Mr M MacEley YoungClaimantAngus Fire LtdRespondent
Before
Employment Judge SlaterMiss K Barry (instructed by counsel) for respondentDate 23 April 2019
JUDGMENT
[1]The complaints of detriment because of making a protected disclosure are dismissed on withdrawal by the claimant.[2]The complaints of disability discrimination numbered 1 and 7 in the list of complaints are dismissed on withdrawal by the claimant.[3]The complaint of breach of contract in relation to a claim for occupational sick pay is dismissed on withdrawal by the claimant.[4]The tribunal has no jurisdiction to consider the complaints of disability discrimination numbered 4, 5, 8, 9, 10 and 11 in the list of complaints as the complaints were presented out of time.[5]The other complaints of disability discrimination are not well founded.[6]The respondent was in breach of contract by failing to pay the claimant a payment in lieu of the amount of holiday he would have been entitled to if he had remained in employment with the respondent until 30 April 2018 and the respondent is ordered to pay to the claimant damages of £2101.60 in respect of that breach.[7]The complaint of breach of contract in respect of not repaying an amount mistakenly deducted from the claimant’s pay and paid to the CSA is not well founded.[8]The complaint of breach of contract in respect of not enrolling the claimant in the company pension scheme is not well founded.[9]The complaint of unfair dismissal is not well founded. JUDGMENT having been sent to the parties on 22 March 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant brought complaints of unfair dismissal and disability discrimination. The complaints of disability discrimination were complaints of direct discrimination, discrimination arising from disability, harassment and failure to make reasonable adjustments. There were also complaints of breach of contract in respect of a number of matters. The claim had included complaints of detriment because of making a protected disclosure but these were withdrawn on 13 March and were dismissed on withdrawal by the claimant. There was also a complaint of breach of contract in respect of occupational sick pay which was withdrawn on 15 March and was dismissed on withdrawal by the claimant.[2]The issues in relation to the complaints we were to decide were set out in an agreed List of Issues which was amended as the case proceeded. The respondent conceded disability on the 15 March in relation to anxiety and depression at relevant times.[3]The complaints of disability discrimination were set out in a table appended to the list of issues. During the course of the hearing, two of these complaints were withdrawn and the dates for two of the remaining complaints were amended. The table as amended during the course of the hearing is attached as an Annex to these reasons.[4]The issues which remained for the tribunal to determine were as follows: Unfair dismissala. What was the reason for dismissal (the respondent submits voluntary redundancy)b. Was the decision to dismiss fair having regard to s.98(4) Employment Rights Act 1996 (ERA)? Discrimination on the grounds of alleged disabilityc. Complaints of disability discrimination (see Annex)d. Direct discrimination – i. Did the respondent subject the claimant to a detriment? ii. Did the respondent treat the claimant less favourably than it treated or would have treated others in the same material circumstances? iii. If so, was this less favourable treatment because of disability?e. Discrimination arising from disability – i. Did the respondent treat the claimant unfavourably because of something arising in consequence of the disability? ii. If so, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim? iii. Alternatively, has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had a disability?f. Harassment – i. Did the respondent engage in unwanted conduct? ii. If so, was this unwanted conduct related to disability? iii. Did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?g. Failure to make reasonable adjustments – i. Did the respondent apply a provision, criterion and/or practice (PCP) generally. ii. Did the application of any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled? iii. Did the respondent take such steps as were reasonable to avoid the disadvantage? iv. Did the respondent not know, or could the respondent not be reasonably expected to know that the claimant had a disability or was likely to be placed at the disadvantage set out above? Other claims – breach of contract and/or unlawful deduction from wagesh. Unpaid holiday payi. Deduction for direct earnings orderj. Failure to enrol the claimant in the company pension scheme. Jurisdictionk. Are the claimant’s claims in time?l. Do the alleged acts of discrimination extend over a period (a continuing act) or are they discrete acts?m. Is it just and equitable for the employment tribunal to hear the claimant’s claims?n. Does the employment tribunal have jurisdiction to hear the claimant’s claims of disability discrimination?
Facts
[5]The claimant was offered work with the respondent on 11 June 2014 by email. He then received an offer letter dated 18 June. He was to work in IT system support.[6]On 25 June 2014, the claimant provided medical information to the respondent.[7]The claimant started his employment with the respondent on 14 July 2014 and a new employee checklist was completed. In the claimant’s witness statement, he says he was provided with a company handbook but, under cross examination, said this was never issued to him. However, the respondents’ documents indicate that the handbook was issued to the claimant. At the grievance hearing on 4 July 2017, the claimant was quoting from the handbook so clearly had a copy of it at that point, which was prior to disclosure in these proceedings. We find, on the balance of probabilities, that the claimant was issued with a company handbook. The handbook was in the name of Kidde Products Limited. We were told that the respondents separated from the Kidde company in 2013 and there had been discussions with trade union and employee representatives about a replacement handbook but this had still not been agreed by the time of this hearing. We note that the respondent’s in-house counsel’s correspondence, as late as January 2018, was suggesting that the 2011 version of the handbook remained in force at relevant times. The amended response dated August 2018 does not say that the handbook was no longer in force.[8]We accept the respondent’s evidence that holiday pay has not been paid to anyone in accordance with the “surplus staff” provision in the handbook since 2013.[9]The claimant’s line manager was Simon Mulenga. Simon Mulenga and the claimant provided IT support in the UK. There was also somebody providing IT support based in the US.[10]On 24 September 2014, the respondent made a referral to occupational health, prompted by the claimant’s answers on the medical questionnaire which included, amongst other things, reference to depression and anxiety. An occupational health report was obtained on 3 October 2014. This referred to the claimant having explained he had a history of depression and anxiety but that he usually managed the symptoms well through lifestyle. The report made reference to some personal issues which had affected the claimant recently and that he had historically had suicidal thoughts. He was recorded as having explained that he managed generally well within work but there were some issues with memory. The report said that he was fit for his current job. The occupational health adviser suggested that a stress risk assessment should be carried out and said that the claimant was possibly covered by the Equality Act.[11]The claimant completed a three-month probationary period in October 2014 and the form for the end of the probationary period, which was completed in November, contained positive comments about the claimant.[12]For reasons not explained to us, the claimant completed a further application form in November 2014 and, on this form, he indicated that he had a disability or health condition which might require adjustment; he referred to severe depression, anxiety and a back injury.