Mr D Verdin v M & S Transport: 2400894/2022 and 2404704/2022
EMPLOYMENT TRIBUNALS
Case No 2400894/2022, 2404704/2022
Between
Mr D VerdinClaimantM & S TransportRespondent
Before
Employment Judge B HodgsonIn person for claimantMr D Flood (instructed by Counsel) for respondentDate 26 January 2024
JUDGMENT
[1]the claimant was not, at the relevant time, a disabled person as defined[2]the claims of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment are accordingly dismissed[3]the claimant is ordered to pay to the respondent the sum of £1,250.00 by way of costs[4]the matter is listed for a further Preliminary Hearing on 13 June 2023
REASONS
[1]The claimant initially presented an ET1 Claim Form on 10 February 2022 which was given case number 2400894/2022. The form set out claims of: 1.1. Direct disability discrimination 1.2. Discrimination arising from disability 1.3. Failure to make reasonable adjustments 1.4. Harassment 1.5. Victimisation 1.6. Failure to provide written statement employment particulars 1.7. Unauthorised deduction from wages[2]The claimant subsequently presented a further ET1 Claim Form on 12 June 2022 which was given case number 2404704/2022. The form set out a claim of constructive unfair dismissal[3]All claims were defended by the respondent with separate ET3 Response Forms. It was denied that the claimant was, at the relevant time, a disabled person as defined[4]The matter came before the Employment Tribunal by way of Preliminary Hearing on 23 August 2022 ("the first PH")[5]At the first PH, case management orders were made culminating in a Final Hearing listed for 22 – 26 January 2024. The matter was also listed for a further Preliminary Hearing on 1 December 2022 'to determine whether or not the claimant was a disabled person by reason of the impairments of spinal stenosis and arthritis and emotional unstable personality disorder' ("the disability issue"). Further case management orders were made in respect of the disability issue[6]The matter came before the Tribunal as scheduled on 1 December 2022 but was adjourned to 23 December and was further adjourned on that day to 21 March 2023. The Record of the Preliminary Hearing on 23 December 2022 sets out the background and reasons for the two adjournments and the further case management orders made[7]The matter proceeded on 21 March 2023 by way of Preliminary Hearing to determine the disability issue Disability Issue[8]What was to be considered and determined at this Preliminary Hearing was discussed at the outset[9]The issue to be determined by the Tribunal is whether or not at the relevant time the claimant was a disabled person as defined[10]The claimant confirmed at the outset that he was relying on the conditions of Emotional Unstable Personality Disorder and Spinal Stenosis and Arthritis although he clarified that, in respect of the latter condition, he would describe it more generically as a "spine and shoulder condition". The respondent's representative took the position that the claimant's pleadings had been clear in the two impairments to be relied upon and this was an attempt at the last minute and without prior notification to widen the position. The Tribunal noted the parties' respective positions[11]In terms of the relevant period, it was agreed that, in accordance with the pleaded case, the discriminatory acts complained of commence in August 2018 and run through to February 2022. This was accordingly agreed by both parties as the relevant period Facts[12]The parties had agreed a bundle of documents ("the Bundle") and references to numbered pages in this Judgment are to pages as numbered within the Bundle. The Tribunal makes reference within these findings to certain entries within the claimant's medical records but all documentation put before the Tribunal was considered by it[13]The claimant had prepared, as he had been ordered to do, a written statement ("the Impact Statement") which had been forwarded to both the Tribunal and the respondent by email dated 6 October 2022 [pages 93 – 94] and gave oral evidence on his own behalf. What was needed to be covered within such statement was fully set out in the Record of the first PH [see page 78 at paragraph 3.2]. The respondent's representative did not call any witnesses to give oral evidence[14]The Tribunal came to its conclusions on the following facts on the balance of probabilities, having considered all of the evidence before it, both oral and documentary, and the sub missions made by both parties General background[15]The claimant was employed by the respondent as a Driver from early 2019 until February 2022. On the face of the papers, there is a dispute as to the actual start date. The Record of the first PH sets out a brief case summary [see page 75 at paragraphs 11 – 14] Medical Records - Spinal Stenosis and Arthritis[16]The claimant's evidence was that this impairment arose from a Road Traffic Accident in July 2019 and he had been told of this specific diagnosis by his GP in January 2021. There is no record within the Bundle of such diagnosis nor in fact of any consultation between the claimant and his GP at all in the month of January 2021[17]While acknowledging the respondent's position as to the claimant's pleaded case and the specific impairments said to be relied upon, the Tribunal noted the following potentially relevant entries18.17 July 2019. Pain in the shoulder and lower back following a Road Traffic Accident the previous day [page 182]19.13 September 2019. …increased pain in the back, getting pain in shoulder blade and in the middle of the back [page 182]20.11 December 2020. Following x-rays on clavicle and shoulder, nil found but ongoing private avanti physio not improving and very painful…. Suspecting undiagnosed rotator tear. HGV driver using paracetamol and not keen for further analgesia but impacting ability to work and needs sorting [page 178]21.18 December 2020. Minor osteophytosis C2 – 5. No vertebral body height loss/fracture [page 177][22]12 February 2021. There is moderate tendinopathy involving the supraspinatus particularly bursal surface fibres with overlying thickening of the subacromial bursa which looks longstanding. Rotator cuff tendons are otherwise intact. Mild degenerative ACJ OA … tendinopathy and mild arthritis [page 177]. This diagnosis was confirmed on 15 March 2021 with longstanding back/neck pain since accident a couple of years ago … some osteophytes [page 176] 23. 11 April 2022. Mild degenerative change in the imaged spine [page 165][24]There are earlier references to lower back pain including on 25 March 2015 confirming that axial imaging through the lowest three lumbar discs shows no disc prolapse, spinal stenosis, exit foraminal narrowing or nerve root impingement at any level [page 193] Medical Records - Emotional Unstable Personality Disorder[25]It is agreed that the claimant was formally diagnosed with the condition of Emotional Unstable Personality Disorder in 2011[26]The claimant's evidence was that he had not taken any medication for this condition since 2014[27]In response to a letter of enquiry from the DVLA [pages 210 – 212], the claimant's GP confirmed that as far as he could ascertain from the claimant's GP records, his mental health has remained stable over the period you mention [page 214]. It is not entirely clear what period is being referred to but it appears to be from 2011[28]There was also a request from the claimant dated 11 October 2021 [page 216] to his GP to supply a report to the respondent – can you also confirm I am not medicated and no medication is required. The GP did confirm this by letter dated 17 October 2021 [page 213] stating that the claimant "has not taken any medication for [the mental impairment] for several years" Impact Statement[29]The claimant's Impact Statement is at pages 93 – 94. It is very generalised and the respondent's representative did not cross-examine the claimant, acknowledging that the evidence set out in the statement was accordingly unchallenged[30]Given that the claimant was not legally represented, the Tribunal gave him the opportunity to expand upon the content of his statement[31]In answer to the Tribunal's question as to whether either of the impairments relied upon prevented him from doing anything, his reply was that he struggles with his emotions, struggles to get up in the morning and struggles with crowds of people. He was however taking no medication and there was nothing that he could not do on a day to day basis as a consequence of his impairments. He referred the Tribunal to a letter from his GP dated 30 March 2020 which confirmed this evidence [page 257][32]The Tribunal's assessment of this evidence is incorporated within its conclusions below Statutory Framework[33]The definition of a disabled person for the purposes of the statute appears at section 6 Equality Act 2010 ("EqA"). This is supplemented by Schedule 1, Part 1 EqA, headed "Determination of Disability"[34]The burden is on the claimant to show, on the balance of probabilities, that he had, at the relevant time, a disability as defined[35]Section 6(1) EqA states: "A person (P) has a disability if – a) P has a physical or mental impairment, and b) the impairment has a substantial and long term adverse effect on P's ability to carry out normal day to day activities."