Mr R J Taylor v Sainsburys Supermarkets Ltd: 3302602/2023

EMPLOYMENT TRIBUNALS

Case No 3302602/2023

Between

Mr R J TaylorClaimant

Sainsburys Supermarkets LtdRespondent

Before

Employment Judge Alliott

Members

Mrs J Hancock

Mr D Bean

In person for claimant

Mr Andrew Carter (instructed by counsel) for respondent

Date 8 August 2025

JUDGMENT

[1]The respondent failed to make reasonable adjustments in failing to adapt the absence management policy and failing to ensure that the claimant only worked his base hours.

[2]The respondent discriminated against the claimant arising from his disability by dealing with the claimant through the respondent’s absence management policy, paying the claimant statutory sick pay instead of company sick pay after 19 May 2023, giving the claimant a formal written warning as a result of his sickness absence record, halving the claimant’s bonus because the claimant received a written warning for his absence record and informing him he had not passed his probationary period as a shift manager.

[3]The claimant’s claims of direct disability discriminaiton are dismissed.

[4]The claimant was constructively unfairly dismissed.

REASONS

complaints.

[1]The claimant was employed by the respondent as a “Colleague” on 20 September 2020. On 21 August 2022 he was promoted to a “Trading Shift Case Number: 3302602/2023 2 Manager (3S)”.On 20 July 2023 the claimant resigned giving four weeks’ notice. The effective date of termination of his contract of employment was 17 August 2023. By a claim form presented on 17 March 2023 (as amended) the claimant brings complaints of disability discrimination (direct, section 15 and failure to make reasonable adjustments), constructive unfair dismissal and a breach of contract/unauthorised deduction of wages claim. The respondent defends the claims.

The issues

[2]The issues were set out in a case management summary by Employment Judge Laidler following a preliminary hearing heard on 11 January 2024. They are as follows:- “Preliminary issue: Time Limits

The issues

[1]The Claimant’s claim form was received by the Tribunal on 17 March 2023. Are the Claimant’s claims made in time?

[3]If not, were the claims made within a further period that the Tribunal thinks is just and equitable? Constructive Unfair Dismissal

[4]Are any of the actions/inactions of the Respondent set out below as acts of direct disability discrimination, failure to make reasonable adjustments, discrimination arising from disability and/or breach of contract/unauthorised deductions from wages actual or anticipatory repudiatory breaches of the Claimant’s contract of employment:

[5]Did the Claimant do anything to waive those breaches and/or affirm the contract of employment?

[6]Did the Claimant resign in response to any of those breaches? Direct Discrimination

[7]The Respondent concedes that the Claimant is a disabled person as defined by section 6 of the Equality Act 2010 because of his ankylosing spondylitis.

[8]Did the Respondent do the following things:a. On or around 11 September 2022, inform the Claimant that he had been unsuccessful in applying for the Customer Trading Manager role.

b. On 28 November 2022 during a sickness absence call related to the Claimant’s absence following a tooth extraction, did Ms Satwinder Hayre: i. ask the Claimant whether he could take painkillers and come to work (as that is what Ms Hayre had done before when her tooth was extracted); and ii. did she say to the Claimant that there was an expectation of the Claimant as a manager to try and make it into work? Case Number: 3302602/2023 3

c. On or around 3 May 2023 arising out of a written warning appeal meeting, did the Respondent deliberately omit all record of any conversation related to the Claimant’s disability? i. When the Claimant sent back amended notes, did the Respondent ignore the Claimant?

[9]Was the above less favourable treatment as compared to a hypothetical non disabled comparator whose circumstances were not materially different to his own?

[10]Was that treatment because of the Claimant’s disability? Failure to Make Reasonable Adjustments

[11]Did the Respondent have the following PCPs?a. The Respondent’s sickness absence management policy

b. Requiring managers to work additional hours on a daily basis

[12]Did any of the above PCPs put the Claimant at a substantial disadvantage as compared to someone without the Claimant’s disability?

[13]Did the Respondent know or could it reasonably be expected to know that the Claimant was likely to be placed at the disadvantage?

[14]What steps could have been taken to avoid the disadvantage? The Claimant suggests that:a. the Respondent should have adjusted how the Claimant’s absences were recorded when the absence in question was as a result of the Claimant’s disability or exacerbated as a result of his disability.

b. The Respondent could have planned the shift handovers better so that the Claimant did not always have to work more than his base contracted hours

c. The respondent should have implemented the WRAP adjustments: i. To reduce the amount of physical work including replenishment so that the claimant could have a more managerial overview ii. Keep the claimant on a routine pattern of working iii. Allow the claimant to take mini breaks as required by his condition iv. To reduce the amount of time the claimant spending in the chilled/cold areas.

[15]Was it reasonable for the Respondent to have to take those steps?

[16]Did the Respondent fail to take those steps? Discrimination Arising from Disability

[17]Did the Respondent treat the Claimant unfavourably by:a. Dealing with the Claimant’s absences through the Respondent’s absence management policy Case Number: 3302602/2023 4

b. Informing the Claimant on or around 11 September 2022 that he had been unsuccessful in applying for the Customer Trading Manager role.

c. Requiring the Claimant to work more than his base contractual hours

d. Asking the Claimant whether being a manager was “for [him]” when he explained that he was not able to commit to working more than his base contractual hours

e. Paying the Claimant statutory sick pay instead of company sick pay when he took sickness absence during his tenure as a Shift Manager

f. Giving the Claimant a formal written warning as a result of his sickness absence record

g. Halving the Claimant’s bonus because the Claimant received a written warning for his absence record

h. Informing the Claimant on 6 November 2022 that he had not passed his probationary period as a Shift Manager because the Claimant could not commit to working more than his base contractual hours

i. Changing the Claimant’s shift pattern on 27 March 2023

j. During a meeting on 19th April 2023 to discuss the change to the Claimant’s shift pattern, did Jason Aston ask the Claimant to “consider how my other colleagues would feel having to work weekends to make up for me not working the additional days”.

[18]Did the following things arise in consequence of the Claimant’s disability:a. Increased periods of sickness absence

b. Reduced ability to work in chilled/cold areas

c. Reduced ability to perform physical work including replenishment

d. Reduced ability to work in excess of base hours.

[19]Was any unfavourable treatment identified in §17 because of anything specified in §18?

[20]Can the Respondent show that the treatment in question was a proportionate means of achieving a legitimate aim?

[21]The Respondent’s legitimate aims will be set out in its amended grounds of resistance [The Amended Grounds of Resistance set out the following: “43. If, which is denied, the Respondent did treat the Claimant unfavourably because of something arising in consequence of the Claimant’s disability, the Respondent submits that the treatment was a proportionate means of achieving a legitimate aim. Those legitimate aims are set out below: Case Number: 3302602/2023 5 a) The Respondent has a business need to manage absence levels to ensure that it can operate effectively and serve its customers. The Respondent seeks to do so fairly and consistently by operating an attendance management procedure, which may result in cascading warnings and which have an impact on bonus eligibility; b) In circumstances where colleagues are promoted, he Respondent has a legitimate need to require a probationary period to determine whether the colleague is able to meet the required standards of performance in the role or not. c) The Respondent has a business need for management staff to work additional hours from time to time when the business and its customers demand it, and this is taken into account in salary; d) The Respondent seeks to support its staff during sickness absence by paying enhanced Company sick pay where colleagues meet the eligibility criteria, which are applied fairly and consistently depending on role and length of service; e) Given the nature of its business, the Respondent has a business need to change shift patterns to ensure that its staff are working at times when its customers need them most.] Breach of Contract

[22]Did the Respondent breach the Claimant’s contract of employment by requiring the Claimant to work additional hours? Unlawful Deduction from Wages/breach of contract.

[23]Has the Claimant experienced an unlawful deduction from his wages as a result of only being paid statutory sick pay instead of company sick pay during his tenure as a Shift Manager? Remedy To what remedy, if any, if the Claimant entitled?

[25]Should any deduction be made for unreasonable non-compliance with the ACAS Code and/or for contributory fault and/or for Polkey?

[26]Should any uplift be made for unreasonable non-compliance with the ACAS Code?

