strict observance of the following conditions: 1. Self-certificates or medical certificates, including ‘fit notes’, must be received by the business for all sick absences 2. The business must be satisfied that an employee's absence is necessary and due to genuine illness 3. The business reserves the right to refuse sick pay if an absence is due to, or is aggravated by, causes within the employee's control, or if the employee has neglected instructions given by a Doctor 4. An absent employee shall remain at their normal home address (other than to receive in-patient treatment) unless they have consent of their line or local personnel manager’[31]Also on 7th October 2021, the Claimant raised a complaint with the Respondent stating, inter alia, that he felt his ‘breach of trust at work had been severely diminished.’ The Claimant did not meet with Ms de Hoogh as requested.[32]Jason Payne (Distribution Manager) had become aware of matters pertinent to the Claimant and sent Ms de Hoogh an email on 8th October 2021 [130]. As Ms de Hoogh was an inexperienced manager, Mr. Payne informed her that an occupational health (‘OH’) referral needed to be made for the Claimant and that his mental health conditions were reportable to the Driver and Vehicle Licensing Agency (‘DVLA’) due to the potential serious repercussions of the Claimant driving a HGV when he may not be fit to do so.[33]On 12th October 2021 the Claimant sent the respondent a very lengthy formal complaint against shift managers. The Claimant felt that there had been a ‘serious breakdown in trust’ and he complained that Ms. de Hoogh had sent him a threatening letter.[34]Ms. de Hoogh wrote to the Claimant on 20th October 2021 advising him that his contractual sick pay had been stopped. However, this was not correct and the Claimant, erroneously, continued to receive contractual sick pay until 31st December 2021 when it de facto stopped.[35]Three other relevant matters occurred on 20th October 2021. Firstly, the Claimant was referred to OH. Secondly, the Claimant was invited to a factfinding meeting. Finally, the Claimant submitted a formal grievance against Ms. de Hoogh, Mr. Hepworth, and Mr. Procter. Due to the content and nature of his grievance, the Respondent decided that it should be addressed as part of the conduct fact-finding process.[36]On 22nd October 2021, the Claimant responded to Mr. Hepworth stating that he would not be attending the fact-finding meeting which had been scheduled for 26th October 2021 as he did not feel mentally strong enough to answer any questions.[37]The Claimant was due to be assessed by OH on 28th October 2021. However, whilst an OH practitioner contacted the Claimant on this day, the assessment was not carried out as the Claimant had withheld his consent to the process.[38]The Claimant was subsequently assessed by OH and a report was produced on 24th November 2021. The report stated that ‘If work issues can be resolved he is likely to be fit to resume his full normal duties’ and recommended that interaction with the Claimant should be in writing rather than face-to-face or via telephone. The report also recommended that a person whom the Claimant did not perceive to be involved in matters should initiate contact with the Claimant.[39]The Respondent accepted OH’s recommendations and tasked Marek Toombs (Late Shift Traffic Office Manager) to conduct the fact-finding process [MT, para. 7]. Mr. Toombs had had no prior interaction with the Claimant and had not met or spoken to him.[40]Mr. Toombs wrote to the Claimant on 2nd December 2021 with a list of 37 questions for him to respond to by 6th December 2021 [245-258, 277, 278]. The Claimant responded to Mr. Toombs and provided his responses to the questions posed. Following receipt of the Claimant’s responses Mr. Toombs wrote to the Claimant on 7th December 2021 seeking clarification where required.[41]On 25th January 2022 the Claimant emailed Ms. de Hoogh querying the stoppage of his contractual sick pay and advising that he would be returning to work on 28th January 2022.[42]Ms. de Hoogh emailed the Claimant on 27th January 2022 confirming that she would see him on 28th January 2022 for a ‘welcome back’ meeting. Also on 27th January 2022 the Claimant emailed Mr. Payne to inform him that he would be returning to work the next day and that he was aware that the conduct issue was still live and that this was causing him stress.[43]Following his emails to Ms. de Hoogh and Mr. Payne on 27th January 2022, the Claimant emailed a letter to Ms. de Hoogh, that same day, informing her that he was resigning from employment with immediate effect and would be making multiple claims to this Tribunal. Relevant Law Time Limits for EqA Claims
Relevant Law
[44]S.123 EqA states: (1) Subject to proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[45]In terms of case law: i. For the “conduct extending over a period” to be relevant, something that is found to have been the relevant discrimination must be in time for it to render the out of time claims justiciable by virtue of “conduct extending over a period” (South Western Ambulance Service NHS Foundation Trust v King UEAT/0056/19 at [33]); ii. with respect to the just and equitable extension arguments, it is for the Claimant to show discretion to extend time should be exercised and that there is no presumption to exercise the discretion – extension is the exception not the rule: Robertson v Bexley Community Centre1 [2003] EWCA Civ 576, [2003] IRLR 434 at [25][46]It is always necessary for tribunals, when exercising their discretion, to identify the cause of the complaint’s failure to bring the claim in time: Accurist Watches Ltd v Wadher2 (EAT/102/09) at [15].