[36]Within the interpretation section, section 212 EqA states that, in this Act … 'substantial' means 'more than minor or trivial'[37]Paragraph 2 of Schedule 1 Part1 EqA states that the effect of an impairment is long-term if – a) it has lasted for at least 12 months, [or] b) it is likely to last for at least twelve months ,,, Further at subsection (2), "if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur"[38]The long-term requirement relates to the effect of the impairment rather than the impairment itself[39]In determining whether a person is disabled, the Tribunal should apply the appropriate test to the claimant's condition at the date of the alleged discriminatory act and not at the date of the hearing (see, for example Cruikshank v VAW Motorcast Limited [2002] IRLR 24[40]In the context of the definition of "long-term", "likely" means "could well happen" (see, for example, SCA Packaging v Boyle [2009] IRLR 746)[41]"Guidance on matters to be taken into account in determining questions relating to the definition of disability" was issued in 2011. This Guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law. Any aspect of this Guidance, however, which appears to the Tribunal to be relevant in determining whether a person is a disabled person must be taken into account and the Tribunal considered the Guidance where relevant to its findings Submissions
findings
[42]The respondent's representative made oral submissions summarised as follows 42.1. the pleadings make very clear the conditions being relied upon by the claimant 42.2. the Tribunal was referred to what the representative considered to be the relevant entries within the claimant's medical records 42.3. such entries when seen in the context of the evidence given by the claimant both within his Impact Statement and orally lead to the clear conclusion that the claimant does not fall within the definition of a disabled person during the relevant time[43]The claimant made oral submissions summarised as follows: 43.1. there was a clear history of his mental health 43.2. the medical records confirm the physical difficulties he has had with his back neck and shoulder and it has been made clear to him that without physio he would end up with arthritis[44]Neither party referred the Tribunal to any caselaw
Conclusions
[45]It is for the Tribunal to determine whether as a consequence of his impairments, the claimant falls within the definition of a disabled person based upon the evidence both oral and documentary[46]There is no disagreement that the claimant has been formally diagnosed with the mental condition of Emotional Unstable Personality Disorder as long ago as 2011 or that he had a Road Traffic Accident in July 2019 which caused physical damage to the region of his neck, shoulder and back[47]The claimant has not been prescribed any medication with regard to his mental impairment for a number of years prior to the relevant period but there is clearly no argument as to this impairment falling within the definition of "long-term"[48]With regard to the physical impairment relied upon, the Tribunal noted that this was specifically described within the pleadings at a time when the claimant was legally represented as "spinal stenosis and arthritis". As indicated, at the outset of the hearing, the claimant suggested a more generic complaint of "spine and shoulder condition" and the respondent's representative's objection to this is also noted. The Tribunal's position is that it is not prepared to discount the potential of the claimant falling within the definition of a disabled person by reference to this impairment solely on a somewhat technical argument over the exact terminology used to describe it[49]Again, given the timing, the Tribunal concludes that there is no argument as to this impairment falling within the definition of "long-term"[50]In respect of each impairment therefore, the argument concerns whether or not either or both of them fall within the definition of having a substantial adverse effect upon the claimant's ability to carry out normal day to day activities[51]The claimant's Impact Statement does make reference, in regard to his mental impairment, to his mood, thoughts and emotions. In regard to the physical impairment, it states that "the pain was that severe I struggled to walk upright sit comfortably or even sleep in bed at night. I had broken sleep throughout my ordeal and I am still suffering now. I find that the only position I am comfortable since the accident is to sit on the end of the bed and rest my head on a suitcase or dressing table." Whilst the ability to sleep would readily fall within the category of day to day activities, these are somewhat generalised statements. Although the Tribunal is mindful that reference in the statutory framework is specifically to "normal day to day activities", the Tribunal does consider it relevant - particularly given the matters relied upon by the claimant – to note that effectively throughout the relevant period, the claimant was able to perform his work duties. It is further noted that his job was a commercial driver, a job that requires careful and prolonged attention given the potential severe consequences of any lapse in concentration and an element of physical dexterity[52]The most telling evidence however is the claimant's own oral evidence that "there is nothing I cannot do on a day to day basis"[53]The Tribunal is mindful that "substantial" is interpreted as "more than minor or trivial" but the Tribunal concludes, on the evidence and on balance of probabilities, that neither of the claimant's impairments had any substantial effect upon his ability to carry out normal day to day activities during the relevant period.[54]Accordingly, the Tribunal concludes that the claimant was not, at the relevant time, a disabled person as defined[55]It follows as a consequence that the claims of direct discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment fall to be dismissed[56]It was agreed that the appropriate next step, irrespective of the outcome of the Preliminary Hearing, was for the matter to be listed for a further Preliminary Hearing to consider any further case management orders that may be required prior to the Final Hearing which at present remains as listed Costs[57]As had been anticipated at the adjourned hearings, the respondent made an application for costs under Rule 76 which was opposed by the claimant[58]The application was put on the basis of the claimant having acted unreasonably in his conduct of the claim, specifically in the Preliminary Hearing being adjourned on 1 December 2022[59]The background to the adjournment, as indicated, is set out in the Record of the hearing listed on 23 December 2022 [pages 86 – 89][60]The respondent, fairly, limited its claim to the consequences of the adjournment on 1 December 2022 arguing that it arose out of the claimant's failure to produce his medical records which amounted to unreasonable conduct on his part.