[27]Has the Claimant taken reasonable steps to mitigate his loss?” The law 3. Direct discrimination (section 13 Equality Act 2020) “13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Case Number: 3302602/2023 6 4. Discrimination arising from disability (section 15 Equality Act 2020) “15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 5. Duty to make reasonable adjustments (sections 20/21 Equality Act 2020) “20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. “21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” 6. Wages (section 27 Employment Rights Act 1996) “27 Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— Case Number: 3302602/2023 7 (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise. 7. Constructive unfair dismissal (sections 95 & 98 Employment Rights Act 1996) “95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)— … (c) 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. “98 General. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. The evidence 5. We had a hearing bundle of 1,159 pages. During the course of the hearing we were provided with various other documents as follows:- (i) A transcript of a covert recording on 22 December 2022 between Ricky Taylor and Natasha Miller. (ii) The Attendance Policy and Guide applicable to managerial colleagues. (iii) The claimant’s attendance and hours worked from 1 January – 23 July Case Number: 3302602/2023 8 2022. (iv) A nightshift operational excellence flow chart. (v) A Kronos printout showing the number of hours allocated to the night shift on a monthly basis from September 2022 to January 2023 and September 2024 to January 2025. 6. We had witness statements and heard evidence from the following:- (i) The claimant. (ii) Ms Satwinder Hayre, Store Manager at the St Albans Store at the relevant times. (iii) Mr Lee Parker, a 4S Lead and the claimant’s line manager between June 2022 and the end of November 2022. (iv) Ms Natasha Miller, Lead Food Manager at the St Albans Store. (v) Mr Alfie Hopkinson-Badgery, a 4S Shift Manager and the claimant’s line manager from 4 December 2022 until the end of his employment. (vi) Mr Martin Wells, Deputy Store Manager of the St Albans store until February 2023. (vii) Mr Phil McKechnie, a Store Manager of a store at Thorley. (viii) Mr Jason Aston, Deputy Store Manager at the St Albans store. 7. Mr Carter provided us with a note on company sick pay and closing submissions. He later provided a revised note on company sick pay along with the claimant’s payslips and the hourly paid Attendance Policy for May 2021. The claimant’s disability 8. The claimant suffers from ankylosing spondylitis which was diagnosed in 2016. AS is an autoimmune condition. 9. The respondent accepts that the claimant was disabled as defined by s.6 of the Equality Act 210 because of that condition. 10. As set out in the case management summary:- “The claimant explained at this hearing how the condition affects him. He experiences stiffness particularly in cold weather resulting in his hands, knees and elbows in particular swelling up if he does too much. It is extremely painful and limiting. It can become difficult to walk and causes extreme fatigue. A flareup can be caused by an underlying infection which can easily turn to sepsis. As a result ordinary issues for example a dental issue could be of greater concern to the claimant and take longer to resolve”. 11. In his witness statement the claimant puts it as follows:- “AS is an autoimmune condition. The immune system mistakenly attacks healthy Case Number: 3302602/2023 9 tissue in the body, causing other parts of the body to become swollen, stiff, known as a flare-up. AS inflammation, specifically targeting, where the spine and pelvis join. To control the symptoms of AS I take a monthly injection called, Secukinumab. This is an autoimmune suppressant. It weakens the immune system and increases the risk of infections. It can make existing infections worse or increase the chance of getting new infections. AS is a life-long and incurable disease with fluctuating and recurring periods of flareup. I experience pain and stiffness particularly in hands, fingers, feet, toes and knees and elbows from swelling up if I do too much. It is extremely painful and limiting. Walking becomes difficult and I feel fatigued. A flare-up can be caused by an underlying infection which can easily turn into sepsis without treatment. As a result, ordinary issues for example a dental issue become a greater concern and take longer to resolve. A dental report is included that show regular treatment during the times I was absent from work.” 12. One of the PCPs relied upon is:- “11.b “Requiring managers to work additional hours on a daily basis.” 13. There is a dispute between the parties as to whether that PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability. 14. Further, one of the things said to be arising in consequence of the disability is:- “Reduced ability to work in excess of base hours.” 15. Consequently, we have looked at the medical evidence we have on this issue. (i) On 9 November 2022 the claimant had a workplace adjustment plan meeting. This contains the following:- “I would like to have the required number of hours and/or support/understanding and not to be left on my own on any night and not to work any longer than my contracted hours to ensure I get the required amount of rest.” (ii) The following was identified as one of the workplace adjustments required:- “3) Work four nights in a row and only contracted hours each night/week to enable me to rest as required.” Further, in the section summarising what action/workplace adjustments have been discussed and agreed, the following is recorded:- “3) Work four nights in a row and only contracted hours each night/week to enable me to rest as required.” (iii) We have a medical report from a Lead Clinician Consultant Rheumatologist dated 17 November 2022 which states as follows: “It was a pleasure to see Ricky today in clinic. At the moment he is working 4 nights Case Number: 3302602/2023 10 a week. He feels really quite exhausted and full of pain by the end of the shift. Generally, he is better when he is active and it is only when he reaches the end of the shift and sits in the car and is less active, he notices things flaring up. He gets pain in his neck, back, ribs, his right shoulder, his left hand and things can sometimes be worse in the morning and he is sometimes woken from sleep as well. His back does feel stiff. He also complains of pain in his feet, particularly his MTP joints when walking.” 16. Mr Carter, on behalf of the respondent, has pointed to an absence of contemporaneous reports in WhatsApp chats and the claimant’s grievances (which we will recite in due course) to increased fatigue/pain being the reason why the claimant could only work his contracted hours and needed to finish his shift at 7am promptly. It is the respondent’s case that the claimant’s reluctance to work beyond his shift end was, in reality,because he was not going to get paid for it and/or the later he worked after 7am the longer his commute home became. 17. On 14 March 2023, the claimant had a workplace adjustment plan (WRAP) meeting with Alfie Hopkinson-Badgery. The following is recorded in the box entitled:- “If the suggested workplace adjustments are not mutually agreeable, explain why this is? … - Having complete contractual hours (39 hours) – not fully agreed due to business reason (agreed to disagree with Rick)” 18. Following that WRAP meeting the claimant was referred to Occupational Health by Alfie Hopkinson-Badgery on 16 March 2023. One of the reasons given for the referral was as follows:- “There is an expectation highlighted in the management contract that managers will not leave until all required tasks have been completed however Rick has advised that they are unable to work any longer than their contracted 10 hour shift as this is when they have reached their pain threshold.” 19. The OH report is dated 27 March 2023. The OH professional undertaking the report is a physiotherapist. The report contains the following opinion:- “Based on the information gathered today, it is my professional opinion that Mr Taylor is likely experiencing symptoms of chronic, widespread mechanical joint pain with circulation complications. During the consultation, Mr Taylor did not indicate symptoms of more serious underlying condition or concerns. Therefore, in my professional opinion as a physiotherapist, Mr Taylor is fit to continue with contractual duties and hours. Recommendations Based on the information gathered today, it is my opinion that Mr Taylor would be able to manage his symptoms more easily with a fixed routine and regular work hours, task rotation and micro breaks as described above.” Case Number: 3302602/2023 11 20. Having reviewed the medical evidence, it is clear to us, and we find, that by November 2022 the claimant was complaining that having to work longer than his contracted hours caused him extra pain and fatigue. There is contemporaneous medical evidence to support this. We find that those complaints were genuine and that, accordingly, something that arose in consequence of his disability was a reduced ability to work in excess of base hours (issue 18d). The facts 21. The claimant was first employed by the respondent on 20 September 2020 as a Trading Assistant ”Colleague”. 22. In his witness statement the claimant explains that he had been unable to work for a number of years because of re-occurring and fluctuating flare-ups and multiple infections. In 2019 a change to his biological treatment enabled him to return to work. In March 2020 the claimant started a cleaning job at a secondary school before leaving and joining Sainsburys in September 2020. 23. The Attendance Policy applicable to Retail Hourly Colleagues provides the following in relation to payment during sickness absence:- “Company sick pay Company sick pay is based on your normal base salary excluding any overtime, or store shift premiums and is calculated on a rolling 12 month basis. This means that subject to eligibility, company sick pay is paid at the beginning of your sickness absence and will last for the period you are off sick, or up to the maximum number of hours you are eligible to receive. If you use up all your sick pay eligibility then you are not entitled to any further sick pay until the anniversary of the end date of your first sickness absence in the rolling 12 month period.” 24. For Trading Assistant colleagues the maximum CSP for someone with over 1 years’ service was 26 weeks. 25. The triggers that could generate an attendance disciplinary meeting were three absence occurrences in 12 months or 3% absence in 12 months. 26. On 31 May 2021, the claimant was absent sick until 2 June 2021. The reason was arthritis and the return to work form records that it was his first sickness absence in the last 12 months. The sickness percentage was calculated as 2.62%. 27. On 14 July 2021, the claimant had a sickness absence due to an abscess in a tooth. The return to work document records that as his second sickness absence in the last 12 months and his total sickness percentage was now 3.13%. Despite the claimant’s total sickness percentage reaching 3.13%, Lee Parker decided not to invite him to attend a formal attendance disciplinary hearing.