[13]On 12 December 2014, the claimant sent an email to HR and to Mr Mulenga saying that he had recently received divorce papers and that this may be a little more stressful than he imagined. He apologised for any crankiness or errors that might slip through and said he would make a doctor’s appointment if he felt things got worse. He said he was ok for now but had found that he was sleeping longer in the mornings so was in later than usual.[14]On 12 December 2015, the claimant sent Mr Mulenga an email about his interaction with another employee and about perceiving a threat.[15]In February 2016, the Help, or Service, Desk was set up. This was initially to provide visibility about what work needed to be done. We accept Mr Mulenga’s evidence that his intention was that, at a later stage, they would put in a performance matrix and this could possibly then justify requests for further staff. People were encouraged to log requests on the Helpdesk but Mr Mulenga would respond to some simple requests for quick fixes like password resets without requiring them to log the request on the Helpdesk.[16]On 27 May 2016, the claimant sent an email to Mr Mulenga telling him about a friend who had committed suicide, Mr Mulenga sent a sympathetic response and the claimant replied, including the statement that “work stuff is cool”.[17]On 31 May 2016, the claimant sent what he described as a mind map to Mr Mulenga about the way he was feeling. He referred to various areas of frustration. Issues raised in the mind map included lack of consistent use of the Helpdesk, being asked to do things he thought illegal, lack of policies and procedures, work related stress, depression and anxiety. Mr Mulenga said he was “blown away” by what the claimant had written; he did not realise that the claimant had all of this in his head. He responded to the claimant, writing that he would schedule a meeting with him.[18]In July or August 2016, the claimant alleges that Lynda Guest said to Mr Mulenga: “Why is not Matt not running around like he used to? We need to get him back to running around”. The claimant said that Mr Mulenga told him about this. Lynda Guest and Mr Mulenga were not asked about this in cross examination. We find that this may have been said; it would be consistent with Lynda Guest’s evidence that she had planned meetings to speak to Mr Mulenga about concerns about the claimant. Mr Mulenga told her that she needed to speak to HR and HR told her that there were issues which she understood to be of a personal nature, without knowing the detail of these, so they did not take any performance action. The claimant’s witness statement contains no evidence about the impact he says hearing about this alleged comment had on him but, under cross examination, said this put undue pressure on him.[19]In August 2016, the claimant requested a further referral to occupational health. A referral was made in September. The referral sheet noted that the claimant had requested this referral due to a recurrence of anxiety and stress, possibly linked to internal and external factors.[20]On 26 September 2016, the claimant sent an email to Mr Mulenga concerning principally his pay, giving justification for a pay increase he thought he should receive. He also raised issues about the service desk use not being fully supported but wrote that his job completion rate remained at fixing 95% of jobs within two hours.[21]There was a further occupational health report on 4 October 2016, after a telephone assessment. This noted that the claimant was currently self-managing his symptoms but recommended some form of talking therapy. It also recommended a stress risk assessment be done, and recommended that there be one to one meetings between management and the claimant to monitor progress, highlight any issues and make any necessary adjustments.[22]On 4 October 2016, the claimant sent an email to Yolandie Moore, who was in HR at the time, saying that he was not impressed with the BUPA assessment. He referred to work stresses and he attached the mind map which he had previously sent to Mr Mulenga. He wrote that he had not been to see his GP at that time.[23]At this stage, the claimant was taking natural herbal remedies. He did not take anti-depressants during his employment with the respondent until around March 2017.[24]Sometime after the telephone assessment, Michael Houldsworth, Occupational Health Manager, made a comment to the claimant in front of other people about the cost of the telephone assessment. We accept the claimant’s evidence in his witness statement that the comment was along the lines of “I’ve received a bill for £500 for you for a telephone call, I hope it was worth it”. We do not accept, as suggested by the claimant only in cross examination, that Mr Houldsworth expressly mentioned BUPA. Had he made express reference to that, we consider the claimant would have mentioned this in his witness statement. The claimant did not raise this comment as a concern until after he left the respondent’s employment.[25]The claimant had a meeting with Yolandie Moore on 12 October 2016. The next day, the claimant sent an email to Yolandie Moore in which he wrote “if you feel a need to disclose my medical condition to SMT or managers if it helps with adjustments or work out misunderstandings please do so how you see fit, I feel that data protection can be restrictive as well as protective sometimes”.[26]The claimant completed a stress risk assessment which was then discussed with Mr Mulenga and sent to Yolandie Moore on 21 October. The claimant raised a number of matters in this about concern about users wanting their jobs done instantaneously, and what he considered to be unreasonable constant demands of users. He recorded that Mr Mulenga had always allowed him to support the users in his style but referred to his type of support being pro-active rather than reactive. He wrote that flexi time was good for him but referred to there being talk about removing this and that he saw flexible working as a reasonable adjustment. He also referred to a comment having been made about why was he not running around like he used to, although he did not identify who had said this. He said the answer to that was that he did not need to as things were managed centrally. The claimant referred to being happy to do things outside of his contractual hours but said that he lost a lot of hours a month due to this.[27]On 2 November 2016, Yolandie Moore sent the claimant an email asking to arrange a time to discuss the stress risk assessment. On 11 November, the claimant asked to postpone this discussion. On 18 November, the claimant emailed Yolandie Moore about the proposed meeting on 21 November, saying that he needed to make a decision on a few things before proceeding with that meeting.[28]On 22 November, the claimant declined the catch-up meeting with Yolandie Moore and said that he was going to be looking for alternative employment. He said he had tried hard to give good support to users within the business and set up a working reliable support system but that there had been resistance from every corner while trying to implement this. He said he had been working long hours for the last two years and had been taking all sorts of abuse, both to his face and behind his back. He wrote that he had to fight every step of the way to get things done properly and logically for the benefit of the company and its users.[29]On 28 November 2016, the claimant started a period of five days’ sick leave with stress. This was the first time that the claimant had been off work from the respondent’s employment because of stress.[30]On 29 November 2016, Mr Mulenga sent an email to the claimant saying to contact him if he needed anything and said not to worry about work. The claimant replied the same day, saying that he was going through a low spell.[31]During the claimant’s absence on sick leave, Mr Mulenga went through all the open requests on the help desk with the claimant’s name on them. He checked with users whether the work was still needed and assessed whether work was required or what he described in evidence as “a wish” i.e. something that would be nice to do, but not needed. He closed down 80% of the jobs as a result of conversations with users or deciding the work did not need to be done. The aim was to clear the help desk for the claimant’s return to work. Anyone could access the system to see why a job had been closed.