[61]The claimant accepted that he had not produced his medical records in advance of the hearing. He explained this variously by reference to a misunderstanding with his prior legal representative, a misunderstanding as to what was required to be produced and difficulties as to formatting[62]The Tribunal noted the clear requirement as to production set out in the Record of the first PH [page 78 at paragraph 3.3] and the time available to comply[63]In all the circumstances, the Tribunal was satisfied that the claimant's conduct resulting in the hearing having to be adjourned was unreasonable and a costs order would accordingly be made[64]The Tribunal took brief evidence from the claimant as to his financial position (see Rule 84) . The claimant had secured further employment since the termination of his employment with the respondent at the rate of £34,000 per annum with standard outgoings[65]The respondent's representative valued the claim at Counsel's fees of £1,250 and solicitor's fees £1,750 and provided a breakdown. The Tribunal was satisfied that Counsel's fees had been unreasonably incurred in all the circumstances. The solicitor's fees however were somewhat peripheral to the adjournment itself and, on the information provided, better described as part of overall preparation. In such circumstances, the Tribunal considered it appropriate to make a costs order in the sum of £1,250 Further conduct[66]A further Preliminary Hearing is listed for 13 June 2023, starting at 10am with a time estimate of two hours, when the remaining complaints will be considered and further case management orders made with a time estimate of two hours. This will be a remote hearing either by telephone or CVP and the parties will be sent joining instructions closer to that date[67]One of the matters that will need to be clarified is the correct identity of the respondent
The Facts
[68]On 26 November 2021 the claimant emailed Mr Towers to say he would be back at work on Monday. He attached the GP letter requesting altered start and finish times, so as to avoid SC.[69]On 29 November 2021 the claimant attended work and was told he was having a training day. Brian Carter required him to read files around training issues and then to do some driving on an 18 tonne truck later that day. When he came back from driving Brian Carter presented him with a written contract to sign. It included the job title HGV driver. The claimant refused to sign it saying that it did not record an agreement that he had with Mr Towers about only driving an 18 tonne for a one day emergency cover and ordinarily driving 7.5 tonne.[70]Brian explained to the claimant that he would be needed to drive an 18 tonne vehicle for the whole of December. The claimant said he would not. He was told by Brian that in that event there was no work for him. Brian sent the claimant home without pay.[71]On 1 December 2021 the claimant went to work but was sent home by Mr Carter because he would not drive an 18 tonne vehicle. He contacted Mr Carter to ask if he would be paid. Mr Carter replied on 2 December 2021: “The reason for being sent home was due to your self refusing to carry out a reasonable request from the management team. Until you return to work on the duties of driving an 18tn vehicle you will be unpaid.”[72]The claimant responded saying he had an agreement in place agreed by Mr Towers from June 2021 by which he only had to drive an 18tn for 1 day emergency cover until agency cover could be provided. Mr Carter replied at 11.23 saying that he had spoken to Mr Towers and the only agreement is that the claimant would remain on 18t pay but would be allocated 7.5tn as often as possible but would be required to drive an 18tn “as and when” required. There was no “one day emergency cover only” agreement. Mr Carter said that there was a need for an 18 tonne driver during December. Mr Carter said this was a reasonable request reflected by the claimant’s pay. The protected act for victimisation[73]On 7 December 2021 the claimant wrote to Mr Towers saying: “This is a formal letter of grievance, victimisation, bullying, disability discrimination ….”[74]The letter goes on to detail the discrimination that the claimant says he has suffered.[75]The claimant did not return to work. During December there were correspondences about data subject access requests. The claimant asked for his contract and employee handbook and Mr Carter said: “I cannot provide your contract or employee handbook as you have still not signed a copy of the ones you took away to get your legal advice on.” The appeal against the grievance outcome GR1[76]On 14 December 2021 a meeting took place by Teams to hear the appeal against the outcome dated 21 October 2021 of the claimant’s grievance (GR1).[77]The letter convening the meeting dated 7 December 2021 had said the hearing would be limited to matters raised in the claimant’s appeal letter dated 16 November 2021. The claimant said in an email to Mr O Donohue, external solicitor engaged to hear the appeal, that he had lost his trust with the company.[78]The appeal meeting was short. The claimant protested after the meeting that Mr O Donohue was biased as he had been the solicitor from whom the company had taken legal advice about his grievance prior to the outcome of 21 October 2021 which he was appealing. Mr O Donohue wrote to say that he had had no involvement in this case prior to the appeal. He asked the claimant to provide a transcript that the claimant said he had of the investigatory interview into the grievance on 31 August 2021. The claimant agreed to do this and said he would need some time to type it out.[79]On 4 January 2022, in response to a chase up, the claimant emailed Mr O Donohue to explain that he had had some problems at home and had taken time to have the transcript ready but would send it first class before the weekend.[80]On 4 January 2022 the claimant asked the respondent by email for copies of his payslips so as to support his application for universal credit.[81]On 11 January 2022 Mr Carter wrote to the claimant to say: “You have been on unpaid leave ……………..with no expected return date. We are therefore writing to you to explain the current duties that are available to you and assist you return to work. Whilst we appreciate that you have expressed a preference to work with the 7.5 tonne vehicles, unfortunately there is no such work available at this time. However, we are able to provide you the following duties, 18 tonne delivery and collections. Should work become available at the 7.5 tonne vehicles we will advise you of the same. We should be grateful if you can confirm whether you would be willing to undertake the above duties and when you expect to return to work. If there is anything that we can do to facilitate your return. Please do not hesitate to contact us.”[82]On 18 January 2022 the claimant sent the transcript of the grievance investigation meeting to Mr O’Donoghue.[83]The claimant replied to Mr Carter’s 11 January 2022 letter on 28 January 2022. The claimant said that he had no desire to drive an 18 tonne wagon. He said he was happy to take a drop in pay to 7.5 tonne rate. The claimant said that he was being kept off work without pay unless he obeyed the respondent’s demands to drive an 18 tonne wagon. He said: “You have also stated there is no work for me to drive a 7.5 tonne wagon if that is the case why are you having agency drivers into driver 7.5 tonne wagons. Due to the actions of the company I’ve lost all trust and confidence within them.”[84]On 2 February 2022 Brian Carter wrote again to the claimant asking would it be possible to arrange a meeting to discuss the options of returning to work with the option of driving a 7.5 tonne vehicle. Mr Carter chased the claimant again on 7 February 2022 and said that he had set a meeting date for Wednesday, 9 February 2022 to discuss options of returning to work and proposal of moving to a 7.5 tonne driver role.[85]The claimant replied on 7 February 2022 saying that he had tried on numerous occasions to return to work but the company had looked for every excuse to stop his return. The claimant said he would not be attending a meeting and that he was suffering with stress and anxiety because of the way the company was treating him. He said: “You are in breach of the Health and Safety at Work Act 1974. I am currently seeking legal advice regarding this.”