The facts

[28]From 24 to 28 November 2021 the claimant had a further period of sickness due to arthritis. The return to work form records that as his third instance of absence in the last 12 months. His total sickness percentage was not calculated. However, it would have risen from the previous 3.13% but the claimant’s line Case Number: 3302602/2023 12 manager again decided not to invite the claimant to a formal attendance disciplinary hearing.

[29]On 19 January 2022, whilst on holiday, the claimant sustained a serious accident whilst skiing. He dislocated his right shoulder and completely detached the anterior cruciate ligament on his left knee. The claimant was recorded as off sick from Monday 31 January until he returned to work on 22 May 2022. His last day of absence was 18 May 2022. The return to work form dated 23 May 2022 records the claimant’s total sickness percentage as 32.29%. Despite the box for inviting the claimant to attend a formal attendance disciplinary hearing being answered “yes”, it appears that that was not actioned.

[30]When the claimant returned to work on 22 May 2022 he was approached by a number of managers and recommended for a 3S manager position. Despite the fact that he had not applied, been interviewed, or had the promotion confirmed, the claimant was treated as a manager in training from his return.

[31]On 20 July 2022 the claimant had a further days sickness absence. The reason was an adverse reaction to a covid booster injection. There was no return to work form completed.

[32]On 5 August 2022 the claimant was interviewed for the Customer and Trading Manager 3S role by Martin Wells. The interview notes contain the following:- “• Shift availability (if not already covered) “Can’t do Fri/Sat night”.

[33]The claimant passed the interview, was formally offered the role and began on 21 August 2022.

[34]From the timesheets we can see that from his return to work on 22 May 2022 until 21 August 2022 the claimant had generally clocked out at the end of his shift or within a few minutes of it. Only on about three occasions did he stay longer than 10 minutes after his shift ended.

[35]On 2 September 2022 the claimant was sent a formal written confirmation that he had been offered the post. The letter of appointment had a copy of the claimant’s new contract of employment attached and states:- “Please go through your contract carefully, as well as the relevant policies and other information that may be provided to you.”

[36]The contract provides as follows:- “Hours of work Your normal working hours are 39 per week. It’s really important that we change and evolve to meet the needs of our customers, being there for them whenever and wherever they want to shop with us. Your shift pattern (days of the week and timings) will therefore vary depending on the needs of the business and will include weekends, late nights, night shifts and bank holidays, as agreed with your line manager.” Case Number: 3302602/2023 13 And “Annual Bonus Scheme You may be eligible to participate in the Company’s discretionary annual bonus scheme (subject to scheme rules). Details of the current scheme applicable to your grade are set out in your Grade Specific Benefits Booklet and in more detail in the bonus scheme rules on Our Sainsburys. Please note that these documents refer to the scheme for the current financial year, and may be subject to future amendments. All bonus plans and payments are non-contractual and the scheme content and/or rules may be changed at the discretion of the Company.” And “Sickness absence … Whether or not you will receive sick pay is dependent on meeting several conditions (all of which are detailed in the Attendance Policy) so it’s important that you take time to read through this when you start – you probably won’t want to be looking up policies when you are feeling ill.”

[37]The Sainsbury’s bonus scheme 2023/2024 provides as follows:- “• If you receive a final warning for your attendance, conduct or performance during the relevant financial year, you will not be eligible for a bonus payment. If you receive a written warning for your attendance, conduct or performance during the relevant financial year, you will only be eligible for half of your bonus payment.”

[38]On becoming a Trading Shift Manager 3S, the claimant moved on to a different attendance policy than the one that has already been quoted above. This policy begins: “Document status: This policy is non-contractual and may be updated or changed by the company at any time”.

[39]The relevant company sick pay policy is as follows:- “Company sick pay You have to work for us for six months before any sick pay becomes available to you. Its calculated on a 12-month rolling basis. If you use up all your sick pay eligibility, then you are not entitled to any further sick pay until the anniversary of the end date of your first sickness absence in the rolling 12 month period.”

[40]The maximum amount of sick pay was based on the number of years of service. For someone with 1-2 years service it was 4 x contracted hours in a week. For someone with 2-3 years it was 6 x contracted hours in a week. (We observe that, curiously, had the claimant remained a trading assistant he would have been eligible for 26 weeks company sick pay and promotion resulted in him only being eligible for six weeks).

[41]The trigger for attendance management guidelines became three absences in 12 months, although any decision would take into account the number of Case Number: 3302602/2023 14 absences and/or the absence percentage.

[42]The respondent’s Colleague Handbook”, provides as follows:- “If you’re a manager or work in our store support centres, we’ll expect you to work a reasonable number of extra hours every now and again when the business and our customers demand it. We take this into account in your salary, so there are no extra payments for it. If you ever need to work an exceptional number of extra hours, your line manager can decide to give you some time off to make up for it, or, at their discretion, to make a payment instead if you aren’t able to take the time off.

[43]Unlike trading assistants, night shift managers were paid for their breaks.

[44]Due to his disability which required him to keep active, the night shift suited the claimant. The claimant’s preference, as expressed at his interview, was to work four shifts, Sunday pm to Thursday am. The claimant was generally rostered to work 10pm to 7am on Sunday/Monday and 9pm to 7am on the other shifts (total 39 hours).

[45]As a trainee manager there was always another manager working every shift with the claimant. We heard that the numbers of trading assistant colleagues on the shift fluctuated regularly from between 9 to 16. Absence, sickness and holidays accounts for much of this as did ad hoc requirements to move colleagues to work in other departments such as “online” and the bakery.

[46]The night shift was responsible for receiving deliveries of stock into the warehouse and replenishing the shelves in the store to prepare it for its opening at 7am.

[47]The afternoon shift would end at 10pm. Consequently, when the claimant and the other manager clocked on at 9pm, there was a one hour overlap during which the handover could take place.

[48]Conversely, the night shift ended at 7am and the morning shift clocked on at 7am. As such, it was inevitable that at least one manager would have to work past 7am in order to hand over. In addition, we find that on a regular basis short staffing of the night shift meant that some tasks had not been completed by 7am and there was a requirement for the night shift to carry on working past 7am in order to finish.

[49]The respondent sought to argue that there was no such requirement and that, had the claimant organised the work schedule efficiently, he could have left at 7am. In addition, the respondent sought to argue that the claimant could leave at 7am as the other manager could do the handover. We find that these contentions do not accord with the reality. As set out in the Occupational Health referral of 16 March 2023: “There is an expectation highlighted in the management contract that managers will not leave until all required tasks have been completed”.

[50]The respondent tried to justify this by reference to the Colleague Handbook, but we find that this was not a “reasonable number of extra hours every now and again” but well in excess of that and, as can be seen from the claimant’s shift Case Number: 3302602/2023 15 times in August and September 2022, the claimant regularly worked past 7am, sometimes until 8.30am.

[51]We have a text message from Satwinder Hayre in March 2023 on a shift WhatsApp group which includes the claimant stating: “I have considered everything will be good to have handover from all managers in morning. Shift managers are the only one who get paid breaks so considering what time shift managers leave here not a hard ask.”

[52]Further, Lee Parker, the claimant’s line manager, gave evidence about the four/five week review meeting with the claimant on 20 September 2022 as follows:- “Q: At the performance review you said I needed an attitude adjustment. A: What I meant by that was your working time. As a manager I would always stay behind. We didn’t get paid for it, or time in lieu. To me you were still working colleague hours. That’s what that meant to me and that’s what led to the review.”

[53]Also, at the 12 week review on 6 November 2022, Lee Parker’s notes state:- “Next I spoke about attitude and behaviour (which I brought up in his review back in mid/late September) in terms of how I have noticed that he has been working what can [be] described as colleague hours (only working what’s scheduled), I explained at times that as a manager the needs of the business will require more hours and we would need to stay late or start earlier….”

[54]The PCPs alleged in issues 11.a. and

b. are: “11.a.“The Respondent’s sickness absence management policy” and “11.b. “Requiring managers to work additional hours on a daily basis”.

[55]Mr Carter cited to us the case of Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

in support of the contention that a PCP of the policy itself which contains a discretion (as here) cannot disadvantage a disabled person. However, on a pragmatic basis and on the basis that the claimant was a litigant in person, he accepted that the PCP should be: “The requirement to maintain a certain level of attendance in order to avoid disciplinary sanction (ie less than three absences in any 12 month rolling period).”

[56]We find that the respondent did have both of these PCPs.

[57]Issues 8.a. and 17.b. are: 8a. “On or around 11 September 2022, inform the Claimant that he had been unsuccessful in applying for the Customer Trading Manager role. Case Number: 3302602/2023 16 17

b. “Informing the Claimant on or around 11 September 2022 that he had been unsuccessful in applying for the Customer Trading Manager role.”