[32]On 6 December 2016, the claimant emailed Yolandie Moore asking to be removed from “the process”. He referred to requests he had made to bring his pay in line with other companies or to a reasonable level. He wrote that he felt he had not been supported in his endeavour to provide a good level of support with implementing suggestions or direction. He made a reference to a case about reasonable adjustments, although he did not explain the relevance of this to his situation. He said he did not agree with fixes as they included deleting or just closing service desk tickets and he wrote that, over the previous eighteen months, he felt he had been constantly fighting users to use the system so it helped them, management to implement proper procedures and systems and even follow them, to be able to do the job to the best of his ability, and that he should not be having to do that.[33]On 14 December, the claimant emailed Yolandie Moore. He wrote that he had been to his GP and been referred for a psychiatric evaluation.[34]The claimant met with Yolandie Moore on 20 December 2016. She proposed making a reference to occupational health to find out if he was disabled within the meaning of the Equality Act and about reasonable adjustments. The claimant said in evidence that he did not like the tone of Yolandie Moore’s voice. The claimant has made an allegation that Yolandie Moore told him that the respondent had no evidence of a disability from him. From the claimant’s witness statement and answers in cross examination, it appears this allegation relates to Yolandie Moore allegedly telling him that epilepsy when the claimant was a child does not count as a disability. An allegation about a comment about epilepsy was not dealt with in the cross examination of Yolandie Moore. From Yolandie Moore’s witness statement, she appears to have understood the allegation in the list of complaints to be about the claimant’s current conditions and not past epilepsy. If Yolandie Moore did make the comment about epilepsy as a child not counting as a disability, it appears she would have been making a comment which was likely to be accurate. The matter of the epilepsy was irrelevant to the current work situation and the claimant’s state of health. However, if it were necessary for us to find whether the comment was made, we would find on the balance of probabilities that the claimant has not satisfied us that it was made. It is clear by the reference to occupational health that Yolandie Moore was not making any comment on whether the claimant’s current conditions meant that he was disabled or not. The occupational health referral was to find this out amongst other things. The referral to occupational health was made on 21 December. The referral included the statement that the claimant believed he was covered under the Disability Act and that the company may need to make reasonable adjustments for him at work. They asked for advice as to whether he was covered by the Act and as to what reasonable adjustments the company could make.[35]The claimant had previously expressed concern about the previous assessment being by telephone so Yolandie Moore wrote, requesting that the occupational health providers contact her directly as the claimant did not want another telephone assessment.[36]The claimant said in cross examination that he did not object to some work being taken off him but objected to how it was done. There is a dispute between the claimant and Mr Mulenga as to whether Mr Mulenga took work off the claimant in front of a user. We do not consider it necessary to decide whether that was the case because this was not the allegation before the Tribunal, which is that of taking work off the claimant without telling him. We find it more likely than not, given the good and informal relationship between them, that Mr Mulenga told the claimant in general terms what he had done during the claimant’s absence. He did not tell the claimant he had closed particular jobs but the claimant could have looked on the system and found this out, and the reasons for closing particular jobs. Mr Mulenga had explained throughout the claimant’s employment that, just because work was on the system, the claimant should not regard it as his work.[37]On 11 January 2017, emails were exchanged regarding a proposed meeting to discuss the claimant’s email of 6 December. The claimant wrote to Yolandie Moore that he was feeling threatened by everyone and everything. Yolandie Moore replied, saying that she was sorry that he was going through this tough time and suggested that he see how he felt on Friday and, if it was too much, they would postpone the meeting. She wrote that it was genuinely a meeting to try and assist the claimant and not to feel that there was a hidden agenda or any pressure. She wrote that, if the thought of the meeting was causing him further anxiety, they could postpone it until after his call with IAPT.[38]In the event, the proposed meeting to discuss the email of 6 December was postponed from 13 January 2017 because, due to snow, Mr Mulenga was working at home that day.[39]Yolandie Moore had a catch-up meeting with the claimant on 23 January 2017. The claimant says that the points Yolandie Moore put forward in her subsequent email were not agreed and that points that he made were not taken into consideration but he did not make further suggestions because he had given up. We find that there was a genuine attempt from Yolandie Moore to attempt to address points arising from the Stress Risk Assessment. The claimant emailed following the meeting asking for a copy of what was actioned at that catch-up meeting. Yolandie Moore sent points from that meeting on 2 February.[40]There had been a date set for an occupational health meeting on 1 February but this was postponed by the claimant to 23 February because he had an emergency. The occupational report was produced on 24 February and received by the respondent some time before 9 March.[41]The claimant has made an allegation that, in February 2017, Paul Williams, Yolandie Moore and Mr Mulenga expected the claimant to do things improperly. There is no evidence that, in February 2017, Mr Williams expected the claimant to do anything improperly. The most relevant evidence to this allegation appears to have been about comments allegedly made by Mr Williams in relation to flexi time but this was at a meeting which is dated in the index to the bundle as being July 2016. There is a transcript of a recording taken by the claimant at this meeting. The comment which the claimant alleges in paragraph 90 of his witness statement to have been made by Mr Williams was “legal doesn’t like me saying this, you may or may not know that I don’t like flexitime”. This quote does not correspond to what is written in the transcript. It is unclear to us what Mr Williams is speaking about at the relevant point in the transcript. However, in neither version of his comment does it appear that Mr Williams is expecting the claimant to do anything improper.[42]In relation to Yolandie Moore, from the explanation given by the claimant in cross examination, it appears that the allegation relates to Yolandie Moore telling the claimant to do what Mr Mulenga says. We are not satisfied that Yolandie Moore told the claimant to do what he was told even if it meant poor quality, but we accept that the claimant considered he was not able to do work in a way he considered best and to provide his best quality work. The claimant was unable to explain in cross examination how what Ms Moore said related to disability.[43]In relation to Mr Mulenga, there is no evidence in the claimant’s witness statement to support the allegation that Mr Mulenga required him to do things improperly. In cross examination, the claimant explained that he did not think Mr Mulenga was following proper systems; installing systems and not testing them.