[86]On 3 February 2022 the claimant chased Mr O’Donoghue for his appeal outcome. On 8 February 2022 Mr Carter wrote: “Can I make it clear under no circumstances has the company stopped you returning to work, you yourself chose to stay off work during the busy Christmas period due to refusing to drive an 18 tonne vehicle which you are contracted to do. After the Christmas period there was little requirement for 7.5 tonne work. Now, things are returning to normal volumes the company has offered you the opportunity to discuss the potential for moving your contract or more permanent 7.5 tonne role, which you again have refused. We need to arrange a meeting to discuss your concerns of the company which then will hopefully allow you to feel you can then return to work.”[87]On 8 February 2022 the claimant wrote to Mr O’Donohue saying that he had no correspondence from him since sending the transcript 18 January 2022 despite numerous chase ups about his appeal outcome.[88]The claimant sent a letter of resignation on 13 February 2022. He said: “I have lost all trust and confidence within the company after the way you conducted yourself during my grievance complaints and my disciplinary……. I feel I’m being pushed out of the company….. I feel I am being treated this way just because I am raising the grievances in the first place…… I understand you’ve now offered me the possibility of permanently driving 7.5 tonne vehicles….. I don’t understand this and do not feel it is genuine. This was already in place then once I’d raised the grievances you took this away from me and said there was no work for me that I had to go home. You then said you would consider my request and now say you are offering make this permanent. On this basis I no longer have trust in your actions and do not feel I can return and agree to this permanent arrangement as who is to say that you will take it away from me again. This has caused a breakdown in our employment relationship….irrevocably broken down and I resign as a result of the fundamental breach of the employment contract.”[89]On 16 February 2022 Mr Carter wrote to the claimant asking him to reconsider his resignation and his position within the company. Mr Carter sent a detailed letter addressing, in each paragraph, matters that the claimant had been complaining about. During February 2022 there were disputes between the parties as to whether the claimant had ever received his payslips or not. On 25 February 2022 Mr Carter wrote the claimant reluctantly accepting his resignation. The letter dealt with matters that had been contained in the claimant’s grievances and it said that the claiman’st payslips had been provided.[90]On 9 March 2022 Mr O’Donohue wrote to the claimant setting out the outcome of the grievance hearing. The grievance appeal against the GR1 outcome was not upheld. The letter explained that the reason for delay in outcome was because of the time it took the claimant to provide transcript notes and because Mr Carter, who Mr O’Donohue had needed to talk to, had been absent from work for a period during January.[91]The claimant had contacted ACAS on 30 November 2021 and achieved a Certificate on 10 January 2022. He lodged his Tribunal complaint on 10 February 2022 and then submitted a second Tribunal claim form for unfair dismissal on 12 June 2022, having been to ACAS regarding his constructive unfair dismissal on 12 May achieving a certificate the same day.
Relevant Law
[92]The claimant’s unfair dismissal claim was brought under Part X of the Employment Rights Act 1996. Section 95(1)(c) provides that an employee is dismissed by his employer if: “The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[93]The principles behind such a “constructive dismissal” were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27. The employee is entitled to treat himself as constructively dismissed only 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.[94]The term of the contract upon which the claimant relies in this case was the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of that implied term and approved a formulation which imposed an obligation that the employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[95]The test is an objective one in which the subjective perception of the employee can be relevant but is not determinative. Lord Nicholls said at page 611A: “The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.” The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract.[96]In Frenkel Topping Limited v King UKEAT/0106/15/LA21 July 2015 the EAT chaired by Langstaff P put the matter this way (in paragraphs 12-15): “12. We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien [2001] IRLR 496 at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI [1997] UKHL 23 as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”13. Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores [2002] IRLR 9.14. The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors [2011] IRLR 420, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.15. Despite the stringency of the test, it is nonetheless well accepted that certain behaviours on the part of employers will amount to such a breach. Thus in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 CA Sedley LJ observed that a failure to pay the agreed amount of wage on time would almost always be a repudiatory breach. So too will a reduction in status without reasonable or proper cause (see Hilton v Shiner Builders Merchants [2001] IRLR 727). Similarly the humiliation of an employee by or on behalf of the employer, if that is what is factually identified, is not only usually but perhaps almost always a repudiatory breach.”[97]In some cases, the breach of trust and confidence may be established by a succession of events culminating in the “last straw” which triggers the resignation. The decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. The Court of Appeal affirmed these principles in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978.[98]In 2020 Auerbach HHJ in the Employment Appeal Tribunal in Williams v The Governing Body of Alderman Davies Church in Wales Primary School applied Omilaju and Kaur: “28. The starting point is that there will be a constructive dismissal, that is to say an dismissal within the meaning of section 95(1)(c) of the Employment Rights Act 1996 where a) there has been a fundamental breach of contract by the employer b) which the employee is entitled to treat us terminating the contract of employment and c) which has materially contributed to the employee’s decision to resign. As to the first element, the fundamental breach may be a breach of the Malik term. That may come about either by a single instance of conduct, or by conduct which, viewed as a whole, cumulatively crosses the Malik threshold. As to the third element, the conduct amounting to a repudiatory breach does not have to be the only reason for resignation, or even the main reason, so long as it materially contributed to, or influenced the decision to resign. 30. If there has been conduct which crosses the Malik threshold, followed by affirmation, but there is then further conduct which does not, by itself, cross that threshold, but would be capable of contributing to a breach of the Malik term, can the employee then treat that conduct, taken with the earlier conduct, as terminating the contract of employment?”[99]The answer comes at paragraph 34. “34. ... so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it, has not been lost and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent conduct has also contributed to the decision to resign. It would be true in such a case that in point of time it will be the later conduct that has “tipped” the employee into resigning: but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign…”[100]Section 95(1)(c) provides that the employee must terminate the contract by reason of the employer’s conduct. The question is whether the repudiatory breach played a part in the dismissal. It need not be the sole factor but can be one of the factors relied on. If, however, there is an underlying or ulterior reason for the employee’s resignation, such that he or she would have left anyway irrespective of the employer’s conduct, then there has not been a constructive dismissal.