[58]On 19 October 2021 an internal HR Talent Professional, Jasmine Marks, sent to Alfie Hopkinson-Badgery the relevant documents for the role along with a link to complete the application. The claimant told us, and we accept, that he did not apply online and simply went to the interview.

[59]However, it is clear to us that the claimant’s details as an applicant were entered onto the system as, on 12 September 2022, the claimant was sent at 20.34 hours a standard email stating that he had not been successful in his application. As such, we find the facts alleged in issues 8a and 17b are proved.

[60]The claimant suggested that Sawinder Hayre had caused the email to be sent due to an earlier conversation they had had on that day. The claimant told us that Satwinder Hayre called him at 16.56 hours as he was off work sick and that at the end of the call the claimant said, “You do realise I am disabled” and she hung up on him. The claimant suggested that it was because he shared his disability with Satwinder Hayre that she caused the email to be sent.

[61]In her evidence Satwinder Hayre was asked if the claimant had told her he was disabled, and she replied she could not recall. She said she would not have put the phone down. The respondent’s position is that the email was sent in error but gave us little detail. Satwinder Hayre told us that the email could be generated in one of two ways. It could be sent directly by the manager who opened the vacancy on the system or auto generated upon the vacancy being closed in the system.

[62]We consider that there are odd aspects to this issue. The claimant had been appointed on 21 August 2022 and had been sent his new contract of employment on 2 September 2022. So why was this email sent? We would have expected HR or his manager to close the vacancy well before 12 September 2022 and log that the claimant was the successful candidate. Doing the best we can, we find that someone probably accessed the system at around the time the email was sent, saw the vacancy still open and closed it thereby generating an automatic unsuccessful email to all applicants on the system. We find that the accessing of the system was probably as a result of the conversation with Satwinder Hayre. We find that she, either herself or having directed another to do so, probably caused the system to be accessed and closed the vacancy. We have considered why she did this. We find that Satwinder Hayre, following her conversation, probably looked into the claimant’s employment, appreciated that the position he was in was still vacant and so closed it not appreciating that the claimant would get the automatically generated email. We find that this was not because the claimant had informed her he was disabled but was purely an administrative action. It was never going to remove the claimant from his new position and would be, as such, a pretty pointless act of retribution. Consequently, we find that this was not less favorable treatment as in all probability any comparator would have been treated exactly the same. Further, we find that this treatment, whilst unfavourable, was not because of something arising in consequence of the claimant’s disability.

[63]The claimant was absent on sick leave from 11 to 14 September 2022. The Case Number: 3302602/2023 17 return to work form dated 20 September 2022 gives the reason as a flare-up of arthritis. The sickness instances were recorded as four and the total sickness percentage was 27.5%. Once again, the claimant was not referred for a formal attendance disciplinary hearing. The claimant was only paid statutory sick pay and no company sick pay. We find that this was because he had used up all his CSP entitlement at that time and was not due to something arising in consequence of his disability.

[64]Whilst the claimant worked quite often well after 7am in August and early September, he was paid 5.62 hours overtime. This had been authorised by Lee Parker.

[65]It is clear to us that the claimant complained about having to remain at work after 7am from early September 2022. On 7 September 2022 he sent a WhatsApp text stating:- “FYI After this week I will NOT be staying any later than 7am regardless of what is left to do”.

[66]On 20 September 2022 he texted: “… We need to be able to leave as close to on time as possible…” and “…my time ain’t free and as we can’t take time off in lieu then I do expect to be paid for anything over my contracted hours…Therefore I will be leaving at 7am”.

[67]Also on 20 September 2022 the claimant sent an email to AskHR stating:- “I would like some clarity over having to work extra hours without time in lieu or being paid for extra hours? … Since accepting the job (21 Aug 2022) I am regularly having to stay up to two hours over my contracted hours each day, roughly 10 hours per week. Senior management tell me “This is expected” however I do not agree…”

[68]The respondent contends that the claimant’s reluctance to work past 7am was all to do with not being paid, was unrelated to his disability and that these contemporaneous texts demonstrate this. However, we have found that the contemporaneous medical evidence does support the claimant’s position that working past 7am did increase his fatigue and pain due to his disability. The fact that he was not paid overtime after 17 September 2022 also factored into his

complaints.

[69]On 20 September 2022 the claimant’s company sick pay entitlement rose to 6 weeks.

[70]The claimant was absent on sick leave from 16 to 26 October 2022. The claimant was only paid statutory sick pay. The claimant was only paid statutory sick pay and no company sick pay. We find that this was because he had used up all his Case Number: 3302602/2023 18 CSP entitlement at that time and was not due to something arising in consequence of his disability.

[71]The return to work form dated 31 October 2022 gives the reason as tooth pain. The following is recorded:- “His symptoms were tooth pain, hot sweating and face pain. It also caused inflammation throughout his body as he suffers from arthritis for which he has an injection on a monthly basis. This injection is an autoimmune suppressant. The side effect of this injection is that he is left susceptible to infection and absence [sic][abscess]”

[72]Matthew Standage who conducted the return to work interview directed that the claimant be invited to a disciplinary attendance meeting. This was held on 9 November 2022 by Matthew Standage. The claimant’s disability was discussed, and he complained that he had asked for workplace adjustments four times and had yet to receive them. The decision was to take no action and make workplace adjustments.

[73]Also on 9 November Matthew Standage had a meeting with the claimant to devise a Workplace Adjustment Plan (WRAP).

[74]The adjustments agreed included:- “Work four nights in a row and only contracted hours each night/week to enable me to rest as required”.

[75]We can see that from that date until early January 2023 the claimant left work within minutes of 7am and he has no complaints about that period.

[76]On 6 November 2022 Lee Parker held the 12 week probation review with the claimant.

[77]Issue 17 h. is: “Informing the Claimant on 6 November 2022 that he had not passed his probationary period as a Shift Manager because the Claimant could not commit to working more than his base contractual hours”.

[78]There is no dispute that Lee Parker told the claimant that he had not passed his probationary period as shift manager at the review meeting. It is clear to us that the claimant’s reluctance to work after 7am was an important part of both the 4/5 week review and the 12 week review decisions. The notes clearly demonstrate that it was discussed. In both his witness statement and oral evidence Lee Parker stated that the issue of only working his contractual hours was only part of the reason that he failed the claimant.

[79]In his grievance lodged on 7 November 2022 the claimant states:- “During the review, I was also told that as a manager, I am expected to regularly work beyond my contracted hours, for no additional pay or reward and that this is “part of being a manager”…” Case Number: 3302602/2023 19

[80]In a follow up email he states:- “I have regularly offered at least four hours of additional work per month but have been told this is not good enough and as a line manager, I am expected to stay late regularly, which I fundamentally disagree with.”

[81]We accept the claimant’s evidence that he was informed that he had failed his probation and that a significant part of the reason was that he could not commit to working more than his base contractual hours. We find that that was unfavourable treatment. Consequently, we find the fact alleged in issue 17h are proved.

[82]We find that the claimant’s reduced ability to work in excess of base hours was something arising in consequence of his disability.

[83]We find that the claimant was treated unfavourably because of something arising in consequence of his disability.

[84]We have taken into account the respondent’s stated legitimate aims, especially 43(b) and (c). However, we find that the treatment was not a proportionate means of achieving that aim. As will become clear, we have concluded that adjusting the claimant’s hours to 9.30pm to 7.30am would have enabled him to hand over in the morning and only work contracted hours.

[85]Issues 8. b. i. and ii. are: “b. “On 28 November 2022 during a sickness absence call related to the Claimant’s absence following a tooth extraction, did Ms Satwinder Hayre: i. ask the Claimant whether he could take painkillers and come to work (as that is what Ms Hayre had done before when her tooth was extracted); and ii. did she say to the Claimant that there was an expectation of the Claimant as a manager to try and make it into work?”

[86]The claimant had by this time started covertly recording meetings and we have the transcripts of the two conversations between the claimant and Satwinder Hayre on 27 November 2022 and on 28 November 2022.

[87]On 27 November 2022 the claimant texted Satwinder Hayre to state that he was unable to work that evening as he had a tooth infection and had been in urgent care. Satwinder Hayre replied asking him to call her. The claimant called Satwinder Hayre. The transcript contains the following exchange:- “SH: So can’t you take painkillers and come to work, light aisles or anything? RT: I’ve just had a tooth out Sat… SH: I understand that, I had my tooth out and then I came to work, I’m just asking, depending on how severe it is, you know, I get that. I understand that. But I’m just asking… If you can’t you can’t. Its fine.”