[44]On 9 March 2017, Sara Erasmus, who had taken over from Yolandie Moore in HR, met the claimant. They went through recommendations in the occupational health report. It is agreed that the claimant said he was now working 8.30 to 4.30. They agreed that the stress risk assessment should be redone and that there would then be a meeting to discuss the points arising. There was a long discussion about the claimant’s working time. The claimant said that workload was currently manageable and referred to Mr Mulenga taking on some of the workload. Sara Erasmus discussed with the claimant the possibility of obtaining a report from the claimant’s GP and explained his rights to him, saying that he did not have to give permission. Sara Erasmus then confirmed in writing a request to contact the claimant’s GP. We accept her evidence that she felt it would be useful to obtain information from the GP to try to help the claimant because a GP has a more intimate relationship with the person than an occupational health assessessor.[45]On 14 March 2017, the claimant was signed off work for three weeks with depression. He went to see Sara Erasmus that day, who asked if there was anything the respondent could do to support him.[46]There were emails on 14 March between Mr Mulenga and Lynda Guest about how to handle email requests sent to the claimant during his absence. They discussed sending an email to users about sending requests to the help desk.[47]On 15 March, Sara Erasmus met with Mr Mulenga about the claimant’s performance levels. It is clear from the notes of this meeting that there were some performance concerns at this stage; they considered the claimant’s performance had dipped in recent times. Mr Mulenga said that any performance concerns were around the claimant’s attitude to users and the way he managed or responded to the requests. He reported that the claimant tended to prioritise projects rather than day to day support issues. Lynda Guest said in evidence that she was aware there were some concerns about the claimant’s performance but she was made aware by HR that there were some issues that HR were dealing with so no performance action was appropriate.[48]On 3 April 2017, the claimant sent an email to Sara Erasmus saying his GP had signed him off on a phased return to work and that he was now on antidepressants.[49]We find it was normal practice to hold a return to work meeting soon after a person’s return to work. In this case, there was a need to sort out the details of the phased return to work recommended by the claimant’s GP before the claimant could start his normal duties. The claimant had a return to work interview with Sara Erasmus on 4 April. The claimant covertly recorded this meeting. The claimant makes an allegation that Sara Erasmus “smirked” in this meeting. The claimant gave no evidence to support this allegation in his witness statement. However, in his grievance of 13 June 2017, he made the allegation so we accept that, by the stage of 30 June, it was the claimant’s recollection and perception that Sara Erasmus had “smirked”. However, the claimant has not satisfied us on a balance of probabilities that Sara Erasmus did, as a matter of fact, “smirk” or act in any inappropriate manner. The claimant went to walk out of the meeting at one point but Sara Erasmus persuaded him to stay and to make arrangements for his phased return to work.[50]Following the meeting, the following day, Sara Erasmus sent an email to the claimant. She invited the claimant to schedule another meeting if he wanted to discuss an alternative plan.[51]On 5 April, the respondent contacted the claimant’s GP with the claimant’s consent.[52]The claimant said in cross examination that he was given nothing to do on his return to work. We reject this evidence which was not contained in the claimant’s witness statement. There was work on the help desk which the claimant could pick up as he felt able to do so. There was no pressure from Mr Mulenga to do any particular job or any particular amount of work. The claimant’s email of 10 April refers to him being on restricted duties rather than doing no work.[53]On 10 and 11 April, there were emails between the claimant and Sara Erasmus about when he should redo the stress risk assessment. Sara Erasmus said to do the questions now as a snapshot of what he was doing.[54]On 13 April, the claimant’s GP wrote to the respondent. The GP confirmed that the claimant had a history of depression in the past and gave some details about his medical history. In relation to a phased return to work, she suggested that the claimant should not have too many duties that required immediate responses or complex organisational tasks as his concentration may be affected by his mood and he should be given tasks that he could complete easily so this would improve his self-esteem and ability to continue with increasing levels of work. The GP said she did not think that the claimant’s condition would stop him being able to deal with any individual problem but he may have difficulty in dealing with a lot of problems at once. She gave the view that being able to work would be a very important part of the claimant’s overall treatment and she would not wish him to be signed off work completely. She did not see why he could not continue with his current job as long as his workload was monitored.[55]The claimant completed a further stress risk assessment on 26 April. Comments included that he was following what he had been told, which is that people would have to wait and complain if they thought it was not done fast enough. He referred to work having been taken from him whilst he was in the middle of things. He made a reference to the employee handbook. He raised as an issue, the attitude of human resources and the way that his illness had been dealt with. He wrote that he felt he had been blamed, insulted, belittled, humiliated and spoken down to. He wrote that there had been a distinct lack of respect and understanding of how the illness affected him and policies and procedures ignored or not understood and the problems being generated from that blamed on him.[56]The claimant was given paid time off to attend therapy.[57]On 8 June 2017, there was an announcement of an intention to make up to 30 positions redundant. People were invited to notify HR if they were interested in voluntary redundancy. On 12 June, the claimant made a request for details of the voluntary redundancy package and figures were sent to him on 14 June. The claimant raised queries about these figures. He submitted an application for voluntary redundancy on 15 June.[58]On 20 June, the claimant had an informal chat with Lynda Guest in the brew room. She wanted to find out why the claimant had applied and to make sure that this was what he wanted. She knew that there were some health issues but did not know the details. The claimant explained to her that he had been suffering with stress for a number of months caused by personal circumstances and it was not helped by his role in the business. He said he had been working with his doctors and HR to improve the business situation so his health could have a chance to recover, but he felt it was not getting him anywhere. He said the redundancy package would help to ease some of his financial burden left over from his time in the South. Lynda Guest asked what he would do if they accepted his application. He said he was thinking that, as this was the second frontline IT job that had not worked out, maybe he should consider a career change to more back-office IT or expanding his side line business activities that he was operating alongside his fulltime job with the respondent. Lynda Guest asked if he was really sure he wanted to continue with voluntary redundancy and he said he was. He had discussed it with his doctor who agreed it was the best thing to allow him time to sort things out and preserve his health. The respondent had not been looking to reduce the numbers in IT but, based on this discussion, Lynda Guest decided to support the claimant’s request for voluntary redundancy.[59]There was then a formal discussion between the claimant and Lynda Guest on 22 June. Lynda Guest asked if he was still sure that he wanted to apply for voluntary redundancy; the claimant said he was. Lynda Guest explained that they had not anticipated making his position redundant but, given his circumstances, if he really wanted to continue with the process they would accept his request. The claimant reiterated his desire to take voluntary redundancy. They agreed the claimant would not attend work for the next few days to consider his options.