[101]Where there are mixed motives the Tribunal must decide whether the employer’s conduct was an effective cause of the resignation. The law relating to the reason for a resignation after a repudiatory breach was reviewed by the EAT (Langstaff P presiding) in Wright v North Ayrshire Council [2014] IRLR 4. If an employee has mixed reasons for resigning it is enough if the repudiatory breach played a part in that decision. It need not be the sole, predominant or effective cause. That is particularly clear from the decision of the Court of Appeal in Nottingham County Council v Meikle [2005] ICR 1. At paragraph 20 of Wright Langstaff P summarised it by saying: “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”[102]An employee who remains in employment whilst attempting to persuade the employer to remedy the breach of contract will not necessarily be taken to have affirmed the contract W E Cox Turner (International)Limited v Crook [1981] IRLR 443.[103]Section 207(A) Trade Union and Labour Relations (Consolidation) Act 1992 provides that, where an employee brings a claim under section 111 Employment Rights Act 1996 for unfair dismissal, an award for compensation can be increased or reduced by up to 25% if the employer has unreasonably failed to comply with the relevant code of practice relating to the resolution of disputes.[104]The relevant code of practice will have been issued either by ACAS or the Secretary of State. ACAS Code of Practice 1: Disciplinary and Grievance Procedures 2015 is a relevant code of practice. The ACAS code is not engaged unless a grievance is raised in writing.[105]The ACAS code provides the following keys to handling grievances in the workplace 1. let the employer know the nature of the grievance 2. hold a meeting with the employee to discuss the grievance 3. allow the employee to be accompanied at the meeting 4. decide on appropriate action 5. allow the employee to take the grievance further if not resolved[106]In relation to deciding on appropriate action the code provides that a decision should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.[107]Employees have the right to be given written particulars of the terms of their employment within 2 months of starting their employment. Section 1 Employment Rights Act 1996 provides that there is requisite information that an employer must provide to an employee. Section 11 Employment Rights Act 1996 provides that an employee may bring a claim to a Tribunal alleging that his or her employer has not complied with these obligations. The employee has a right to a remedy from Tribunal in respect of the section 11 claim, where, when the proceedings were brought the employer was in breach of the duty to give written particulars. Under section 38 Employment Rights Act 1996 the Tribunal may make an award of 2 weeks’ pay unless it would be unjust and inequitable to do so, and it may, if it considers it just and equitable in all the circumstances make an award of 4 weeks’ pay.[108]Schedule 5 to the Employment Act 2002 sets out those complaints which a section 38 claim may attach to. It includes claims for unauthorised deductions from wages under section 13 and 23 Employment Rights Act 1996. Unauthorised deductions[109]Section 13 Employment Rights Act provides: 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.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.[110]Section 27 defines wages:(1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including — (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,(2) ….(3) Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part — (a) be treated as wages of the worker, and (b) be treated as payable to him as such on the day on which the payment is made. Victimisation[111]Victimisation in this context has a specific legal meaning defined by section 27:(1) A person (A) victimises another person (B) if A subjects B to a detriment because - (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[112]If it is shown that a protected act has taken place then the Tribunal will consider what detriments have occurred. Detriment is not defined in the Equality Act 2010 but is considered akin to unfavourable treatment, disadvantage or a “bad thing” happening to the claimant and is to be given the ordinary meaning of the word in the sense that the act complained of is detrimental to the claimant.[113]In Warburton v Chief Constable of Northamptonshire [2022] ICR 925 Griffiths J in the EAT restated the test on detriment: “The key test is: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL applied. Detriment is to be interpreted widely in this context.”[114]If detriment is established then the question arises as to the relationship between the protected act and the detriment. Use of the term causation is to be deprecated. In Warburton the EAT at paragraphs 61 – 75 set out the relevant case law and restate the correct test. It is one of “significant influence”. “The question was whether the protected act had a significant influence on the outcome. Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947 HL, Nagarajan v London Regional Transport [2000] 1 AC 502, Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 and Page v Lord Chancellor [2021] ICR 912 CA were considered and applied. Applying the Law to the Facts Time limits Is the claimant’s complaint of victimisation out of time?[115]The claimant went to ACAS on 30 November 2021. Complaints before 1 September 2021 were therefore out of time. The claimant’s alleged detriments occurred on: a) 17 August 2021 b) 7 October 2021 c) 21- 27 October 2021 d) 18 November 2021 e) 29 November / 1 December 2021 f) ongoing from 7 December 2021 to termination of employment g) ongoing from 14 December 2021 to termination of employment[116]Detriment a) is out of time. The other detriments are in time. Did the out of time detriment form part of a continuing act or would it be just and equitable to extend time?[117]The Tribunal considered that the alleged detriment to the claimant at a), relating to the requirement to provide medical evidence of his condition to Mr Harland, was part of a course of conduct extending over a period of time. The respondent asked for medical evidence in later alleged detriments so that the alleged detriment was of the same kind as in-time acts and formed part of a course of conduct extending over a period of time. There was an ongoing expectation of the respondent that the claimant should have provided medical evidence about his condition so that it could consider how best to support him and about the impact, if any, of his condition on his ability to drive and to obtain a licence.[118]Victimisation Has the Claimant done a protected act?[119]Section 27(2) sets out what amounts to a protected act. PA1: The claimant’s case was that the claimant showing Brian Carter his grievance in person on 17th August 2021 amounted to a protected act. The Tribunal finds that the claimant did not show a grievance document to Mr Carter on 17 August 2021. That day the claimant came to work and was concerned about getting paid for 16 August 2021. He had asked for the handbook and had it sent to him. There are no facts from which the Tribunal could conclude that a document shown to Mr Carter amounted to a protected act. PA2: The claimant’s written grievance of 10 November 2021 was GR6 which related to SC. The claimant said he had been verbally abused in an aggressive manner. The letter does not amount to a protected act within section 27 because it does not make the link that the treatment has been because of a protected characteristic, it makes no link either explicit or implicit to a discrimination complaint. PA3: The claimant’s written grievance of 17 November 2021 (p176-77) is an email in which he asks why a previous complaint (dated 27 September 2021 that Mr Harland had spoken to him in an aggressive and inappropriate manner) was not added to his last grievance. The 17 November email even if the 27 September 2021 complaint is incorporated into it, does not amount to a protected act. It does not make that link between treatment and protected characteristic. It does not complain about discrimination. At its highest it refers to bullying and hurt feelings but does not link that allegation to Equality Act complaint or any protected characteristic. PA4: The claimant’s letter of 24 November 2021 in which the claimant writes asking the respondent to either keep him at home on full pay or alter the start times so that he need not meet SC does not amount to a protected act. It does not raise a complaint about discrimination. PA5: The claimant’s written grievance of 7 December 2021. This amounted to a protected act. The letter is headed in bold text, This is a formal letter of grievance, victimisation, bullying, disability discrimination. The letter goes on to detail the discrimination that the claimant says he has suffered. The specific allegation that brings the letter within the Equality Act is an allegation of failure to make reasonable adjustment for disability. This amounts to a protected act under Section 27 (2) (c) and (d). If the claimant has done a protected act(s), has the claimant been subjected to detriments as a result?