[88]As such, the facts alleged in the issue 8 b i are proved. In our judgment the Case Number: 3302602/2023 20 comments made by Satwinder Hayre were reasonable management of an employee’s sickness absence and enquiries as to whether he could come in but on light duties. We find that this was not less favourable treatment. Satwinder Hayre would have treated any other colleague absent sick in the same way.

[89]The transcript from the call on 28 November 2022 contains the following:- “SH: Yeah I appreciate what you are saying but the job role you have you’re a manager shift manager. You know if I was sick, my manager will ask me the question around Sat, okay you need to fulfil your job role and the position you’re in, and some try to understand is anything I can do?”

[90]The words alleged in issue 8 b ii were not said. However, we find that the extract quoted above does suggest an enhanced duty on a manager to try and make it into work even when off sick. To that extent we find the facts alleged in issue 8 b ii are proved.

[91]In our judgment the comments made and assumptions behind it were reasonable management of an employee’s sickness absence and the encouragement of a manager to return to work as soon as reasonably practicable. We find that this was not less favourable treatment as Satwinder Hayre would have treated any other management colleague absent sick in the same way.

[92]The claimant was absent on sick leave from 27 to 30 November 2022. The claimant was only paid SSP. The reason for the absence was tooth pain. The claimant was only paid statutory sick pay and no company sick pay. We find that this was because he had used up all his CSP entitlement at that time and was not due to something arising in consequence of his disability.

[93]The recommendation was to take the matter forward to a formal disciplinary attendance meeting.

[94]Natasha Miller was asked to conduct the disciplinary attendance meeting. The claimant was invited on 15 December and the hearing was on 22 December 2022. Natasha Miller had the claimant’s personnel file. As such, she would have had access to the return to work forms and the November 2022 WRAP.

[95]The claimant by this time had reached five relevant absences in the last 12 months. Natasha Miller treated the October and November 2022 absences due to the tooth infection as one absence. As such, she dealt with the claimant on the basis that he had had four absences.

[96]Although Natasha Miller does not appear to have taken it into account, the claimant’s percentage was above 20% at that time. However, we find that the high percentage absence was attributable to the skiing accident after which the claimant had 17 weeks absence. We note that following his return from that absence, although the return to work record recommended an invitation to a disciplinary attendance meeting, that did not happen. We infer that this was probably because he was recommended for and was training to be, a Trading Shift Manager.

[97]We have found that the respondent did have the PCP of requiring a certain level Case Number: 3302602/2023 21 of attendance in order to avoid a disciplinary sanction.

[98]Issue 17.a. is:- “17.a. “Dealing with the Claimant’s absences through the Respondent’s absence management policy.”

[99]The claimant’s absences were dealt with through the respondent’s absence management policy. We find that that was unfavourable treatment from the claimant’s perspective. Accordingly, the facts alleged in issue 17a are proved.

[100]At the hearing Natasha Miller recorded the four absences as:-(i) The skiing accident January to May 2022.

(ii) A reaction to a covid jab on 20 July 2022.

(iii) One days absence on 11 September 2022 for an adverse reaction to a booster jab. This was changed from four days absence due to arthritis as the claimant misreported the issue to Natasha Miller.

(iv) The two toothache related absences in October and November 2022.

[101]Issue 17. f. is: “Giving the claimant a formal written warning as a result of his sickness absence record”.

[102]At the reconvened meeting on 22 December 2022 the claimant was informed that he was to be issued with a first formal written warning. We find that that was unfavourable treatment and the facts alleged in issue 17f are therefore proved.

[103]The transcript records the following: “Natasha Miller: Your abscess wasn’t clear. So I have two options. Option 1 is no further action. Option 2, issue a written warning for absence level. So my decision is to issue you with a WRITTEN WARNING for your absence. My reason behind that is your four absences in the last 12 rolling months are not linked to any of your absences. Your sickness, should I say, is not linked to your body and what you’ve got, do you understand what I mean? So the first one was the accident then it was the covid jabs, which caused flu, the same as the flu jab it could be and then tooth pain. Ricky Taylor: Okay, yeah, but they are related to my arthritis. Because I take an autoimmune suppressant. Natasha Miller: So it’s not for the reason you’ve been off. It’s times. Yeah, that’s what we do with absence levels. “

[104]In her outcome letter dated 14 January 2023 Natasha Miller states:- “You have had 4 absences in the last 12 rolling months, these absences are not linked to any health issues. You are currently on a WRAP at work for your health concerns related to one of these absences and this is being followed through correctly by your Case Number: 3302602/2023 22 line manager but you have still gone off sick in this time.”

[105]We find that Natasha Miller’s reasoning is defective and wrong. The claimant repeatedly explained in return to work interviews in September, October and November 2022 that his sickness absence was caused by the susceptibility to infection that the medication for his disability laid him open to. The claimant explained this in the meeting as well. Natasha Miller appears to have disregarded this and issued a warning nevertheless on the basis of the number of absences.

[106]We find that the PCP did place the claimant at a substantial disadvantage compared to non-disabled colleagues as his disability increased his absences and increased his chances of reaching a trigger point and being subjected to the disciplinary attendance policy.

[107]We find that the respondent knew that the claimant was likely to be placed at that disadvantage.

[108]As such, we find that a duty to make reasonable adjustments arose.

[109]Further, we find that the unfavourable treatment in issues 17(a) and 17(f) was because of something arising in consequence of his disability, namely his increased periods of sickness absence.

[110]The reasonable adjustment contended for is:- “a. The respondent should have adjusted how the claimant’s absences were recorded when the absence in question was as a result of the claimant’s disability or exacerbated as a result of his disability.”

[111]We find that the aim of the absence policy was to manage sickness absence and that this was a legitimate aim.

[112]Having been told that he had failed his probation at the 12 week review meeting on 6 November 2022, the claimant raised a grievance. Satwinder Hayre acknowledged that she may well have known about that grievance when she decided to reinstate the claimant.

[113]The grievance was investigated by Martin Wells and the outcome letter is dated 4 January 2023. Complaints about a lack of training and support were upheld. Further, and in particular, the following is set out:- “3 After reviewing your file, I found no evidence of any WRAPS in place. Lee confirmed no WRAPS had been followed up and no adjustments documented. I did review that your most recent RTW and a WRAP has now been put in place and this is to be reviewed again in January. Based on the information available to me I uphold this point of your fair treatment.”

[114]We have taken account of the Acas Guide on Discipline and Grievance at Work 2020 at Appendix 4 which states:- “Where absence is due to medically certified illness, the issue becomes one of capability rather than conduct. Employers need to take a more sympathetic and considerate Case Number: 3302602/2023 23 approach, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable them to return to work.”

[115]We note that at the first disciplinary attendance meeting on 9 November 2022 it was acknowledged that workplace adjustments had not been put in place. No action was taken under the attendance policy as a result. A WRAP was conducted, and it does appear that for November and December the claimant was able to leave at or shortly after 7am. Nevertheless, as recited, Martin Wells’ conclusion cast doubt as to whether the WRAP was in fact being applied.

[116]Excluding the claimant’s skiing accident between January and May 2022, between May 2021 and December 2022 the claimant had seven episodes of absence. The 20 July 2022 absence was an adverse reaction to a covid jab which we find was probably related to the medication he was taking for his disability. Consequently, all seven episodes of absence were related to the claimant’s disability.

[117]We have taken into account that by 22 December 2022 the claimant had not been referred to Occupational Health for recommendations as to what adjustments might be required. The 9 November 2022 WRAP had been drafted by Matthew Standage and does not appear to have been fully implemented.

[118]In our judgment, a reasonable adjustment would have been to disregard all the claimant’s historic absences as they occurred at times before reasonable adjustments had been made. Once the WRAP recommendations were implemented, the claimant should have been treated as having zero absences. Thereafter, the attendance policy could have been applied to him, but with a higher trigger threshold. We note that in the outcome letter from Phillip McKechnie dated 11 July 2023, in response to a fair treatment complaint by the claimant, the following is set out:- “As discussed in your disciplinary appeal meeting with Jason Aston, we can support extending your trigger points and double (6% or 6 occurrences) is a reasonable adjustment…”

[119]It follows that we find that dealing with the claimant’s absences through the respondent’s absence management policy and giving him a written warning were not proportionate means of achieving the legitimate aim of managing the claimant’s sickness absence.

[120]Consequently, the claimant’s claims of unfavourable treatment and of failure to make reasonable adjustments by virtue of being subjected to the Sickness Absence Policy and unfavourable treatment for being dealt with under the absence management policy and given a warning succeed.