[60]On 23 June 2017, the claimant was sent a letter informing him that his application for voluntary redundancy was accepted. He was given notice of termination with an effective date of termination of 30 June 2017. The letter was based on a standard letter. We find that the reference made to pensions contributions in this letter was made in error since the claimant was not a member of the scheme.[61]There is in the bundle a grievance letter dated 23 June. However, the respondent questioned whether they had received it at that time. It appears it may have been part of a package sent to Andy Leach on 30 June.[62]On 25 June 2017, the claimant made a complaint about the redundancy process and payment. The following day Elizabeth Cox sent an email, offering to go through the calculations with the claimant.[63]On 27 June, the claimant sent a signed form dated 26 June accepting voluntary redundancy.[64]On 28 June, Elizabeth Cox, in an email, asked in respect of the claimant’s email of 25 June, if the claimant wished to appeal against redundancy. The claimant replied on 28 June saying he was not appealing acceptance of his redundancy but making complaints about the process.[65]On 29 June, Elizabeth Cox sent a further email asking whether the claimant wanted to appeal against the decision to be made voluntarily redundant. She offered to request an early settlement payment. The claimant wrote on 29 June that he did not wish to appeal against the confirmation of voluntary redundancy as he had requested it.[66]On 30 June Elizabeth Cox made a further offer to see if payment could be made earlier and the claimant requested that this be done.[67]On 30 June 2017, the claimant sent an email to Lynda Guest thanking her and raising an issue about being owed around £700 and saying that he had sent an official grievance. Lynda Guest offered on the same day to discuss the issues with the claimant and see if she could resolve matters without a formal grievance.[68]The formal grievance was sent to Andy Leach on 30 June 2017. The claimant was invited to attend a grievance hearing on 4 July. He attended that meeting, which he covertly recorded. The crux of the issue was stated at that meeting by the claimant to be that he did not think he had been paid enough in respect of notice pay and redundancy pay. He also raised the CSA deduction matter and the holiday entitlement for surplus staff, quoting from the employee handbook.[69]On 21 July 2017, the claimant notified ACAS of a possible claim.[70]The grievance outcome was by letter of 27 July. The claimant was paid an additional amount in respect of redundancy pay and notice pay.[71]The ACAS certificate was sent out on 31 August 2017 and the claim to this Tribunal was presented on 28 September.[72]We now deal with matters which do not fit easily within a chronological approach to the facts.[73]There was an allegation that HR shared information with managers or did not share information with managers as required. We find that HR shared information with managers to the extent needed. Mr Mulenga, the claimant’s line manager, knew that the claimant was suffering from stress and anxiety and knew enough to be able to assist the claimant. Lynda Guest knew that there were issues but not the precise nature of these.[74]The respondent had a flexi time system. There was a three-month trial of changes from 1 March 2016, there being a change to the overall time, the lunch break and that a maximum of eight hours could be taken in a two-month accounting period. In the stress risk assessment in October 2016, the claimant wrote that flexi time was good for him and expressed concern about the possible removal of the system. In his witness statement, the claimant said that changes meant that he could not take flexi time to balance his workload. There is no evidence in the claimant’s witness statement in support of a complaint that he did not want to take flexi time because this would leave the department short staffed. When asked about this complaint in cross examination, he said he would have to come back to that but never provided an explanation of how this complaint was put.[75]There is nothing in the claimant’s witness statement about the matter of apprentices. In cross examination, he said there had been a discussion with Mr Mulenga in 2016 and Mr Mulenga had said that justification for an apprentice would come from the help desk. We accept the respondent’s evidence that no apprentices were taken on by the respondent until 2018 and even then, none were taken on in IT. We accept Mr Mulenga’s view was that there was no compelling business case for an apprentice in IT.[76]The respondent was making deductions from pay and payments owed to the CSA as required by an Order. However, the respondent made some mistakes in the deductions: one amount was paid back but they did not repay the other amount, acting on advice from the CSA that the claimant had to seek repayment from the CSA. The claimant got contradictory advice from the CSA as to whether the employer or the CSA should repay that amount.[77]It is clear from the documents which went out when the claimant joined the company that the claimant had to apply to join the pension scheme if he wished to do so and that he, and then the employer, would both make contributions to the scheme if he joined. There were no contributions for pension indicated on the claimant’s payslips. We consider it inconceivable that the claimant would not have noticed that there were no deductions and contributions for pension, given the attention that the claimant paid to figures, for example the CSA deductions and then his notice pay. We found that the mention of pension contributions in the termination letter was clearly made in error.[78]In relation to holiday, we found that the hand book was issued to the claimant and that the hand book in the bundle remained the relevant version during the claimant’s employment up to and including the time when he was dismissed under terms of voluntary redundancy. The hand book contained the following clause:- “Holiday entitlement on leaving the company Surplus Staff “When staff employees have to leave the company because of redundancy they will be granted either the balance of their annual holiday to which they would have been entitled if they remained with the company during the period ending on the next 30th April or payment in lieu thereof”.[79]We accepted the respondent’s evidence that no such payment had, in fact, been made since 2013. This clause had not been revoked and the hand book had not been revoked although there had been ongoing discussions with trade unions and employee representatives about a replacement handbook. Submissions[80]Both representatives made oral submissions.[81]Miss Barry’s submissions on behalf of the respondent were, in summary, as follows. The respondent conceded that the claimant was disabled by reason of anxiety and depression at relevant times. The respondent contended that the respondent only had this knowledge when they received the report of February 2017.[82]The complaints of failure to make reasonable adjustments related to continuing acts. The other complaints of discrimination related to discrete events which were not linked. There were a number which were out of time.[83]In relation to complaint number 2, the definition of harassment was not met. The decision not to share the information did not relate to disability. It did not have the purpose or requisite effect and it would not be reasonable for it to have that effect.[84]In relation to complaint number 3, there was no factual basis for the allegation. Even if there were failures in relation to the notes, there was no evidence documentation was prepared as it was on grounds of the claimant’s disability. This was not unfavourable treatment and did not arise in consequence of the claimant’s disability.[85]Complaint number 4 was out of time. It was not just and equitable to consider it out of time. The comment was not made on grounds of disability. It was not unfavourable treatment and did not arise in consequence of disability. The definition of harassment was not met. We do not even know if anyone overheard the comment.