[120]In Warburton v Chief Constable of Northamptonshire [2022] ICR 925 Griffiths J in the EAT restated the test on detriment: “The key test is: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL applied. Detriment is to be interpreted widely in this context.”[121]If detriment is established then the question arises as to the relationship between the protected act and the detriment. Detriments must post date the protected act they rely on. Mr Flood described the because of requirement. The Tribunal notes that use of the term “causation” is to be deprecated. In Warburton the EAT at paragraphs 61 – 75 set out the relevant case law and restate the correct test. It is one of “significant influence”. “The question was whether the protected act had a significant influence on the outcome. Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947 HL, Nagarajan v London Regional Transport [2000] 1 AC 502, Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 and Page v Lord Chancellor [2021] ICR 912 CA were considered and applied.[122]The Tribunal asked did the protected act have a significant influence on the detrimental treatment. The only protected act is 7 December 2021. The only detriments that could possibly have happened because a protected act had a significant influence on them are those that post date the protected act and are therefore at (f) and (g). Det F and G[123]If the Tribunal is wrong about that and some of the other complaints amounted to protected acts so that any or all of them preceded detriments then the following detriments fail for the following reasons: Detriment A: On 17 August 2021, the Claimant suddenly being asked by Stuart that he provide a doctor’s letter to see what medication he was on and to have an understanding of what his mental health condition was. The Claimant was surprised by this and immediately said that he was not on medication and did not understand why Stuart was assuming he was.[124]This does not amount to a detriment in law. The claimant had an unjustified sense of grievance about this. The respondent was entitled, and indeed obliged, following Guidance to the Equality Act which states that a duty arises when an employer knew or ought reasonably to have known of a disability to act on that information. The respondent knew the claimant was saying he had mental health problems. It was obliged under the Guidance to find out more about the condition and any impact it may have on his ability to drive.[125]If the Tribunal is wrong about that, then protected act had no significant influence on Mr Harland asking for medical information. Mr Harland asked for the medical note, not because the claimant had shown Mr Carter a grievance (which the Tribunal found did not happen) but because the claimant was telling Mr Harland he had a mental health issue. Detriment B: On 7 October 2021, the Claimant was informed by Brian Carter that his grievance had been dismissed before he had even attended a grievance meeting.[126]This detriment pre-dates the only protected act that the Tribunal has found to have taken place so fails because the protected act cannot have a significant influence on the detriment when it has not happened yet. The Tribunal finds as a fact that Brian Carter did not tell the claimant on or about 7 October 2021 that his grievance would be dismissed, before it had been heard. The Tribunal had directly contradictory evidence on this point. The claimant said it happened, Mr Carter said it did not. Mr Flood cross-examined the claimant on this point and asked why the claimant had not included it in his appeal. The claimant had no credible reason for it not being in his written appeal letter. However, the claimant did raise it at appeal. The notes from the hearing on 14 December 2021 record that the claimant raised this issue. The transcript notes also record this issue. The Tribunal had regard to the chronology of events. The claimant said this happened on 7 October 2021. On 10 October 2021 the claimant sent two grievances to the respondent and did not mention this point. This was a claimant who made many, wide ranging and repeated complaints. If Brian Carter had told him that his grievance would be dismissed the Tribunal finds that the claimant would have put that in writing and added it his grievances promptly and certainly by 10 October 2021. The Tribunal finds that the absence of any written complaint about this, in the context of this claimant who put lots of complaints in writing at that time, means that on the balance of probabilities this did not happen in the way the claimant later recalled it. The Tribunal finds that if there was some discussion about a lawyer having been engaged and grievance outcomes between Mr Carter and the claimant, then that conversation made no material difference to the fairness of the process because Mr Carter was not the decision maker on the grievance or appeal. Detriment C: On or around 21 - 27 October 2021, the Claimant received a disciplinary letter to say that the Claimant was being investigated for gross misconduct on the basis of a loss of trust and confidence, as it was alleged the Claimant had been ‘medically disqualified from driving’ without informing the Respondent.[127]The respondent accepted that this amounted to a detriment. Being subjected to disciplinary proceedings is a detriment. If this detriment had not preceded the protected acts the Tribunal would have gone on to consider whether the fact of the complaints had a significant influence on this decision. The Tribunal would have found that the reason for the disciplinary investigation, accepted by the claimant in cross-examination, was because it was not clear(i) if the claimant had a licence to drive HGV and(ii) if there were any medical conditions attaching to any licence or not and(iii) whether the Traffic Commissioner was allowing the claimant to have a licence and(iv) whether the claimant had been driving lawfully or unlawfully during the long gap. The claimant accepted in response to the question, “you were disciplined as you hadn’t informed the employer that your licence had expired and that from January 2021 you were only driving under the provisions of Section 88 ?” that that was the reason for the disciplinary process. This was a key admission in cross-examination which meant the complaint at detriment C could not have succeeded. As it transpired the licence was granted and shared with the respondent and the disciplinary proceedings did not go ahead. The detriment complaint would have failed, even if there had been an earlier protected act, because the protected act had no significant influence on the decision to undertake a disciplinary investigation. Detriment D: On 18 November 2021, the Claimant received an email from the Respondent to say that they had received ‘constant grievances’ from him over the past few weeks;[128]The email from Mr Carter was not a detriment. The claimant had an unjustified sense of grievance about this email. Mr Carter was showing justifiable irritation at the frequency with which the claimant raised grievances and the overlapping content of those grievances. The Tribunal identified 7 grievances from 26 August to 7 December 2021. Some of the grievances repeated content from earlier grievances, some related to altercations with colleagues and some to complaints about the business. The grievances were hostile in tone and increasingly over the period the claimant said that his trust and confidence in the employer was broken and that he was seeking legal advice and wanting a solution. It seemed to the Tribunal that by the letter of 24 November 2021 in which the claimant said: “I take it from your email that because Brian has stated that I allegedly said I won’t be back and I’m going to sue you that there is no longer a position at M and S Transport for me” that the claimant had decided not to return to work and was pushing the employer to dismiss him.