[121]Issue 17 d. is:- “17 d. Asking the Claimant whether being a manager was “for [him]” when he explained that he was not able to commit to working more than his base contractual hours.”

[122]This issue concerns the meeting on 22 December 2022 with Natasha Miller. We have listened to the recording and been provided with a transcript. The relevant Case Number: 3302602/2023 24 part of the transcript is as follows:- “Claimant: Because it just seems to be constant. Um the way I feel right now is I’m not sure if I want to come back after Christmas because I don’t believe my position is tenable. But obviously, Natasha Miller: Do you feel like um with your sickness that you have and its recurring quite a bit do you think that shift is the right thing?”

[123]Having heard the exchange, we find that this was a purely innocuous comment in the context of the claimant setting out his problems with working on that shift due to his disability and Natasha Miller doing no more than querying whether the shift was the right one for him in those circumstances. Consequently, we find that, although the comment was made, it was not unfavourable treatment. Accordingly, the facts alleged in issue 17d are not proved.

[124]We have found that the respondent did have the PCP of requiring managers to work additional hours on a daily basis.

[125]We find that that did put the claimant at a substantial disadvantage compared with non-disabled colleagues as it exposed him to greater fatigue and pain having to work past 7am.

[126]We find that the respondent knew, or could reasonably have been expected to know that the claimant was likely to be placed at that disadvantage. We note that Phillip McKechnie, in his fair treatment outcome letter dated 11 July 2023, recites the following:- “I agree that staying late on a regular basis does not support what was agreed in your WRAP and this should not be demanded of you.”

[127]The essential problem for the claimant in having to work past 7am was that the morning shift only began at 7am. Consequently, in order to affect a handover, it was inevitable that the claimant would have to remain after his contracted hours. We reject the suggestion that the other manager could have conducted the handover as we find that the claimant was told that he had to stay.

[128]We find that the reasonable adjustment would have been to alter the claimant’s hours so that he began his shift at 9.30 pm and finished his shift at 7.30am. This would have provided him with half an hour to conduct the handover within the contracted hours. Further, the reasonable adjustment would have been allowing him to leave at 7.30am irrespective of whether some tasks remained outstanding.

[129]We find that those adjustments would have been reasonable, and that the respondent failed to take those steps. Consequently, the claimant’s claim for failure to make reasonable adjustments arising out of the working additional hours succeeds.

[130]Issue 17 c. is:- “17 c. Requiring the Claimant to work more than his base contractual hours.”

[131]We find that the claimant was required to work more than his base contractual Case Number: 3302602/2023 25 hours. We find that that was unfavourable treatment.

[132]We find that the unfavourable treatment was not because of any of the things arising in issues 18 a-d. The treatment was because that was what the respondent expected of its managers on the night shift. And, in particular, that was due to the requirement for a handover and short staffing issues. Consequently, we find that the unfavourable treatment was not because of something arising in consequence of the claimant’s disability

[133]Issue 17 g. is:- “17 g. Halving the Claimant’s bonus because the Claimant received a written warning for his absence record.”

[134]In May 2023 the claimant was notified that his bonus had indeed been reduced as it included deductions made in line with the scheme rules for absence. We find that that was unfavourable treatment. Consequently, the facts alleged in issue 17 g. are proved.

[135]The reduction in the claimant’s bonus was as a result of receiving the written warning on 22 December 2022. We have found that warning was unfavourable treatment because of something arising in consequence of the claimant’s disability, namely his sickness absence. We find that the written warning should not have been administered and that, as a result, the halving of the claimant’s bonus was because of something arising in consequence of his disability. We find that it was not a proportionate means of achieving a legitimate aim as the written warning should not have been administered in our judgment.

[136]Issue 17 i .is:- “17 i. Changing the claimant’s shift pattern on 27 March 2023”

[137]On 21 March 2023 the claimant left work early and was certified as unfit to work thereafter due to ankylosing spondylitis and work related stress. The immediate catalyst for the claimant leaving work was apparently being told off for not bundling up unsold newspapers properly such that they could be collected, and a refund obtained.

[138]Be that as it may, on 20 March 2023, the weekly employee schedule rostered the claimant to work night shifts for the week commencing 25 March 2023 from Tuesday night to Friday night. The claimant complained and the shift pattern was altered to Monday night to Thursday night. Although the claimant was told that the change had been rectified immediately, in fact he had not been restored to the Sunday to Wednesday pattern that he had been working for some time.

[139]The change was done by Alfie Hopkinson-Badgery who had been the claimant’s line manager since 4 December 2022. We have a text message dated 22 March 2023 wherein he states that the schedules were originally done back in February. However, in his witness statement he states that on 23 March 2023 he changed the shift schedules to accommodate different periods of leave. An email dated 23 March states that Alfie Hopkinson-Badgery had changed the schedule. However, the change was to roster the claimant Monday to Thursday night. We find that that was unfavourable treatment and that accordingly the facts alleged Case Number: 3302602/2023 26 in issue 17 i. are proved.

[140]From the evidence of Jason Aston it is clear to us that there was an undercurrent of resentment from other managers that the claimant was not working at weekends at all. It may well be that Alfie Hopkinson-Badgery did change the claimant’s established work pattern to move him towards working at the weekend pursuant to the clause of the claimant’s contract of employment that allowed the shift pattern to be changed. We find that the change was probably made around 23 March 2023 and that there was probably some management frustration with the claimant.

[141]On 19 March 2023 there had been a confrontation with another manager, Arran Penny. The claimant had complained to Jason Aston in the morning and said that he refused to work with Arran Penny again.

[142]On 21 March 2023 Natasha Miller sent a message to shift managers asking them to ensure that newspapers went out for delivery or she loses money. The claimant found this antagonistic as he felt it was not his fault. He challenged it and there was a response that she did not appreciate his attitude. It was against that background that the claimant left early on 21 March 2023. We find that the change to the claimant’s shift pattern was not because of his sickness absence, reduced ability to work in chilled/cold areas, reduced ability to perform physical work including replenishment or his reduced ability to work in excess of base hours. Further, we find that it was not because of anything else arising in consequence of the claimant’s disability. We find that it was to meet operational requirements in circumstances where Alfie Hopkinson-Badgery wasn’t aware that the claimant would only work Sunday to Wednesday.

[143]Issue 17 j. is:- “17 j. During a meeting on 19th April 2023 to discuss the change to the Claimant’s shift pattern, did Jason Aston ask the Claimant to “consider how my other colleagues would feel having to work weekends to make up for me not working the additional days”.

[144]In his oral evidence to us Jason Aston stated:- “That was about whether you could change shifts and other managers always had to work weekends and I didn’t think that was fair. … Other shift managers have to work the majority of weekends. I felt it would be fair if he could do some weekends to support them as they had families as well.”

[145]In his further information the claimant describes Jason Aston saying the following:- “What you have got to remember is the impact that has on the other three guys you work with. I know it shouldn’t be your problem, but you have to remember that, although you don’t work weekends, means they get more weekends so they might say to you that pisses them off they have to work weekends.”

[146]Although we do not have evidence that the precise words contained in issue 17 Case Number: 3302602/2023 27 j. were said, we find that the gist of what it captures was said by Jason Aston during the meeting on 19 April 2023.

[147]In our judgment, the nature and effect of that comment was not sufficiently serious to constitute unfavourable treatment. It was a manager stating what was probably an accurate reflection of the other manager’s feelings. The claimant in his witness statement quotes from a text from Stephen Lindeman dated 25 November 2022 which states as follows:- “…all of us need to be fully flexible on nights we work going forward otherwise its not fair, can’t be anymore I’ll only do the start of the week or I’ll only do the end of the week (not aiming this at anyone in particular I’m just fed up of working all sorts and not having any structure”.

[148]Even if it did constitute unfavourable treatment, we find that it was not because of something arising in consequence of the claimant’s disability. It was arising in consequence of the claimant only working Sunday to Wednesday to suit his childcare needs on a Saturday.

[149]Issue 8 c. is:- “8 c. On or around 3 May 2023 arising out of a written warning appeal meeting, did the Respondent deliberately omit all record of any conversation related to the Claimant’s disability? i. When the Claimant sent back amended notes, did the Respondent ignore the Claimant?”

[150]This refers to the meeting on 3 May 2023 conducted by Jason Aston to deal with the claimant’s appeal against his written warning. The claimant’s appeal was rejected, and this was confirmed in a letter dated 3 May 2023. The letter sent to the claimant enclosed a copy of the notes taken at the meeting.

[151]The claimant was accompanied by a union representative, Steven B, and the notetaker was Laura Wood.