[86]Complaint number 5 was out of time. The allegation was not put to Lynda Guest. Even on the basis of the claimant’s witness statement, the complaint was not made out. It does not meet the definition of harassment.[87]Complaint number 6 was said to be ongoing so no time limit issue is raised, although two dates were given. The allegation is factually incorrect. The claimant’s complaint in evidence was not what was put in the list of issues. The tribunal should focus on the way the allegation was put in the list of issues. This was not unfavourable treatment. The treatment did not arise in consequence of disability.[88]Complaint number 8 is out of time. This relates to a discussion about epilepsy. Yolandie Moore made a legitimate point that, if the claimant had had this as a child, this may not amount to a disability. The claimant was not relying in this case on epilepsy as a disability. This was not unfavourable treatment. It did not arise in consequence of disability.[89]Complaint number 9 is out of time. In any event, there was no evidence the claimant was expected to do things improperly. This did not arise in consequence of the claimant’s disability.[90]In relation to complaint number 10, Sara Erasmus denied smirking. It was inconceivable that she would do so. There was no evidence that, even if she did smirk, this was related to disability.[91]Complaint number 11 did not meet the definition of harassment. This was not related to disability and there was not the requisite effect.[92]In relation to complaint number 12, the respondent accepted that flexi-time rules can amount to a PCP. There was no evidence about the disadvantage to which the claimant was put. The complaint in the list of issues is not borne out by the evidence.[93]In relation to complaint number 13, Miss Barry said she struggled to understand the PCP. There was no PCP in relation to the allocation of apprentices. There had only been discussion about the possibility of apprentices. The respondent only took some apprentices on in 2018 and not in IT.[94]In relation to complaint number 14, the respondent accepted that to undertake a specific amount of work may be a PCP, but submitted that there was no PCP here to have a certain workload. It only became apparent that the claimant had difficulty with the workload in late 2016 when he produced his mind map. It was clear from the evidence that when the claimant raised concerns, action was taken. Adjustments were put in place: he was told to tell users to use the help desk and Mr Mulenga assisted with that. Miss Barry questioned the relevance of KPIs. Mr Mulenga told the claimant to pick what he wanted to do; there was no pressure to do anything. There was no need for an apprentice for more menial tasks; this would go against the GP recommendations that the claimant was better not doing complex tasks. The respondent submitted that the workload did not put the claimant at a substantial disadvantage but, if it did, reasonable adjustments were made.[95]In relation to the complaint of unfair dismissal, there was no dispute that the claimant volunteered for redundancy. This was a potentially fair reason for dismissal. The dismissal was entirely fair in the circumstances.[96]In relation to the holiday pay, breach of contract claim, Miss Barry submitted that the handbook was not issued and, even if it was, the respondent’s evidence was that it was obsolete from 2013. The clause was not applied to anyone since 2013. The claimant joined in 2014. This was not an operational clause. The complaint must fail.[97]In relation to the complaint relating to CSA deductions, the respondent was advised by CSA that the claimant should contact them and they would pay the claimant back. There was no document in the bundle suggesting that the respondent had any obligation to repay the amount.[98]In relation to pension, the claimant had to apply to join. There was no breach of contract.[99]Mrs Pogson made oral submissions on behalf of the claimant, which she read from material she had prepared in advance. She informed the tribunal that she was an HR professional, not a lawyer. Her submissions in relation to the discrimination complaints and complaint of unfair dismissal were not directed specifically to the issues that the tribunal needed to consider, as set out in the list of issues but were more in the nature of a narrative, reiterating the chronology of events, as perceived by the claimant. Whilst we listened carefully to what Mrs Pogson said, and took note of this, we do not consider it would be helpful to try to summarise her submissions in relation to the discrimination complaints and the complaint of unfair dismissal.[100]In relation to the holiday pay, breach of contract claim, Mrs Pogson questioned why, if the handbook was obsolete, it was still available. She referred to correspondence of 17 November 2018 about the handbook which did not mention it was obsolete. There was no evidence that the policy in the handbook had changed.[101]In relation to the complaint about the CSA deduction, Mrs Pogson noted that the respondent did refund an initial overpayment. The claimant still had not secured a refund from the CSA.[102]In relation to pension, Mrs Pogson noted that Sarah Murray’s email did not say the claimant had to apply to join the scheme. She asserted that the claimant believed that he was paying contributions.[103]After having heard the submissions Mrs Pogson had prepared, we invited her to make any other arguments she wished to make as to how the tribunal should find that the complaints of discrimination were well founded. Mrs Pogson declined to make any further arguments, saying she thought her submissions had covered all the points and that the claimant was happy with what she had submitted.
Law
[104]The law we have to apply for the discrimination complaints is contained in the Equality Act 2010.[105]The agreed list of issues set out the issues which need to be determined in relation to those various complaints. In relation to direct discrimination, we have to consider whether the claimant was subjected to a detriment, whether he was treated less favourably by the respondent than it treated or would have treated others in the same material circumstances and, if so, whether the less favourable treatment was because of disability.[106]In relation to discrimination arising from disability, we have to consider whether the respondent treated the claimant unfavourably because of something arising in consequence of the disability and, if so, whether the respondent could show that the treatment was a proportionate means of achieving a legitimate aim. It will also be a defence to the claim if the respondent shows that it did not know and could not reasonably have been expected to know that the claimant had a disability at the relevant time.[107]In relation to harassment, we had to consider whether the respondent engaged in unwanted conduct, whether the unwanted conduct related to disability and whether the conduct had purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. If the effect is relied upon, the unwanted conduct will not be regarded as having the requisite effect if that would not be reasonable in all the circumstances.[108]In relation to failure to make reasonable adjustments, the relevant parts for this particular claim are those relating to the application of a provision, criterion or practice (PCP). We have to consider whether such a PCP was applied, and if so, whether it put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. If so, the duty to make reasonable adjustments is triggered and we must consider whether the respondent took such steps as were reasonable to take to avoid the disadvantage. There will be a defence if the respondent did not know or could not reasonably have been expected to know that the claimant had a disability and/or was likely to be placed at that disadvantage.[109]The unfair dismissal provisions are contained in the Employment Rights Act 1996. We have to consider whether the respondent has shown a potentially fair reason for dismissal. Redundancy as a potentially fair reason. If the respondent has shown a potentially fair reason for dismissal, we must consider whether the dismissal was fair in all the circumstances having regard to those matters set out in Section 98(4) of the Employment Rights Act 1996.