[47]Moreover, as the purpose of time bars is to ensure finality and certainty, it is difficult to see how a claimant can discharge such a burden of showing that it is just and equitable to extend time if either(a) he/she does not explain the delay or(b) the explanation is disbelieved: Edomobi v La Retraite RC Girls School UKEAT/0180/16 at [31].3 Constructive Unfair Dismissal[48]Under s.95(1)(c) ERA, an employee is considered to have been dismissed in circumstances where ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’. This is commonly known as constructive dismissal.[49]In order for there to have been a constructive dismissal there must have been:(i) A repudiatory or fundamental breach of the contract of employment by the employer;(ii) a termination of the contract by the employee because of that breach; and 1 Indeed prior to this case the EAT already made clear that just because a fair trial is still possible it does not automatically to lead time being extended: Newnham v Transco plc EAT/125/00, EAT/126/00 & EAT/844/00 at [29] 2 Langstaff J, without making any citation or reference to this case, equally reaches the same conclusion in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT//0305/13 at [52] also stated that “'The first question in deciding whether to extend time is why it is that the primary time limit has not been met…” 3 Indeed, the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; [2018] ICR 1194 accepted that whilst the test is broad with no specific list of factors to be considered, with lack of a good reason for delay not operating as an absolute bar, two factors that are always relevant: the reason for the delay and any prejudice caused to the other parties (at [18]-[20], and [24]-[26]).(iii) the employee must not have affirmed the contract after the breach, for example by delaying their resignation.[50]In Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221, CA, it was said ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, 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.’[51]An employee can rely on breach of an express or implied term of the contract of employment. In cases of alleged breach of the implied term of trust and confidence the test is set out in the case of Malik v. Bank of Credit and Commerce International Ltd [1998] AC 20; namely, has the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The test of whether there has been such a breach is an objective one (see Leeds Dental Team Ltd v. Rose [2014] IRLR 8).[52]It is open to an employee to rely on a series of events which individually do not amount to a repudiation of contract, but when taken cumulatively are considered repudiatory. In these sorts of cases the ‘last straw’ in this sequence of events must add something, however minor, to the sequence (London Borough of Waltham Forest v. Omilaju [2005] ICR 481).[53]On the question of waiving the breach, the Western Excavating case makes clear that the employee ‘must make up his mind soon after the conduct of which he complains; if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will regarded as having elected to affirm the contract.’[54]It is now settled post Buckland v. Bournemouth University [2010] EWCA Civ 121; [2010] IRLR 445 that the strict ‘objective’ contract breach (‘repudiatory breach’) test applies to constructive dismissal cases and the Court of Appeal has approved the 4-part guidance outlined by the EAT in the manner in which a Tribunal’s should approach unfair constructive dismissal cases – Sedley LJ at [22]-[23] ‘[22] The EAT considered this issue in great detail. The need for such consideration arose from the proliferation of recent authority and dicta on the subject, not all of it consistent. With both gratitude and relief this court can refer the reader to the detailed description and thoughtful analysis of these in the judgment of the EAT [2009] ICR 1042, §24–46. For my part I would respectfully endorse both EAT's reasoning and its conclusion at §47: “In summary, we commend a return to settled authority, based on the following propositions:(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.(3) It is open to the employer to show that such dismissal was for a potentially fair reason.(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt [2003] IRLR 23), fell within the range of reasonable responses and was fair. … [29] Where, if at all, the reasonableness of the employer’s conduct may enter the picture is through the statutory additions to the law of contract. Assuming, in other words, that there can be conduct which is both reasonable and a fundamental breach of contract, a constructive dismissal claim would be impossible to decide unless stage (1) was tested objectively on ordinary principles and reasonableness deferred to stage (4).’[55]S.15 EqA provides that:(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.[56]Guidance as to whether treatment is because of something arising in consequence of disability is provided in Pnaiser v. NHS England [2016] IRLR 170, by Simler P (as she then was) at §31 and the correct approach to justification was summarised at §10 in MacCulloch v. ICI [2008] ICR 1334.[57]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it (see: Hardys & Hansons plc v. Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]– [55] and Gage LJ at [60]). The burden of proof is on the Respondent to establish justification (see: Starmer v British Airways [2005] IRLR 862 at [31]).[58]In the context of S.15(1)(b) EqA, this means that a Tribunal must objectively balance whether the conduct in question is both an appropriate and reasonably necessary means of achieving the legitimate aim. It is for an Employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter.[59]In Birtenshaw v Oldfield [2019] IRLR 946, the EAT held that the Tribunal's consideration of that objective question should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly. To this end, the Explanatory Notes to the EqA explain at paragraph 70 that section 15 ‘is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer or other person to defend the treatment.’ Harassment Related to Disability[60]S.26(1) of the Equality Act 2010 provides: “A person(a) (A) harasses another(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[61]A similar causation test applies to claims under section 26 as described above to claims under section 13. The unwanted conduct must be shown ‘to be related’ to the relevant protected characteristic. The shifting burden of proof rules set out in section 136 of the Act can be helpful in considering this question. The burden is on the claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the respondent, show she has been subjected to unwanted conduct related to the relevant characteristic. If she succeeds, the burden transfers to the Respondent to prove otherwise.[62]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.[63]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in section 26(4), namely:(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that affect. The shifting burden of proof rules can be also be helpful in considering the question as to whether unwanted conduct was deliberate.[64]In Richmond Pharmacology v. Dhaliwal [2009] IRLR 336, the EAT held that it would normally be a 'healthy discipline' for Tribunals to address each factor separately and ensure that factual findings are made on each of them.[65]In so far as the second of those matters is concerned, guidance was given by the EAT in Betsi Cadwaladr University Health Board v. Hughes [2014] 2 WLUK 991; per Langstaff P: ‘10. Next, it was pointed out by Elias LJ in the case of Grant v. HM Land Registry [2011] EWCA Civ 769 that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: 'Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” 11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[66]Consideration should also be given at this stage to the reasonableness of the effect. The test in this regard has both subjective and objective elements. The Tribunal is to look at the effect of the conduct from the claimant's point of view, but must also ask whether it was reasonable of the claimant to consider that conduct had that requisite effect (Dhaliwal). The context of the conduct in question is relevant to all stages of the test. Unauthorised Deduction from Wages[67]S.13 ERA provides that (so far as material): ‘13 Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.’ … Conclusions and Analysis Credibility of Evidence[68]We find that the Claimant’s evidence was skewed by his perception of the Respondent’s actions which he felt were malevolent. The C also dissembled from directly answering questions in cross-examination and departed from his previously pleaded case and witness statement evidence when he believed that it was unhelpful to his case.[69]We found the R’s witnesses credible and where there was a dispute, we preferred their evidence. Constructive Unfair Dismissal[70]The Claimant relies on 10 discrete acts which he says breached the implied duty of trust and confidence inherent in every contract of employment with the 10th allegation (56(j) of the LoI) being the proverbial ‘final straw.’ The Claimant also relies on these 10 allegations as complaint’s of harassment related to disability. We therefore, address the issue of discrimination in tandem with our findings on constructive unfair dismissal for the purposes of these reasons in the interests of proportionality. Harassment Related to Disability[71]When considering each separate allegation of harassment we have been mindful to apply the relevant legal test to each one. That is, was the conduct complained of unwanted, causation, and then purpose or effect. In respect of effect, we considered whether it was reasonable, subjectively and objectively, for the acts to have the effect the C complains of.[72]LoI 56.(a): The Claimant assigned himself his own vehicle, chose the duty he wanted to undertake, and took on no extra work on occasion or otherwise. There was no unwanted conduct by the Respondent and this allegation fails.[73]There was no fundamental breach of contract by the Respondent entitling the 74. 56(b): We accept that Mr. Procter swore at the Claimant but this was not harassment related to his disability. Mr. Procter, who was of intemperate nature, swore at the Claimant because the Claimant refused to do his duty and whilst this was unwanted conduct it was not but not because of his impairment or harassment. The working culture at the Respondent included frequent swearing by staff and the use of course language. The Claimant accepted that such a working environment existed and admitted that he too swore but not to the extent of some of his colleagues.[75]There was no refusal to refer the Claimant for a medical assessment; the Claimant did not ask for one. Notwithstanding this, the Respondent did refer the Claimant to OH.[76]The Claimant said to Mr. Procter that ‘I will go home sick if you can give me that instruction to take the Yorks in writing.’ Mr. Procter gave the Claimant a ‘cooling off period’ before suspending the Claimant as he did not follow a management instruction and was not in a fit enough state to drive a lorry. Harassment is not made out and the complaint fails.[77]There was no fundamental breach of contract by the Respondent entitling the 78. 