[152]Having been sent the notes the claimant responded citing three instances where he says discussion relating to his disability had been omitted from the notes. The claimant sent an email to Jason Aston stating:- “Interestingly, after reading through what seems to be fairly comprehensive minutes, the only details that seem to be omitted are the conversation regarding my disability, which is incredibly disappointing – but sadly the treatment I have come to expect (as a note the disability discriminaiton grievance I raised over four months ago still has not been followed up).”

[153]By definition, the notes of the meeting are not a transcript. The claimant obviously had the advantage of having covertly recorded the meeting. It is correct that some parts identified by the claimant do not appear in the notes. However, a lot of what was actually said is also not in the notes. In addition, it cannot be said that the notes omit all record of any conversation related to the claimant’s disability. For example, his representative is recorded as stating:- Case Number: 3302602/2023 28 “I am surprised his disability has not been taken into account or getting advice from professionals.” And “Rick has a letter from Rheumatology – shows JA” [Jason Aston]

[154]It is fair to say that Jason Aston did not respond to the claimant’s email with the amended notes.

[155]In our experience it would be quite normal for the notes of a meeting to be sent to the employee who is then given an opportunity to amend them as he or she thinks fit. In effect, that is what has happened on this occasion.

[156]We find that there was not a deliberate omission of some parts of the meeting relating to the claimant’s disability from the notes. Whilst Jason Aston did not respond to the claimant’s email pointing this out, we find that the claimant had placed on record parts that he thought were important. Consequently, we find the treatment alleged in issue 8. c. not proved.

[157]As already found, for his periods of absence in September, October and December 2022, the claimant was not paid company sick pay. The claimant went off sick on 21 March 2023 and remained off sick until he resigned on 20 July 2023 giving four weeks’ notice expiring on 17 August 2023. The claimant was not paid company sick pay during that period.

[158]Under the Attendance Policy for Hourly Paid Colleagues in force at the relevant time, the claimant would have acquired 26 weeks of company sick pay upon the completion of one year’s service. By the time of his appointment as a Trading Shift Manager on 21 August 2022 he had not used up all his sick pay eligibility. He had approximately 10 weeks remaining.

[159]As already observed, the maximum amount of company sick pay available for managers was significantly less than for hourly paid colleagues. At the time of the claimant’s appointment as a Trading Shift Manager on 21 August 2022, the claimant had less than two years’ continuous service and consequently he was only entitled to four weeks company sick pay. On the second anniversary of his employment on 20 September 2022, his entitlement to company sick pay rose to six weeks.

[160]The relevant clause we have to construe is as follows:- “You have to work for us for six months before any sick pay becomes available to you. It’s calculated on a 12-month rolling basis. If you use up all your sick pay eligibility, then you are not entitled to any further sick pay until the anniversary of the end date of your first sickness absence in the rolling 12 month period.”

[161]Some of the respondent’s witnesses have asserted that the claimant was not entitled to company sick pay for the first six months as a Trading Shift Manager as it was a new contract. That is clearly wrong and was not advanced as correct by the respondent before us.

[162]The claimant had 16 weeks of company sick pay between 31 January and 18 Case Number: 3302602/2023 29 May 2022. He had a further day of company sick pay on 20 July 2022.

[163]The effect of the claimant accepting promotion on 21 August 2022 was that his contract of employment was varied. The maximum amount of company sick pay available to him reduced from 26 weeks to 4 weeks. Applying the new contractual entitlement to the preceding 12 months, the claimant had used up all his 4 weeks company sick pay. He was therefore not entitled to contractual sick pay for his sickness absence from 11-14 September 2022. He had also used up his 6 weeks company sick pay in the rolling 12 months prior to his sickness absences on 16-26 October 2022 and 27-30 November 2022

[164]In both his notes on the construction of the company sick pay policy, Mr Carter has submitted that, in the event that a claim for company sick pay is made, the true construction of the policy is that one looks back 12 months, finds the first period of sickness absence in that 12 month period and that the eligibility for company sick pay only resumes on the anniversary of the end date of that sickness absence. The effect of the respondent’s construction of the clause is that, if an employee had used up their sick pay eligibility then they would have to have a full 12 month period sickness absence free before they became eligible for company sick pay again.

[165]Mr Carter told us that his instructions were that that was how the respondent applied the policy.

[166]However, on the final day of the hearing the respondent supplied to us a copy of the Attendance Policy for Retail Hourly Colleagues dated May 2021. On page 4 of that policy there are four worked examples of how the scheme operates. The wording is identical to the attendance policy for management. It is clear that once an employee has used up their full company sick pay entitlement the individual would not receive company sick pay until the anniversary of an absence end date whereupon the employee’s balance would refresh.

[167]Applying the policy to the facts we have, the claimant’s sickness absence ended on 18 May 2022. Consequently, on 19 May 2023 his company sick pay balance refreshed, and he became entitled to six weeks company sick pay. The claimant had used one days company sick pay on 20 July 2022. Consequently, we find that as of 19 May 2023 the claimant was entitled to six weeks company sick pay less one day. He no longer had the status of having used up all his sick pay eligibility. For the avoidance of doubt, we reject Mr Carter’s construction of the clause.

[168]We find that the claimant would have been entitled to six weeks less one day company sick pay from 19 May 2023.

[169]Issue 17.e. is:- 17. e. “Paying the Claimant statutory sick pay instead of company sick pay when he took sickness absence during his tenure as a Shift Manager”

[170]We find that the respondent did pay the claimant statutory sick pay instead of Case Number: 3302602/2023 30 company sick pay. Further we find that that was unfavourable treatment. The claimant was entitled to 5 weeks x 39 hours plus 1 week 3 x 10 hours, total 225 hours.

[171]However, we fid that paying the claimant only six weeks statutory sick pay was not because of any of the things arising in consequence of the claimant’s disability. It was due to an erroneous understanding of HR/Payroll that the claimant had to work six months in his new position in order to qualify.

[172]We have gone on to consider implications of the attendance policy being stated to be “non-contractual”.

[173]We note that Mr Carter did not make any submissions to us to suggest that that disqualifies the claimant’s claims for unauthorised deduction of wages.

[174]We have to consider whether company sick pay was wages properly payable, ie, pursuant to some contractual or other legal entitlement. It is clear to us that the respondent always paid company sick pay subject to its eligibility criteria. As such, we find that the respondent did not exercise its discretion not to pay employees even though they satisfied the eligibility criteria and that consequently the respondent was under a legal obligation to pay it unless and until the respondent altered the terms upon which it exercised its discretion and communicated that to its workforce. We find that there was a legal obligation on the respondent to pay company sick pay to eligible employees.

[175]Further, we find that the claimant had a legitimate expectation that company sick pay would be paid to him subject to eligibility and that that discretion would not be exercise perversely or irrationally. We find that the decision not to pay the claimant was perverse and irrational.

[176]Consequently, we find that the respondent made unauthorised deduction of the claimant’s wages in relation to company sick pay as regards 225 hours.

[177]As already recorded, the claimant started his final period of sickness absence on 21 March 2023.

[178]The claimant relies upon the implied term of mutual trust and confidence.

[179]As of 21 March 2023 we have found that the respondent was in breach of its duty to make reasonable adjustments as regards the treatment of the claimant under the absence management policy and requiring the claimant to work additional hours on a daily basis. The disability discrimination found relates to dealing with the claimant under the absence management policy, giving the claimant a formal written warning, halving his bonus and informing him that he had failed his probation. Further, the unauthorised deduction of wages continued until 30 June 2023.

[180]The claimant submitted a fair treatment grievance on 19 April 2023. The matters complained about included being given the written warning, being required to stay beyond his contracted hours and not being paid company sick pay.

[181]The claimant had the grievance meeting with Phil McKechnie on 12 May 2023 Case Number: 3302602/2023 31 and the outcome was only communicated to the claimant on 11 July 2023. The claimant’s complaints about his written warning and company sick pay were not upheld and his complaint concerning working excessive hours was partially upheld.

[182]On 20 July 2023 the claimant resigned giving four weeks’ notice. He states that he felt that the outcome of the grievance failed to address his concerns fairly or within a reasonable time.

[183]We find that the disability discrimination and failure to make reasonable adjustments that have been proved were sufficiently serious to constitute fundamental breaches of the claimant’s contract of employment. In addition, we find that the failure to pay the claimant company sick pay was sufficiently serious to constitute a fundamental breach of the claimant’s contract of employment. Consequently, we find that the respondent did breach the implied term of mutual trust and confidence.

[184]We find that the claimant did resign in response to those breaches of contract. We have considered whether the claimant delayed such that he affirmed the contract of employment. In our judgment it was entirely reasonable and in accordance with the Acas Code of Practice for the claimant to wait until the outcome of his grievance was communicated to him before taking action. Consequently, we find that the claimant did not affirm the contact of employment and that he was constructively unfairly dismissed.