[129]There were, in addition to the 7 grievances the Tribunal identified, letters of complaint that would not in law amount to a grievance so that the Tribunal finds that the respondent was bombarded with correspondences from the claimant during August to November 2021. Mr Towers intervened on 24 November 2021 and told the claimant to stop sending grievances to Mr Carter but to send them to him instead. On 25 November 2021 Mr Towers said that he had appointed an external person to deal with the grievances. Detriment E: From 1 December 2021 onwards, the Respondent insisting that the Claimant drive an 18 tonne vehicle, and sending the Claimant home unpaid without being able to do so.[130]There was no detriment here. The respondent was entitled to require the claimant to do that which he was engaged to do and was paid to do. The claimant was engaged as an HGV driver. He was paid to drive vehicles as reasonably allocated to him by his employer. That included 7.5 tonne and 18 tonne vehicles. The fact that the respondent tried to accommodate his preference for 7.5 tonne so that most of the time, even as much as 80% of the time, the claimant had his preference met, did not erode the respondent’s contractual right to allocate him an 18 tonne vehicle. This finding is at the heart of this case. The claimant has failed to persuade the Tribunal that he had a legal verbal arrangement that he would drive only 7.5 tonne vehicles. It prefers the evidence of the respondent on that point.[131]The respondent was remarkably tolerant of the claimant’s refusal to drive an 18 tonne vehicle in December 2021 in that it allowed this to become a period of unpaid leave. The Tribunal accepts that this was because of the difficult climate of recruitment and retention for HGV drivers. The respondent could have taken a different approach and disciplined and dismissed the claimant for refusing to do his work in December 2021.[132]Even this had been a detriment, the claimant could not establish that a protected act had a significant influence on the instruction. The claimant in crossexamination accepted that he did not know the driving needs of the business in December 2021 and could not say that the instruction was not because there was a genuine need for an 18tonne driver at that time. Detriment F: The Claimant not receiving an outcome to his grievance of 7 December 2021.[133]This detriment came after the protected act of the grievance of 7 December 2021. Not receiving an outcome to a grievance has the potential to be a detriment. The Tribunal looked closely at the factual chronology. The claimant was invited to attend a grievance meeting with Mr O Donohue and attended by Teams on 14 December 2021. The claimant wanted to record the meeting and was allowed to do so and then to produce his own transcript of the recording. Christmas intervened and then for understandable domestic reasons the claimant needed time to get the transcript ready. He said he would produce it within days of 4 January 2022. In the event he got it to Mr O Donohue by 18 January 2022. Mr O Donohue then needed to check content with Mr Carter who was away. Mr Carter appears to have returned by 24 January 2022. The claimant was chasing an outcome to his appeal and had not had it when on 13 February 2022 he resigned. The Tribunal finds that this delay in response was, in the context of the seven grievances and lengthy transcript of the meeting, not an unreasonable amount of time to take to look in to matters and reach a decision. The outcome was then, post resignation, produced on 8 March 2022. The delay was wholly explained by the evidence of Mr O Donohue which the Tribunal accepts. The protected act was not a significant influence on the delay. Putting it simply, Mr O Donohue didn’t delay because the claimant had complained. On the contrary Mr O Donohue was engaged specifically to respond to the grievances and he took time to allow the claimant to produce his version of the notes and to talk to Mr Carter. The detriment complaint fails. Detriment G: The Claimant not receiving a grievance appeal.[134]Being denied an appeal could amount to a detriment but on the facts of this case the claimant had an appeal against his GR1. He lodged GR1 on 26 August, had an investigatory interview on 31 August, had an outcome on 21 October, appealed that outcome (after his disciplinary investigation meeting) on 16 November 2021 and had an appeal meeting on 14 December 2021. The claimant did receive an appeal to the only first instance grievance that was decided. This complaint fails on its facts. Constructive Dismissal Was the Respondent in repudiatory breach of contract? The Claimant relies on the implied term of trust and confidence and alleges the last straw was: On 7 February 2022 the respondent ‘offered’ to discuss the claimant returning to work and ‘his proposal of moving to a 7.5 tonne driver’ despite the claimant already having this in place previously, therefore leaving the claimant feeling that this was disingenuous; and The claimant still not receiving the outcome to his grievance outcome appeal.[135]The Tribunal considered whether individually or cumulatively the respondent’s failure to deal with the claimant’s grievances amounted to a breach of the implied term of mutual trust and confidence.[136]Between 26 August and 7 December 2021 the claimant’s submitted seven grievances. The first grievance went to an investigation into 31 August 202. The outcome of that grievance provided in writing on 21 October 2021. The claimant appealed that outcome on 16 November 2021 but by that time had lodged further grievances. On 24 November 2021 Mr Towers intervened and told the claimant to stop sending grievances to Brian Carter and to send them to him instead. On 25 November 2021 Mr Towers typed the claimant in writing: “In the interests of fairness I have appointed a solicitor who specialises in employment law to go over all the reports and investigations carried out and your grievances to ensure we have dealt with each one professionally and in a fair manner.”[137]Mr O Donohue was appointed and contacted the claimant to arrange a meeting for the 14 December 2021. In reliance on Mr Towers letter the claimant could reasonably expect that Mr O Donohue was going to look at everything; an appeal against grievance one and all of the outstanding grievance issues that had been raised.[138]The Tribunal is concerned that that is not what happened. Mr O’Donoghue’s terms of reference were not provided to the Tribunal. The respondents notes of the 14 December 2021 investigator meeting are short. Mr O’Donoghue says: “I have seen your appeal email regarding a grievance you lodged and they will go through each point one by one.”[139]Mr O’Donoghue appears to believe that he is dealing with a, singular, grievance appeal against grievance one and not the broad remit that Mr Towers had led the claimant to believe would be the case.[140]In January 2022 the claimant produced his transcript notes of the investigatory meeting of 14 December 2021. On 11 January 2022 and again on 24 January 2022, 7 February 2022 and, 8 February 2022 Mr Carter writes to the claimant trying to get him to return to work and have a discussion about his ongoing concerns. It is not clear what Mr O Donoghue was looking at and what in terms of grievance resolution was meant by an offer of discussion of ongoing concerns. Mr Carter offers a meeting to discuss the return to work and offers that the claimant can return on the basis that he will only be asked to driver 7.5 tonne vehicle.[141]The Tribunal considered the claimant’s case that either the delay in the grievance appeal outcome and / or the letter of 7 February 2022 offering the claimant the 7.5 tonne work amounted to a last straw act, taken either individually or together with each of the other complaints about the grievance handling, entitling the claimant to resign.[142]The Tribunal finds that there has been no fundamental breach of contract by the respondent. There has been nothing that crosses the Malik line. The respondent has not acted in a way, without reasonable and proper cause, that was likely to seriously damage or destroy the relationship of trust between the employer and employee.[143]Quite the contrary, the tribunal notes the tolerance shown by the respondent to an employee who was threatening litigation, seeking to pre-empt his own dismissal on 24 November 2022, refusing to do the work he was contracted to do in December 2021 and January 2022 and who had from February 2020, failed to tell his employer that his licence had expired and that he was granted an extension because of COVID, and then failed to tell his employer that he was driving under the provisions of section 88, and then failed to provide his employer with a letter from his GP, so that is employer could be sure that the provisions of section 88 applied to him.[144]The Tribunal finds that the letter of invitation 7 February 2022 was not disingenuous. The Tribunal accepts the evidence of Mr Carter and Mr Towers as to how difficult it was to recruit and retain HGV drivers and this is why the respondent showed such tolerance not only of altercations between drivers, and the way it allowed a cooling off period with unauthorised absence and then their return to work, but specifically tolerance of the claimant’s unreasonable refusal to do the work he was contracted to do in December 2021 January 2022. The letter of 7 February 2022 was a genuine offer to try and bring the claimant back in to drive 7.5 tonne vehicles on 7.5 tonne pay. It was entirely consistent with the respondent’s position that he had been on 18 tonne pay before and therefore required to drive 18 tonnne “ as and when”. The letter did not amount to a breach of contract nor an innocuous last straw act upon which the claimant could rely to treat himself as dismissed. Did the claimant resign as a direct result of the alleged breach?[145]The dismissal complaint, if it had succeed this far, would have failed at this point because the Tribunal finds that the claimant had had an agenda to leave the respondent since 24 November 2022 and that he resigned when he did, not because of the delay in getting his grievances addressed or the outcome of his grievance appeal, but because he was being pushed to return to work and was being offered exactly what he had asked for.[146]The claimant had on numerous occasions threatened litigation, had tried to pre-empt his own dismissal on 24 November 2022, had gone to ACAS on 30 November 2021, applied for benefits in January 2022 and refused to attend the meeting to discuss a return to work on the terms he had been seeking in late January and early February 2022. The Tribunal finds that if there had been a breach or breaches upon which he was entitled to rely to treat himself as dismissed, he did not resign because of them. Unauthorised deduction from wages Has the claimant been subjected to unauthorised deductions on 16 August 2021 and from 1 December 2021 onwards? (Claimant to clarify in his schedule of loss the payments alleges were deducted)[147]The Tribunal finds that the terms of the claimant’s contract were that if he refused to perform work that was allocated to him then he was treated as being on unpaid leave. Having refused to drive an 18 tonne vehicle in December and January, the claimant’s contract subsisted during that period, and he was, as soon as his employer had advised in writing, unpaid because he was on unauthorised absence from work. Applying section 13 there were no wages properly payable to the claimant during December and January because he was refusing to do any work during that period and the established term of his contract was (for example during colling off periods) that if you don’t work you don’t get paid.[148]On 16 August 2021 the claimant attended work ready, willing and able to perform his duties. He was not paid for that day. Wages were properly payable to him for 16 August 2021. He had been off sick on 13 August 2021. He had not notified the employer of sickness absence on 16 August 2021 so it could assume he would attend work.[149]The respondent asked its employees, as a courtesy, to let it know if they were to return to work after sickness absence by 3 PM on the day before their return. This was so that it could avoid incurring the cost of an agency driver to cover their absence. The claimant received a phone call at 14:05 on 13 August 2021 from the work mobile phone. He couldn’t take the call but replied, through his wife, within two minutes by text to say that he would be in work on the 16th.[150]In order to deduct pay from the claimant on 16 August 2021 the respondent would have to show a legal entitlement to do so. It has not produced a contract of employment with the signed deductions clause allowing it to deduct pay where an employee has failed to provide notice of return to work by telephone on the preceding working day before 3pm. Even if it had, in this case on the facts the Tribunal finds in the claimant’s favour that he had signalled his intention to return to work at 14:07 to the same phone that had contacted him.[151]Accordingly, a day’s pay is due to the claimant for 16 August 2021. Section 1 Employment Rights Act[152]Section 1 Employment Rights Act 1996 imposes a duty on an employer to give a statement of key terms and conditions. If on commencement of Tribunal proceedings, in this case for unauthorised deductions from pay, the employer cannot show that it has provided that statement, then the Tribunal may, if the unauthorised deductions complaint has succeeded, make an award of two weeks’ pay to the employee for the employer’s failure to provide the section 1 statement.[153]The respondent’s witnesses gave oral evidence that a contract had been provided to the claimant when he started work but that it is common for drivers to take those contracts away and not sign them. The Tribunal accepts that to be the case and that despite chasing up those employees the respondent often does not hold a signed contract for its staff. Further, the Tribunal accepts the oral evidence of the respondent’s witnesses, that the claimant was provided with the contract to sign in late November 2021 and that again he took it away and did not sign it. The claimant corroborates this position. He says he was provided with the contract but did not sign it. Neither party has produced a copy of either the first contract or the November 2021 contract. In those circumstances the respondent has not discharged its burden of proof to show us that the information that is required to give under section 1 Employment Rights Act 1996 had been given. The Tribunal has no way of knowing whether or not either of those contracts which were provided met the requirements of section 1. The Tribunal notes the respondent is a small privately owned business and that it is often the case that documentation in small businesses is not exactly as an employment lawyer would want it to be. However, it is surprising in this case that the respondent has not been able to produce copies of the contracts that it says, and he agrees, it provided to the claimant even though he did not sign and return them.[154]Accordingly, this part of the claimant’s complaint succeeds.
Conclusion
[155]The claimant’s complaint for victimisation fails.[156]The claimant’s complaint of constructive unfair dismissal fails.[157]The claimant’s claim for unauthorised deduction succeeds in part in relation to his pay for 16 August 2021 and that complaint having succeeded the claimant’s complaint that he has not been provided with a statement of terms and conditions under section 1 ERA 1996 succeeds.[158]An award of £ 990 was made on 26 January 2024 and judgment sent to the parties on 1 February 2024.