Conclusions
[110]Disability was conceded by the respondent at relevant times in relation to the conditions of anxiety and depression. The respondent did not concede that it had knowledge of disability until February 2017. We conclude that the medical questionnaire completed by the claimant and his application forms gave cause for enquiry into the issue of whether the claimant was disabled. However, the October 2014 occupational health report was inconclusive, saying that the Equality Act “possibly” was engaged. Coupled with the fact that the claimant was performing satisfactorily at work and was not taking time off because of his conditions, we conclude that the respondent did not know, and could not reasonably be expected to know at that point that the claimant’s condition met the definition of disability. There were later matters of concern which led to further references. We conclude that the occupational health report in October 2016 did not provide any further basis for the respondent knowing or reasonably being expected to know that the claimant had a disability. There were then further concerns and the claimant took time off in November and December 2017 which put the respondent on further enquiry. This led to the occupational health report of February 2017. We conclude that, from the point of the February 2017 report, which was received some time before 9 March and after 24 February 2017, the respondent had the requisite knowledge that the claimant was covered by the Equality Act.[111]We go on to consider the individual complaints of disability discrimination, using the numbering in the list of complaints in the agreed List of Issues. Complaint number one was withdrawn so we do not consider that. Complaint number two is a complaint of harassment that, throughout the claimant’s employment, the respondent, Paul Williams, Yolandie Moore and Sara Erasmus did not share information about the claimant’s disability and reasonable adjustments with managers who needed to know. We found that HR shared information appropriately with those who needed to know at the respondent. Applying the definition of harassment, we are not clear from the claimant’s evidence that this was unwanted conduct at the time. Indeed, the claimant would have had a legitimate complaint if the respondent had shared information with people who did not need to know about his condition. We are not satisfied that the not sharing information more widely was related to the claimant’s disability. We are satisfied that it was not done with the purpose of creating the requisite effect for harassment. We considered the possibility that the effect of this violated the claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for the claimant in that, if users, including Mr Dimmer, had known that the claimant had these issues, it is possible that they would not have made requests directly to him. However, we do not consider the evidence to be sufficient to conclude that not notifying more managers about the claimant’s condition did have this effect or that, if it did have the effect, it was reasonable for it to do in the circumstances. It was a reasonable and normal stance to be taken to limit the knowledge to people who needed to know. We conclude, therefore, that complaint number two is not well founded.[112]Complaint number three is a complaint of direct discrimination or discrimination arising from disability, that, throughout the claimant’s employment, Yolandie Moore and Sara Erasmus failed to properly document and include factual information from meeting minutes, sending emails which contradicted what actually happened in meetings. We conclude that these members of HR made appropriate file notes. There is no evidence to suggest that the decision to take notes as they did was because of the claimant’s disability or because of anything arising in consequence of the claimant’s disability. The claimant has not satisfied us that Yolandie Moore and Sara Erasmus sent emails which contradicted which was said in the meetings. In any event, to the extent that there was a difference in recollection, there is no evidence that this was because of the claimant’s disability or because of something arising in consequence of his disability. We find no evidence of less favourable treatment or unfavourable treatment in relation to the emails that were sent. For these reasons, we conclude that complaint number three is not well founded as either a complaint of direct discrimination or discrimination arising from disability.[113]Complaint number four is that, in October/November 2016, the Health and Safety Officer said, after a BUPA call, “I hope that call was worth the £500 it cost” in front of other colleagues. This was said to be said by Michael Houldsworth and alleged as a complaint of direct discrimination or discrimination arising from disability or harassment. We found that the comment, as set out in the list of issues, or words to that effect, were said, but we found that no express reference was made to BUPA. This complaint we consider to be a discrete issue and the complaint about it was presented out of time. The claimant provided us with no basis on which we could consider it was just and equitable to consider the complaint out of time, so we conclude that we have no jurisdiction to deal with the complaint. However, we go on to consider what we would have decided on the merits had we had jurisdiction.[114]We consider first the merits of the complaint as a complaint of direct discrimination. Although we have not heard from Michael Houldsworth, it appears from the comment itself that the reason for making the comment was due to the surprising cost of the phone call. The claimant has not proved facts from which we could conclude that the comment was made because of his disability. The claimant has provided no evidence about the actual comparator who was identified in the list of issues, and no evidence on which we could conclude that the claimant was treated less favourably in this respect than a hypothetical comparator in relevant circumstances would have been treated. There is no evidence which would allow us to conclude that making this comment was because of the claimant’s disability. For these reasons, we conclude that a direct discrimination complaint would have been not well founded if we had jurisdiction.[115]Considering the complaint as a complaint of discrimination arising from disability, we conclude that the comment was made because of the occupational health report which was done because of the claimant’s condition. We consider there was a causal connection and the comment was, therefore, made because of something arising in consequence of the disability. We conclude that there was unfavourable treatment in that the comment understandably made the claimant feel uncomfortable. However, at the time the comment was made, the respondent did not have the requisite knowledge of the claimant’s disability and, therefore, the claim would have failed on its merits for this reason, even if it had not been out of time.[116]Considering the complaint as a complaint of harassment, we conclude that this was unwanted conduct and it was related to disability, for the same reasons as given in relation to the complaint of discrimination arising from disability. We conclude that the comment had the requisite effect for the test of harassment and that it was reasonable for it to do so. The complaint of harassment would have succeeded as a complaint of harassment on its merits if it had not been out of time.[117]In relation to complaint five, the date of this complaint was amended during the course of the hearing, to be July to August 2016 rather than early 2017. It is a complaint that Lynda Guest made an accusation that the claimant was not working hard and providing good service and is a complaint of harassment. This appears to relate to the alleged comment by Lynda Guest to Mr Mulenga, relayed by Mr Mulenga to the claimant, asking why the claimant was not running around like he used to. We found that this may have been said and we consider this on the assumption that it was. The complaint is presented out of time and, unless it forms part of a continuing act of discrimination, we have no jurisdiction to consider it. We consider that the claimant has provided no grounds on which we could consider it just and equitable to consider it out of time. Given our conclusions on the other complaints which we deal with, we conclude that this matter does not form part of a continuing act of discrimination. We, therefore, have no jurisdiction to deal with it.[118]We do go on, however, to consider what we would have decided on the merits had we had jurisdiction. We would have concluded that the claimant suffered unwanted conduct and that it was related to disability because the way he was behaving at work at that time was affected by his condition. We are doubtful, on the evidence, that the claimant found the relayed comment at the time to have the requisite effect for harassment but, even if he did, we conclude that, in the circumstances, it was not reasonable for it to have that effect. What was relayed to the claimant was in the form of an enquiry; this did not necessarily entail criticism. We know that Lynda Guest had performance concerns at some stage but, when told by HR that there were issues, no performance action was taken. The claimant thanked Lynda Guest for her compassionate approach in relation to voluntary redundancy. These matters suggest to us that Lynda Guest was likely to have made the comment in the spirit of enquiring concern rather than condemnation. We conclude that the complaint would have failed on its merits had it not been out of time.[119]In relation to complaint number six, on the basis that this was argued as an ongoing matter, there is no time issue. The complaint is that work was taken off the claimant by Simon Mulenga without telling him and that this is a complaint of discrimination arising from disability. We found that the claimant and Mr Mulenga did have discussions about what Mr Mulenga had done about the work and the claimant knew in general terms about the way that Mr Mulenga had reduced the work and closed down matters on the help desk, although Mr Mulenga did not discuss his reasons for closing down each individual piece of work. We conclude that this was not unfavourable treatment and, for this reason, we conclude that the complaint of discrimination arising from disability is not well founded.[120]Complaint number eight is that, in February/March 2017, Yolandie Moore told the claimant that the company had no evidence of a disability from him. This is argued as discrimination arising from disability. We conclude that this complaint is out of time unless part of the continuing act of discrimination. Given our conclusions on other matters, we find that there was no continuing act of discrimination. This matter is out of time and the claimant has given us no basis on which we consider it just and equitable to consider the complaint out of time. We have no jurisdiction to consider this complaint.[121]We go on to consider what we would have decided on the merits, had we had jurisdiction. We were not satisfied that this comment had been made. Even if it was, we would have concluded that it did not arise in consequence of disability. It did not arise in consequence of the disability that the claimant relies on in this claim, but rather relates to epilepsy as a child, and, therefore, the complaint would fail.[122]In relation to complaint number nine, this is that, in February 2017, Paul Williams, Yolandie Moore, Simon Mulenga expected the claimant to do things improperly. This is argued as discrimination arising from disability. This complaint would be out of time unless part of a continuing act of discrimination. We find there was no continuing act and it was not just and equitable to consider the complaint out of time. We have no jurisdiction to consider this complaint. Since we found that this complaint was not made out on the facts, it would, therefore, have failed on its merits, even if the Tribunal had jurisdiction.[123]Complaint number ten is that, on 4 April 2017, Sara Erasmus smirked as the claimant got up to leave a meeting. This is brought as a complaint of harassment. This complaint is out of time unless part of a continuing act of discrimination. We find that it is not part of a continuing act and there is no basis for us to consider it just and equitable to consider it out of time. This complaint was not made out on the facts and would, therefore, have failed on merits, even if we had had jurisdiction.[124]Complaint number eleven is that, in May 2017, a return to work meeting was held immediately on the claimant’s return to work without prior notice and that this was harassment. The date is wrong in the list of allegations; the meeting was on 4 April 2017. The complaint is out of time unless it forms part of a continuing act of discrimination. We conclude that it did not form part of a continuing act and there is no basis for us to consider it just and equitable to consider it out of time. We do not have jurisdiction to consider this complaint.[125]Although we have no jurisdiction to consider the complaint, we go on to consider what we would have decided on the merits, had we had jurisdiction. The meeting was held immediately on the claimant’s return to work. However, we are not satisfied that the holding of the meeting at this time was unwanted. The claimant did not raise that he had a problem that it was being held at that time in the meeting, although he knew that he was recording it. He could have expected, in the normal course of things, to have a return to work meeting promptly on his return to work, particularly where details of the recommended phased return to work had to be sorted out. The return to work meeting related to disability because it was about absence due to disability. We are not satisfied that the mere fact of having the meeting at that time had the requisite effect to meet the definition of harassment and conclude that, even if it did, it was not reasonable for it to do so. The complaint would, therefore, fail on its merits.[126]We turn now to the complaints of failure to make reasonable adjustments. The first one relates to the flexi time rules. We conclude that the flexi times rules can amount to a provision, criterion or practice. We are not satisfied, on the evidence we have heard, that the claimant was disadvantaged by the flexi time rules. The claimant’s concern, as expressed in his evidence, seemed to be more about the prospect of potentially losing flexi time than disadvantage of the rules themselves. We also find that the respondent did not know that the claimant was disadvantaged by the flexi time rules. We conclude the complaint is not well founded.[127]The second provision, criterion or practice is about allocation of apprentices to departments. We consider this as being a practice about whether to allocate apprentices. We found that no apprentices were allocated to any departments during the claimant’s employment. The claimant cannot, therefore, be disadvantaged by this practice. We also find that the respondent did not know that the claimant was disadvantaged by this practice. We conclude that the complaint is not well founded.[128]The third provision, criterion or practice relates to workload. We concluded that the respondent did not have the requisite knowledge for the duty to make reasonable adjustments to be triggered until the occupational health report on 24 February 2017. However, the respondent had already been taking steps to assist the claimant from the claimant’s absence in November 2016. We are not satisfied that the claimant was put at a disadvantage that was more than minor or trivial by the general workload from the point at which the respondent had the requisite knowledge of disability. However, if the claimant was still disadvantaged by general workload from this point, we conclude that the respondent took reasonable steps to alleviate the disadvantage. There was no pressure on the claimant to take any particular job from the help desk or to do any particular amount of work. If people came to him directly, he was told to direct them to Mr Mulenga. Mr Mulenga told him he should not regard work on the help desk as being the claimant’s work; it was the company’s work. Given these adjustments which were made, we do not consider that a further adjustment of a policy to use the helpdesk consistently (beyond the encouragement already given to use the helpdesk) was a reasonable adjustment to be made. We have no evidence that having KPIs for the helpdesk would have alleviated disadvantage caused by the workload. We do not consider that having an apprentice, when no departments had an apprentice at this time, would have been a reasonable adjustment. An apprentice would have done lower level tasks and the claimant’s GP’s recommendations suggested that the claimant should do less complex tasks, so we are not satisfied that having an apprentice would have assisted the claimant. We do not consider that it would be a reasonable adjustment to tell any manager who might approach the claimant with a job about his condition and adjustments to be made; this would pass the information beyond those who needed to know and would not alleviate disadvantage, in that those who might approach the claimant with jobs were not only managers. We conclude that the complaint is not well founded.[129]We turn then to the complaints of breach of contract. The complaint of holiday pay depends on the clause in the employee handbook. We found that the handbook was still in force and we found that the claimant had been issued with the handbook. No suggestion has been made that the provision in the handbook was not a term appropriate for incorporation in the contract and the contract specifically referred to the employee handbook for other terms of employment. We conclude, on the basis of the clause, that the claimant had a contractual right, on being made redundant, to receive pay in lieu of holiday he would have accrued if employed until 30 April 2018, even though the respondent has not paid this to others since 2013. The respondent did not pay the claimant in lieu of holiday he would have accrued if he had remained with the respondent until the following 30 April, in accordance with this clause, and we conclude, therefore, that the respondent was in breach of contract and this complaint is well founded.[130]Following the giving of our decision on liability orally, the parties agreed that the amount to be paid as damages in respect of this breach of contract was £2101.60.[131]In relation to the CSA deductions, additional deductions were made by mistake. The respondent was then acting in accordance with what they were told by the CSA that they should not repay the money to the claimant but the claimant should seek repayment from the CSA. We conclude that the respondent was not in breach of any contractual term by not paying the amount deducted in error back to the claimant after having paid it over to the CSA by mistake.[132]In relation to the complaint about failure to enrol the claimant in the company pension scheme, it is clear from the documents the claimant received on joining the company that he had to elect to join the pension scheme. He did not do so and was not, therefore, enrolled in the scheme. The respondent was not in breach of the contract by failing to enrol him in the scheme and his complaint is not well founded.[133]Finally, we turn to the complaint of unfair dismissal. We conclude that the dismissal was for the potentially fair reason of redundancy. The claimant was dismissed by reason of redundancy, having applied for voluntary redundancy. We conclude that the respondent acted reasonably in all the circumstances in dismissing him for redundancy. The claimant applied for voluntary redundancy; he was under no pressure by or suggestion from the respondent to do so. The respondent, through Lynda Guest, checked with him on a number of occasions that this was really what he wanted and the claimant said that it was. The respondent agreed to the claimant’s request to take voluntary redundancy, even though the respondent had not intended to make redundancies in the IT department. The claimant was given a right of appeal after his voluntary redundancy. In all these circumstances, we consider that the dismissal was fair and conclude that the complaint of unfair dismissal is not well founded.