56(c) The Claimant and Mr. Hepworth were going to meet on 2nd October 2021 in any event. Mr. Hepworth was supportive of the Claimant and had offered to come in and meet with the Claimant during annual leave. There were no threats made of disciplinary action all Mr. Hepworth did was allude to a fact-finding exercise not disciplinary action. Mr. Hepworth simply told the Claimant that he should have followed management instructions. This allegation is not made out.[79]There was no fundamental breach of contract by the Respondent entitling the 80. 56(d): The Claimant was not subjected to the disciplinary process but factfinding which is part of the Respondent’s investigatory process. The wording of the Respondent’s policy could have been more precise. i.e. ‘reside’ or ‘live’ instead of remain at home. We do not accept that the Claimant genuinely believe that he was under house arrest. The Claimant had been a long standing member of the Respondent and was familiar with their sickness absence policy and procedure as he had had considerable levels of sickness absence during his employment. This allegation fails.[81]There was no fundamental breach of contract by the Respondent entitling the 82. 56(e) Given the content of the Claimant’s bullying and harassment complaint it overlapped with the fact finding process into the Claimant’s conduct and the Respondent did not ignore the Claimant’s written complaint. It was reasonable for the Respondent to deal with his bullying and harassment complaint during the fact finding investigation. This allegation is not made out.[83]There was no fundamental breach of contract by the Respondent entitling the 84. 56(f): It was reasonable for the Respondent to change the allegation against the Claimant from ‘failing to obey a reasonable management instruction’ to ‘refusing to obey a reasonable management instruction’ because that is what actually happened. There was a delay caused by the Claimant which would have had a knock-on effect on colleagues and service delivery when he refused to do his duty on 1st October 2021. The Claimant’s own evidence is that he was severely distressed, emotional, and upset after his altercation with Mr. Procter yet he wanted to drive his lorry. This was not reasonable of the Claimant and he should not have held himself out as fit enough to do so. Harassment is not made out and this complaint fails.[85]There was no fundamental breach of contract by the Respondent entitling the 86. 56(g): There was considerable documentary evidence before us which demonstrated that the Claimant was not pressured to attend work before receipt of medical advice [161,195, 200, 208, 298, 302, 400]. In fact, the Respondent made several attempts to secure the Claimant’s engagement but he on three occasions refused to provide his consent for OH referral. We do not accept that the OH practitioner told the Claimant that he would not assess him, rather, it was the claimant who refused to continue with the assessment. This complaint is not upheld.[87]There was no fundamental breach of contract by the Respondent entitling the 88. 56(h): It is factually incorrect that the Respondent sent the Claimant an excessive volume of correspondence during the disciplinary process. The OH advice was to write to the Claimant and not telephone him or have an in-person meeting. We believe that 37 questions to be answered in a small timeframe could be excessive for an employee who is on sick leave but accept that it is the Respondent’s policy and was applied uniformly. We also accept that more time was given to Claimant by Mr. Toombs to respond to the questions sent to him. This allegation fails.[89]There was no fundamental breach of contract by the Respondent entitling the 90. 56(i): Whilst removing the Claimant from driving duties pending DVLA approval was unwanted conduct, in the circumstances, there was little else the Respondent could do. The Claimant himself said that he had ‘flare-ups’ with mental health issues and this coupled with the OH advice made the Respondent’s actions perfectly reasonable. Harassment is not made out.[91]There was no fundamental breach of contract by the Respondent entitling him to resign. 92. 56(j): The Respondent’s policy on contractual sick pay and statutory sick pay is very clear. In the circumstances the Respondent was entitled to withhold contractual sick-pay in light of the Claimant’s conduct. This allegation is not made out.[93]There was no fundamental breach of contract by the Respondent entitling him to resign.[94]The Claimant’s claims of harassment related to disability and constructive unfair dismissal are not well founded and fail.[95]Not being able to load large lorries in 30 mins was not something arising from the Claimant’s as that was the duty he had chosen and successfully executed. The Claimant’s absences from work were also not something arising from his disability as the Claimant had refused OH referrals and stress-risk assessments and it was this that made him remain off-work.[96]The Claimant’s resignation was not prompted by anything arising from his disability and was not unfavourable treatment by the Respondent.[97]The Claimant’s s.15 EqA compliant is not well founded and is dismissed. Unauthorised Deductions from Wages[98]There was no unauthorised deductions from the Claimant’s wages by the Respondent and he was paid all monies due to him.[99]The Claimant was not entitled to contractual sick pay when he was unable to work due to his own conduct (as per the Respondent’s [policy) but he was entitled to, and received, statutory sick pay.[100]This complaint fails and is dismissed.[101]For these reasons it is our unanimous decision that the claim is not well founded and is dismissed.