[185]Issues concerning later discovered conduct of the claimant may form part of submissions on “just and equitable” compensation at the remedy hearing. Approved by: Employment Judge Alliott Date: 8 August 2025

The claims

[1]The respondent has made unauthorised deductions from the claimant’s wages and is ordered to pay the claimant the net sum of £2,403.82, being:(i) £2,145.94 contractual sick pay.

(ii) £257.88 bonus

[2]The respondent is ordered to pay the claimant a Basic Award of £1,636.47.

[3]The respondent is ordered to pay the claimant compensation in the net sum of £10,880.70, being:(i) For loss of earnings from 30 June – 17 August 2023: £2,229.60.

(ii) For loss of earnings from 18 August – 10 December 2023: £7,672.

(iii) For loss of pension 30 June – 10 December 2023: £431.42.

(iv) For loss of statutory rights: £400.

(v) For loss of staff discount: £147.68

[4]The respondent is ordered to pay the claimant the sum of £15,000 plus £2,400 interest thereon for injury to feelings. Case Number: 3302602/2023 2 Recoupment The total monetary award is £32,320.99. The prescribed element is £10,333.02.

[7]The prescribed period is 18 August – 10 December 2023.

[8]The amount by which the total monetary award exceeds the prescribed element: £21,987.97

Compensation

[1]From the claimant’s payslip for the period ending 4 March 2023, the claimant earned £2,363.82 gross per month. £2,363.82 x 12 = £28,365.84 ÷ 52 = £545.49 gross per week.

[2]The claimant’s net pay is agreed at £479.50 per week. Unauthorised deduction of wages

[3]The claimant should have been paid five weeks and three days contractual sick pay from 21 March 2023. £479.50 x five weeks = £2,397.50 Case Number: 3302602/2023 4 Plus, three days (30 hours) £368.85

[5]Total the claimant would have received by way of contractual sick pay: £2,766.35.

[6]Credit to be given for statutory sick pay received: £620.41 Total unauthorised deduction of wages £2,145.94.

[8]Loss of 50% of bonus: £307 gross from which we have deducted 16% to represent tax and National Insurance: total £257.88. Basic Award 3 x £545.49 = £1,636.47. Compensation

[1]Although the immediate catalyst for the claimant leaving work on 21 March 2023 was being told off for not bundling up unsold newspapers properly (see paragraph 137 of our judgment on liability) we have found that as of 21 March 2023 the respondent was in breach of its duty to make reasonable adjustments as regards the treatment of the claimant under the absence management policy and requiring the claimant to work additional hours on a daily basis. The discriminatory conduct arising out of being dealt with under the absence management policy included the claimant receiving a formal written warning, halving his bonus and informing him he had failed his probation (see paragraph 179 of our judgment on liability). The claimant’s MED 3 fit note dated 30 March 2023 signed him as not fit for work because of “Ankylosing spondylitis flare-up”. Thereafter, five of the six Med 3 fit notes until the EDT on 17 August 2023 referenced “work related stress”.

[2]We find that the claimant’s sickness absence was attributable to the discriminatory conduct made by the respondent.

[3]We find that but for the acts of the respondent the claimant would not have gone off sick on 21 March 2023 and would have continued working until the termination of his contract of employment on 17 August 2023. The claimant has recovered five weeks, three days contractual sick pay. We award a further six weeks’ pay less statutory sick pay: £2,877 - £647.40 = £2,229.60

[4]Following the claimant’s resignation the claimant did not apply for any other employment until 2025. His first employment was in November 2024 as a Passenger Assistant having been contacted out of the blue by a person he had previously worked for.

[5]In answer to the question why he did not seek alternative employment, the claimant told us that he was not mentally or physically able to seek alternative employment. Case Number: 3302602/2023 5

[6]We have no medical evidence to help us in assessing the extent to which the claimant’s inability to apply for and obtain alternative employment was attributable to actions taken by the respondent.

[7]It is clear to us that during the course of 2023 the claimant had other significant stressful life events occurring. In his injury to feelings statement the claimant states:- “Because I was repeatedly made to stay late, I arrived home late while driving my partner’s automatic car (due to my disability). This caused tension, arguments, and eventually domestic abuse incidents.  By Augst 2023 we separated for four months after multiple incidents.  My partner issued a civil claim against me in September 2023.”

[8]A reasonable adjustment that we have found should have been made was to end the claimant’s shift at 7.30 am to allow him to hand over to the morning shift without being required to work in excess of his contract hours. That, however, would not have removed what appears to have been a significant source of friction between the claimant and his partner, namely arriving home later in the morning when his partner needed the car to get to work. Further, that source of friction between the two of them would in fact not have been operational after the claimant went off sick on 21 March 2023.

[9]The claimant has put in the remedy bundle a document evidencing his expartner’s salary. When asked why he had done this he stated that his ex-partner did not want him to work and wanted him to remain at home.

[10]After the claimant’s EDT his Med 3 fit notes simply reference “stress-related problem."

[11]A further source of stress in late 2023 was that following the separation with his partner the claimant told us that he was facing homelessness and a court case concerning the furniture. Further, the claimant’s ex-partner reported the claimant for benefit fraud which froze his benefits for some time.

[12]The claimant accepted that there were multiple issues that were preventing him from getting back into employment.

[13]On 10 December 2023, following a work capability assessment, the Department of Work and Pensions determined that the claimant had a limited capability for work and work related activity. The claimant was not required to search for work.

[14]Doing the best we can, we find that the period of unemployment between 18 August 2023 and 10 December 2023 was attributable to the actions taken by the respondent. We find that the claimant was not in breach of his duty to take reasonable steps to find alternative employment during that period. However, we find that as of 10 December 2023 the claimant’s inability to work was not attributable to the actions taken by the respondent and was due to the far greater stresses resulting from the break-up of his relationship. Accordingly, we award loss of earnings for the period 18 August -10 December 2023. Case Number: 3302602/2023 6 16 weeks x £479.50 = £7,672.

[15]The claimant has claimed pension loss which he calculates at £19.61 per week. We accept that figure as it is lower than the respondents. We award pension loss for 22 weeks. 22 x £19.61 = £431.42. Statutory rights

[16]We would award £500 for loss of statutory rights for an employee working a fiveday week. The claimant worked a four-day week and, accordingly, we award £400. Loss of staff discount

[17]The claimant was in receipt of a 10% staff discount. The claimant claims £9.23 per week. That suggests a weekly grocery shop of £92.30 which we find is realistic. We find that someone in receipt of a 10% discount was highly likely to only shop at Sainsburys. Accordingly, we award: 16 weeks x £9.23 = £147.68. Injury to feelings

[18]We have taken into account the following matters.  We have no medical evidence as to the effect on the claimant.  The duration of the discriminatory conduct was relatively short at six months.  The respondent’s conduct was not overt or deliberate and some attempts were made to address his problems.  The discriminatory conduct led to the claimant losing his job.

[19]Because of the aforesaid factors, we consider that this case falls within the mid Vento band, which at the material time was £11,200-£33,700. In our judgment, it falls towards the lower end of that band and, in our judgment, an appropriate figure would be £15,000 for injury to feelings. £15,000 represents approximately seven months net earnings and is a significant sum without being excessive.

[20]We have taken 15 December 2023 as the mid-point of the discriminatory conduct and awarded interest at 8% per annum for two years to 15 December 2025. £15,000 x 16% = £2,400

[21]The claimant has claimed aggravated damages. In or judgment this would not be an exceptional case where aggravated damages should be awarded. The manner of the conduct was not high-handed, malicious, insulting or oppressive and there was no motive. Case Number: 3302602/2023 7

[22]The claimant has claimed an Acas uplift. Whilst the claimant may disagree with the outcome of the grievance hearing, we find that there was no breach of the Code of Conduct. Accordingly, we do not award an Acas uplift.

[23]The respondent has invited us to reduce the claimant’s awards as it would be equitable to do so based on misconduct discovered after the claimant’s dismissal. This relates to covertly recording meetings and also two comments of an insulting nature about the claimant’s line manager. We find that these fell short of repudiatory breaches of contract and would, at best, have constituted misconduct warranting a warning. We find that it would not be equitable to reduce the claimant’s awards. Grossing up

Remedy

[24]Although the claimant’s total damages slightly exceed £30,000, we have assumed that the unauthorised deduction of wages claim will not be taxable in the claimant’s hands. If for any reason that turns out to be incorrect, then we record here we would have grossed up the total award to take into account the taxable element. Approved by: