Mr P McGrath v Bupa Insurance Services Ltd: 3304214/2023 and 3314363/2023 Mr P McGrath v Bupa Insurance Services Ltd: 3304214/2023 and 3314363/2023
EMPLOYMENT TRIBUNALS
Case No 3304214/2023, 3314363/2023
Between
Mr P McGrathClaimantBupa Insurance Services LimitedRespondent
Before
Employment Judge HawksworthMs A Akers (instructed by counsel) for respondentDate 21 October 2025
JUDGMENT
The respondent’s application for strike out of the claimant’s claims is refused. Approved by: RESERVED JUDGMENT[1]At the relevant time, the claimant was disabled within the meaning of section 6 of the Equality Act 2010 by virtue of depression and by three other conditions which the respondent accepts amounted to disabilities within the meaning of section 6.[2]The respondent did not treat the claimant less favourably or unfavourably because of a disability or because of something arising in consequence of a disability. The complaints of direct discrimination and discrimination arising from disability fail and are dismissed.[3]The complaints of indirect disability discrimination fail and are dismissed.[4]The respondent did not fail to make reasonable adjustments for the claimant. Those complaints fail and are dismissed.[5]The respondent did not subject the claimant to unwanted conduct which was related to disability. The complaint of disability-related harassment fails and is dismissed.[6]The respondent did not subject the claimant to a detriment because of a protected act. The complaints of victimisation fail and are dismissed.[7]The claimant resigned and was not dismissed. The complaint of constructive unfair dismissal fails and is dismissed. 1 of 47
REASONS
[1]This section gives some introductory details about the claims and about the main hearing. Claims and responses[2]The claimant worked for the respondent as a member service advisor from 13 January 2020 until his resignation with effect from 31 December 2023.[3]The claimant’s first claim was presented on 20 April 2023, before his resignation. He brought complaints of disability discrimination and victimisation. The claimant’s second claim was brought on 10 December 2023 during the notice period after his resignation. That claim was for constructive unfair dismissal.[4]The respondent presented its responses on 1 June 2023 and 8 May 2024. The respondent defends the claims. Preliminary hearings[5]Preliminary hearings for case management took place on 6 November 2023 and 11 March 2025. A list of issues reflecting the claimant’s complaints in his first claim was prepared by Judge Annand at the first preliminary hearing and was included in the case management orders sent to the parties after that hearing.[6]The claimant was unable to attend the second preliminary hearing because he was unwell. At that hearing Judge Daniels refused an application to dismiss the claim for non-attendance. He made orders about further steps for the parties to take to prepare for the main hearing. Case management on days 1 and 5 of the main hearing[7]The main hearing took place over 9 days from 28 July 2025 to 8 August 2025. It had been due to take 8 days but during the hearing, with the agreement of the parties, I added another day (8 August).[8]During the main hearing, I had to decide some case management issues, in particular on day 1 (28 July) and day 5 (1 August). Written case management orders were made on 28 July 2025 and sent to the parties on 30 July 2025 (the day 1 orders) and further written orders were made and handed to the parties on 1 August 2025 (the day 5 orders). I record the case management issues here in summary only.[9]At the start of the hearing on 28 July, the respondent applied for the claim to be struck out for non-compliance with tribunal orders/failure to actively pursue the 2 of 47 claim. I refused the application and gave reasons at the hearing. My reasons were explained in summary in the day 1 orders.[10]The respondent applied in the alternative for the hearing to be postponed because the claim was not ready for hearing. In particular, witness statements had not been exchanged. The claimant’s preference was for the hearing to go ahead. He had not prepared a witness statement but he had provided detailed further particulars setting out the factual basis for his complaints. The respondent’s statements were ready.[11]I told the parties that my provisional view was that the hearing should not be postponed because that would mean a long delay in a case where there had already been delays and previous postponed hearings. I suggested that the claimant’s claim form and further particulars could be treated as his witness statement and that we could use some of the scheduled hearing time as additional preparation time. I invited the parties to say how long they would need to prepare their questions for the other party’s witnesses. Both said that they thought two days to prepare their questions would be sufficient. I discussed with the parties how long they would need to ask the witnesses their questions, and we agreed a timetable which would allow the evidence and closing remarks to be concluded in the remaining hearing days. That timetable was included in the day 1 orders.[12]Finally, the hearing had originally been due to be heard by a panel of three: a judge and two non-legal members. Unfortunately, there were no non-legal members available to hear the case. The respondent said that this was another reason why the hearing should be postponed, so that it could be decided by a panel of three. The claimant said that he would prefer to go ahead with me deciding the case on my own, because of the previous delays. I decided that the lack of available members was a material change of circumstance which favoured changing the panel composition from a panel of three to a judge on their own, in accordance with the Practice Direction issued by the Senior President of Tribunals on 29 October 2024 and paragraph 24 of the accompanying Presidential Guidance.[13]Having discussed those matters with the parties and having considered their views, I decided: 13.1. that the hearing would not be postponed; 13.2. the claim would be decided by me on my own, not by a panel of three; 13.3. the claimant’s claim form and further particulars would be treated as his witness statement; 13.4. 29 July and 30 July would be additional preparation time for the parties, and reading time for me; 13.5. the evidence part of the hearing would start on 31 July.[14]These case management issues concerned the first claim. There were also case management issues relating to the second claim (claim 2). Claim 2 was presented after the claimant’s resignation. The complaints in claim 2 had not 3 of 47 been clarified or dealt with in the respondent’s witness statements. The parties accepted my suggestion to take some time on day 1 to understand the complaints in claim 2. The claimant said claim 2 was a claim of constructive unfair dismissal where the things he relied on as breaching his contract and entitling him to resign were the same as the things alleged in claim 1, plus one additional point regarding seating arrangements in the office. The claimant said he understood why it may have appeared from what he said in box 8.2 of the ET1 form in claim 2 that he was also bringing complaints of disability discrimination in claim 2, but these points were intended to refer back to claim 1. He only wanted to claim constructive dismissal in claim 2, because claim 2 was all about wanting to get his job back. Claim 2 was therefore quite focused.[15]I recorded the issues in claim 2 in the day 1 orders. After the day 1 orders were handed to the parties (but before they were emailed to them) the parties told me that they both agreed that during the two days preparation time they would also carry out preparations for claim 2 so that, time permitting, claim 2 could also be dealt with at this hearing. The preference of both parties was for both claims to be resolved at this hearing rather than having a long wait for the hearing of claim 2.[16]Four of the respondent’s witnesses (Mr Evans, Ms Bryan, Ms Lomax and Ms Green) prepared short supplemental statements in relation to claim 2 (8 pages in total). In the event, there was time to deal with both claims at the main hearing.[17]The day 5 orders included an updated timetable and recorded that another day had been added to the hearing time in case it was needed (which it was). The day 5 orders also included the final version of the list of issues in both claims and gave instructions to the parties about the steps for them to take to prepare for the remaining hearing days. Evidence at the main hearing[18]The timetable below explains what happened on each day including what witness evidence I heard.[19]The claimant, Ms Akers (the respondent’s counsel) and I attended in person throughout. Some of the respondent’s witnesses attended in person and some by video as explained in the timetable; the claimant did not object to that. Monday 28 July Preliminary matters (in tribunal) Tuesday 29 July and Additional preparation time for parties Weds 30 July to prepare their questions to witnesses (see below) – no attendance at the tribunal on either day Thursday 31 July Claimant’s evidence (hearing in Friday 1 August tribunal for the following days) Monday 4 August (morning) Monday 4 August (afternoon) Respondent’s evidence: 4 of 47 Peter Evans Tuesday 5 August Michelle Bryan (by video) Beverley Lomax (by video) Wednesday 6 August Rebecca Green (by video) Alastair Ferguson Bradley Hall Thursday 7 August Not a hearing day Friday 8 August Ailsa Honeyman Closing remarks by both parties Documents and statements[20]The documents and statements before the tribunal were: 20.1. The main bundle (4 lever arch files going up to page 1811) 20.2. Supplemental bundle 1 (71 pages) 20.3. Supplemental bundle 2 (32 pages) 20.4. The claimant’s further particulars of 26 September 2023 and attachments (212 pages numbered ‘FP001’ etc); 20.5. The respondent’s witness statements and supplemental witness statements.[21]Some documents about coaching were added by consent to the main bundle, as pages 1812, 1813 and 1814.[22]Some of the documents in the main bundle were duplicated in the claimant’s further particulars pack. In the hearing we used both the main bundle and the further particulars pack and we cross-referenced between them where necessary. This was because the claimant found it easier to refer to documents in the further particulars pack.[23]In these reasons, page numbers refer to the main bundle. References to pages in the supplemental bundles have the prefix SB1 or SB2. References to pages in the claimant’s further particulars have the prefix FP. Reserved judgment[24]As I said at the end of the hearing, I am grateful to the parties and representatives for their hard work and assistance during the hearing which enabled the evidence and the submissions to be completed in the time available. The claimant represented himself in these proceedings; he showed notable care and attention to detail in the presentation of his case.[25]The parties’ closing remarks were concluded at 15.30 on the last day of the (extended) time allocated for the hearing. There was insufficient hearing time remaining for me to make my decision and tell the parties. I reserved judgment. I apologise to the parties and the representatives for the delay in sending out this reserved judgment and reasons, this reflects the current volume of work in the tribunal. 5 of 47 Issues[26]The list of issues sets out the factual and legal questions the tribunal has to answer when deciding whether a claim or any part of it succeeds.[27]In this case, the process for identifying the list of issues was as described above. A copy of the final version of the list of issues in both claims was included in the day 5 orders and is also in the appendix below for ease of reference.
Findings of fact
[28]This section explains the facts, that is my decision about what happened during the claimant’s employment, focusing on the issues he is complaining about. I set out these facts in broadly chronological order, except where it assists to group together facts relating to the same issue. Working arrangements[29]The claimant started employment with the respondent as a member service advisor on 13 January 2020. After his initial training period the claimant was line managed by Peter Evans. Mr Evans and the claimant worked in the same office.[30]The office where the claimant worked was mostly open plan and the respondent operated hot desking. Desks could be booked using an online booking system called Condeco. In general people and teams regularly sat in the same place or area. The claimant regularly sat at the same desk because he preferred to sit in a quieter part of the office.[31]Member service advisors were issued with a work laptop to facilitate hot desking. Overnight or when not in the office, they would normally take their laptop home with them. This also meant they could use it when working from home.[32]The claimant has ASD, ADHD, and dyslexia. He found having his work laptop at home made it difficult for him to compartmentalise work and home life (FP page 024). Following a suggestion from his psychologist, the claimant agreed with Mr Evans that he could leave his laptop in a locker at work rather than taking it home with him. The claimant almost always worked in the office rather than from home. The respondent’s sickness policy[33]The respondent has a sickness absence policy (page 197). The usual sickness absence triggers are either 2 separate absences lasting 2 work weeks or more, or 3 separate absences of any duration in a rolling 12-month period (page 205). A return to work meeting is conducted after every occasion of absence and the sickness absence history is reviewed.[34]When the triggers are met, the first step is to consider issuing an attendance 6 of 47 letter (also known as a letter of concern). The letter outlines the employee’s sickness record over the previous 12 months, explains what support the respondent can offer and sets out agreed actions for the employee.[35]If there is a further episode of sickness after a letter of concern is issued, the manager reviews the 12-month period before the date of the new period of sickness. An absence capability meeting may be held, where there is a range of possible outcomes including issuing a formal written warning.[36]Once a formal written warning has been issued, attendance levels are monitored from the date of the warning, rather than the previous 12 months. Absence and absence reviews[37]The claimant had 11 days’ absence on five occasions from July to November 2020. He was referred to the respondent’s occupational health provider who prepared a report dated 11 November 2020. The report made recommendations including a stress risk assessment, and adjustments to performance targets because the additional time the claimant required for processing was likely to impact performance (page 388). The report said that the claimant was at risk of increased sickness absence because of his[38]Mr Evans carried out a stress risk assessment for the claimant on 16 November 2020 (page 390). The steps that were identified to manage stress were implemented.[39]In December 2020 Mr Evans issued an attendance letter to the claimant (SB1 page 5).[40]The claimant had some more sickness absences in 2021. An occupational health report on 4 June 2021 recommended a stress risk assessment and additional breaks to improve concentration (page 620). It said the claimant was at risk of increased sickness absence because of his depression.[41]A stress risk assessment discussion took place on 22 June 2021 (page 622). Actions were identified to address stress triggers.[42]Mr Evans held a formal capability meeting with the claimant on 28 and 30 September 2021 and issued a first written warning (page 671). The claimant appealed against the warning. The appeal was successful (page 697). The appeal manager recorded that by the date of the appeal in November 2021, adjustments had been put in place for the claimant, including DSE assessments, shift changes, additional breaks, regular one-to-ones and coaching and feedback sessions (page 700). However, the appeal manager decided to remove the warning because there had been a delay in implementing some of the reasonable adjustments.[43]The claimant had some more sickness absences in October and November 2021. On 16 December 2021 he had an absence capability meeting with a 7 of 47 manager, Alastair Ferguson. Mr Ferguson issued a letter of concern (page 729). He was considering issuing a formal written warning but was advised by the respondent’s human resources team that a letter of concern would be more appropriate as the claimant was waiting for some more adjustments to be put in place following an occupational health report.[44]The claimant had some more sickness absences in the first part of 2022. The absence was for covid (3.5 days), headache (3 days) sunburn (2 days) heat stroke (0.5 days) and anxiety (2 days).[45]The claimant was referred to occupational health and a report was produced on 9 May 2022 (page 870). It said that the respondent may wish to consider maintaining structure where possible, for example in relation to rota, processes, scripts and meetings. It repeated the earlier advice that the claimant was at risk of increased sickness absence because of his depression.[46]On 24 May 2022, the claimant had an absence capability meeting with Mr Evans. Mr Evans had allowed the claimant some flexibility under the sickness policy, because the rolling 12 month sickness triggers were met on each occasion of the claimant’s absence in 2022 (since the letter of concern on 16 December 2021) but no steps were taken until the fifth absence.[47]Mr Evans looked at the five absences in 2022. He issued a first written warning (page 892). He did so because the claimant’s sickness absences had exceeded the triggers in the respondent’s sickness absence policy.[48]The claimant’s covid sickness absence was one of the absences listed in the written warning which Mr Evans issued. This absence related to a period in which the claimant had tested positive for covid from 31 January 2022 to 3 February 2022. He was well enough to work from home but he did not have his laptop with him. He had left it in a locker at work, as agreed with Mr Evans. The claimant asked Mr Evans to courier his laptop to him. Mr Evans first decided to wait for confirmation of the claimant’s covid diagnosis. He then had to get assistance from the facilities team to open the claimant’s locker, and then had to check whether the respondent’s security policy permitted the laptop to be sent via courier. The claimant received the laptop on 3 February 2022. Because of restrictions on space where he was living, the claimant could only work from home in the mornings.[49]The claimant was referred to occupational health again in July 2022 and a report was produced on 8 July 2022 (page 1005). It said (as previous reports had) that the claimant was at risk of increased sickness absence in comparison to his peers due to ongoing depression and that the respondent may wish to review attendance targets to take this into consideration. It also said he would benefit from a regular work routine to help manage his health and symptoms better. I find that the respondent knew or should have known from 8 July 2022 that the claimant was disabled by dyslexia, ADHD, autism and depression. This is because of the advice and information about the various elements of the statutory tests which the occupational advisor provided about these conditions in the report of that date (page 1007). 8 of 47[50]The claimant appealed against the written warning which Mr Evans had issued. In his appeal the claimant said that giving a warning to someone with a mental health condition is discrimination under the Equality Act.[51]A manager, Beverley Lomax, heard the appeal on 29 July 2022. She agreed with the claimant that sunburn and heatstroke should have been treated as one occasion of absence not two. Ms Lomax also agreed not to take the recent 2- day period of anxiety-related sickness absence into account. However, even with these changes, when Ms Lomax looked at the 12-month period before the claimant’s most recent sickness absence at the time of the meeting on 24 May 2022, the claimant had 11 occasions of absence totalling 46 days absence. Further, even if she discounted all occasions of stress-related absence in that period, the claimant still had 6 occasions of sickness totalling 23.5 days in 12 months. Ms Lomax decided to uphold the original decision to issue the claimant with a first written warning (page 1036). The letter said the decision was final. Working hours and flexible working request[52]Member service advisors were required to work a late shift and a weekend shift.[53]The claimant’s working pattern included a late shift on Wednesdays and a rotating weekend shift on Saturdays. On 3 February 2023, the claimant submitted a flexible working request asking for fixed Monday to Friday shifts without a late shift or a weekend shift (page 1246). The request said that it was for medical reasons and to help his condition.[54]A manager, Michelle Bryan, considered the claimant’s flexible working request. She had a meeting with the claimant on 23 February 2023 to consider his flexible working request. On 3 March 2023, she wrote to the claimant rejecting his request. Ms Bryan’s decision was based on advice from the respondent’s planning team who had told her that the claimant’s request could not be accepted in full. She suggested an alternative shift pattern which addressed the request not to have a rotating Saturday shift, but still included a late shift on Wednesdays.[55]The claimant appealed against the flexible working request outcome. The appeal was held in May/June 2023. I return to the appeal below.[56]Towards the end of March 2023 Ms Bryan took over line management of the claimant from Mr Evans, as he went on a period of extended leave. Ms Bryan was based in Manchester and managed the claimant remotely.[57]In reliance on the occupational health reports, Ms Bryan extended the sickness absence triggers for the claimant. His absence history shows that for the period when he was managed by Ms Bryan, there were times when he exceeded the standard triggers but no letter of concern or warning was given (page 1799). In May 2023 Ms Bryan offered the claimant a stress risk assessment review but he declined as he was not allowed to record it (page 1320). 9 of 47 Metrics and the claimant’s performance[58]The respondent had performance metrics for its member service advisors. These included Bupa Ways of Working or WoW (page 1309). There were standard numbers of calls and standard call times for member service advisors, with standard break times including a 30 minute break during the shift.[59]Some of the metrics were adjusted for the claimant, for example he was required to complete fewer customer calls per hour: from 2022, his target was 3 rather than 5. The claimant’s average call time target was increased by 15% to allow him more time to handle calls. He also had reduced customer facing time, and additional breaks, including two minutes after each call from 2020 (page 390) and an additional 10-15 minute break each hour (page 1322). When he had an increase in psychological symptoms, he was allowed another short break of 5-10 minutes from his work area to allow him to settle his symptoms. The claimant described these periods of increase in psychological symptoms as burnout or meltdown.[60]The respondent conducted regular quality assurance checks by listening to customer calls. It did not adjust the quality assurance targets for the claimant.[61]Ms Bryan provided the claimant with coaching after the quality assurance checks (FP page 117). The claimant performed well against the metrics and passed the quality assurance checks. He was at pay level 3, the highest level (page 1459). His quality assessment levels were good: 92% in 2022 and 79%/85% in July/August 2023. Over the four years he worked for the respondent the claimant’s quality assurance was about 90%. There were no performance issues raised with him (page 1322). Issue with office seating[62]In March 2023, an issue arose about the seating in the office. The claimant preferred to have a fixed place and usually sat at the same desk. In a return to work meeting with Mr Evans in 2022 the claimant said not having a set desk may have affected him (page 828). Mr Evans reminded the claimant that he could book his preferred seat using the Condeco system. At the time the office was still quiet due to hybrid working arrangements brought in following covid, and regularly booking a specific desk was readily achievable. If someone was sitting in the claimant’s preferred seat, Mr Evans or the claimant would ask them to move.[63]The claimant’s preferred desk was quite near to the bank of desks where new starters sat with their coaches. This area was referred to as the Academy. This was a quieter part of the office.[64]On 23 March 2023 the claimant was having a phone call with Mr Evans. The claimant was speaking quite loudly. Another manager, Bradley Hall, became aware that the claimant’s call was disturbing the trainees. Mr Hall could hear that the claimant was speaking to Mr Evans, and so he messaged Mr Evans and asked him to ask the claimant to move into a room. Mr Evans apologised to Mr Hall, and said the call was finished. Mr Hall told Mr Evans that he would ask 10 of 47 the claimant not to sit with the Academy the next day. Mr Evans replied to say that was OK (SB1 page 7).[65]After his exchange of messages with Mr Evans, Mr Hall spoke to the claimant briefly and asked him to be careful about how loud he was being on his calls, as it was distracting for the new starters. The claimant replied that he had finished his call.[66]Later that day the claimant made another call and had another conversation which was also quite loud. This was to Acas. Mr Hall was concerned that other staff were being disturbed and that customers on calls could hear the claimant. He politely asked the claimant to move seats to a place further away from the new starters. The claimant did so.[67]The following Monday, 27 March 2023, Mr Hall saw the claimant was sitting near the Academy again. He messaged the claimant at 09:13 and asked him to move seats and not sit with the Academy. The claimant did not move seats. Mr Hall spoke to the new starters who said they were not disturbed by noise that day, so Mr Hall did not follow up his request to the claimant. At 15:43 the claimant replied to Mr Hall to say that he had asked another manager and she was happy with him sitting where he was. He said he had checked with the Academy and they agreed he was not distracting them. He said he would continue to sit where he was (FP page 036). Mr Hall did not take any further action about this.[68]After this the claimant continued sitting in his usual seat. Claimant’s March 2023 grievance[69]On 24 March 2023 the claimant sent a grievance form to Ms Lomax (page 833). Under a heading about ‘the main points of your grievance’ the claimant said that a covid absence and a sunburn/heatstroke absence in 2022 had been logged incorrectly, leading to a warning being issued.[70]In the same section the claimant wrote: ‘+ (separately) Discrimination’. He gave no details to explain what the discriminatory treatment was.[71]The respondent’s grievance policy anticipates that a meeting will be held when a person makes a formal grievance. It says that a grievance should contain a brief description of the reasons for the complaint including any relevant facts, dates, places and names of individuals involved. The policy explains that a person making a grievance might be asked for further information or clarification ahead of any formal meeting (page 193 and 194).[72]Ms Lomax responded to the claimant on 28 March 2023 (page 837). She said that the points he had raised had been dealt with during the appeals process. She said she could not see any new information, evidence or grounds for a grievance and therefore she did not intend to hear the grievance.[73]The claimant replied to Ms Lomax and asked whether she was saying there was no grounds for a grievance either in relation to the 2022 warning or to the 11 of 47 discrimination complaint. He pointed out that she had not asked any clarification questions about the grievance he had raised. After a further exchange of emails, Ms Lomax said in an email on 29 March 2023 that there was very little information in the form for her to understand the grievance. She invited the claimant to revisit his form and add the details of his grievance, with evidence relating to why he felt he had faced discrimination. She said she would then revisit the grievance (page 836).[74]The claimant did not any provide any further details or information. He did not ask for a meeting to explain his grievance. Ms Lomax did not take any further action in relation to his grievance.[75]The claimant notified Acas for early conciliation on 29 March 2023 and the early conciliation certificate was issued on 6 April 2023. On 20 April 2023 the claimant presented his ET1 claim form in claim 1. Firebreak period[76]In April 2023, the respondent had a firebreak period. The firebreak period was brought in because there was a backlog of customer calls, and recruitment was not fast enough to meet demand. The respondent needed an ‘all hands on deck’ approach. During the firebreak period, the respondent adopted a policy that new or short notice annual leave requests would not normally be permitted. Annual leave requests which had already been approved and sick leave were unaffected by the firebreak period.[77]Sometimes when he was experiencing an increase in psychological symptoms during the day, the claimant asked to leave early and to take the remaining time that day as annual leave. This was allowed on some occasions. During April 2023 the claimant made three short notice requests for annual leave which were all declined because of the firebreak period which was in place at the time.[78]On 6 April 2023 the claimant asked to take annual leave for the remainder of that day because he had had some bad news (page 1325). Ms Bryan said annual leave would not be an option because there was no availability for cover. She said she would be happy to support the claimant with additional breaks instead.[79]On 11 April 2023 the claimant asked if he could take some holiday that day so that he could finish his shift early and catch the last shuttle bus to the station to avoid getting drenched as it was raining (page 1327). Ms Bryan said that unfortunately all short notice requests were being denied.[80]On 12 April 2023 the claimant asked if he could take some leave for the rest of the day because he felt he was having a meltdown (page 1329). Ms Bryan told him that although she could not approve short notice annual leave because the business was too busy, it would be wise for the claimant to think about taking time off sick if he was unwell. She offered support, telling him she was free to talk. 12 of 47 Flexible working appeal[81]The claimant’s flexible working request appeal hearing took place on 19 May 2023. It was chaired by Ms Lomax. The claimant asked for it to be chaired by someone else as Ms Lomax had heard his appeal against his written absence warning.[82]The appeal was rescheduled for 2 June 2023 with another manager, Maxwell Jarvis.[83]In the period between the claimant’s flexible working request being refused and the appeal, the claimant was referred to occupational health. An occupational health report was provided on 14 April 2023 (page 1321). The claimant’s shift pattern was specifically discussed at the consultation. The advisor recommended that the impact of the claimant’s symptoms on his functionality would be minimised by a shift pattern which did not interfere with his sleep pattern and which allowed time for an exercise routine.[84]Mr Jarvis upheld the claimant’s flexible working request appeal and agreed the claimant could work the fixed shift pattern he had requested (page 1369). The claimant’s desk arrangements[85]On 31 May 2023 the claimant was in contact with Ms Bryan to say that someone was sitting in his desk. He said that he had an ‘excluded’ seat ‘as part of an OH’. He asked if Ms Bryan could block book the desk. She said was not aware of this but would look into it for him (SB2 page 27).[86]In fact the occupational health reports did not specifically recommend an excluded desk for the claimant. One emphasised the need for maintaining structure for the claimant, particularly in the context of rotas, processes, scripts and meetings (page 871). Some of the reports included a link to a ‘tips’ page on the website of the National Autistic Society (page 620 and 1006). The claimant said that one of the tips on that webpage was about having a set desk. The OH report of April 2023 said that the claimant experienced difficulties with adjusting to a change of structure (page 1321).[87]I find that Ms Bryan and the claimant agreed a way forward in May 2023. I make this finding because the claimant did not raise this again for some months and when he did he said ‘I thought we sorted this out’ (SB2 page 27). I find that it is likely that they agreed that the claimant would book out his preferred desk though the Condeco system.[88]On 7 August 2023 there was someone in the claimant’s preferred seat again and he messaged Ms Bryan. She replied to say that the claimant could book the desk for each shift and then if someone was at his desk, he could ask them to move (SB2 page 28). Ms Bryan asked HR to look into whether it would be possible to provide an assigned desk for the claimant. The claimant did not mention this again for some months and Ms Bryan understood that in the meantime he had not had any further issues with booking his desk. 13 of 47 Coaching[89]Both Mr Evans and Ms Bryan when line managing the claimant had regular one-to-one discussions with him, and coached him on aspects of the role he found difficult. For example, the claimant had coaching on showing empathy and call ending.[90]In August 2023 Ms Bryan went through some calls relating to steroid injections with the claimant, because he said he was confused about the respondent’s policy on this (page 1457). The claimant identified that he needed more training on the respondent’s policy on steroid injections. The respondent provided training on 10 August 2023 and on 6 October 2023 (page 1812 to 1814). The claimant’s September 2023 grievance about bullying[91]On 11 September 2023, while he was on sick leave, the claimant sent an email to a senior manager, Rebecca Green (page 1481). He said he had a concern about bullying and had been told to contact her about it. Ms Green replied on 12 September and met with the claimant on 14 September to discuss his concerns informally. She summarised their conversation in an email of 19 September 2023 and set out the steps she would be taking to assist (page 1489). The bullying allegation concerned a discussion at a return to work meeting.[92]The claimant and Ms Green continued to exchange emails but on 22 September the claimant said he did not need any further support. Resignation[93]On 27 September, the claimant submitted his resignation (page 1491 and 1492). He said he was resigning due to discrimination and bullying. He said his last day would be 31 December 2023. He gave a little over three months’ notice. That was more than the four weeks’ notice required by his contract.[94]Ms Green replied to the claimant later that day (page 1500). She invited him to attend a meeting with her to discuss his concerns. She offered him the opportunity to reconsider his resignation and explore the option of trying to resolve his concerns. She asked him to confirm by 2 October whether he intended to retract his resignation.[95]The claimant replied to Ms Green about the offer of a meeting. He said he wanted to be accompanied by a colleague who was on annual leave. He preferred the meeting to take place after his colleague’s return on 6 November, rather than have the meeting sooner. He did not reply to Ms Green’s offer to retract his resignation. Further discussions about the claimant’s desk arrangements[96]On 6 October 2023, after his resignation, the claimant contacted Ms Bryan again about his seating arrangements. On that day he was unable to sit at his preferred desk (SB2 page 30). 14 of 47[97]As this was becoming a repeated issue, Ms Bryan sought advice from the respondent’s HR and property team about getting the claimant’s desk ‘blocked out’ on the Condeco system. The claimant also had an exchange of emails with the respondent’s property manager during which the claimant said that whoever was not actioning his request for block booking was ‘inept’ (SB2 page 11).[98]From 17 October 2023 the claimant’s preferred desk was reserved for him on Condeco. On 28 October 2023 Mr Evans put a paper sign on the desk which said it was reserved for the claimant.[99]The property manager made a complaint to Ms Bryan about the claimant’s use of the word ‘inept’ in his email. Ms Bryan held an informal investigation meeting with the claimant about this on 19 October 2023 (page 1530). In the meeting Ms Bryan reiterated to the claimant that the block booking of his desk had been done with effect from 17 October 2023. Further discussions about the grievance about bullying[100]On 22 October 2023, after the investigation meeting, the claimant emailed Ms Green to say that he felt the bullying had got worse. She responded by email and they spoke by phone over the next few days.[101]The claimant raised some health matters with Ms Green and they agreed that he would be referred to occupational health again. They worked together on the occupational health referral form (page 1517). On 26 October 2023 Ms Green gave the claimant paid leave while waiting for the occupational health report.[102]Ms Green continued to be in regular contact with the claimant in the early part of November 2023. However, as she was due to be on annual leave from 23 to 28 November, she arranged for a colleague, Ailsa Honeyman, to facilitate the meeting with the claimant. That meeting took place on 27 November 2023. Attempted retraction of resignation[103]The claimant returned to work from sickness absence on 28 November 2023. On 29 November 2023 the respondent carried out a stress risk assessment for the claimant (page 1685). The document was updated with notes of actions being taken.[104]On 4 December 2023, the claimant wrote to the respondent submitting a retraction of his resignation. He said this was because he had not been able to find alternative work and was facing homelessness (page 1693). The respondent refused to accept the retraction of the claimant’s resignation. Ms Green spoke to the claimant on 5 December 2023 and emailed him to say that she did not think it would be in the best interest of either the claimant or the respondent to accept the retraction of his resignation (page 1694). The claimant’s last day of employment was 31 December 2023.[105]The claimant presented his claim form in claim 2 on 10 December 2023.[106]The respondent issued the outcome of the claimant’s grievance on 1 February 15 of 47 2024. Ms Honeyman did not find evidence of bullying, and the claimant’s grievance was not upheld. The claimant’s health conditions[107]I make the following findings of fact about the claimant’s depression and asthma. These facts are based on the claimant’s evidence, his GP notes and the occupational health reports.[108]The claimant has had asthma since being a baby. It is well managed with his inhaler. In July 2022 he had an increase in asthma symptoms and was given another inhaler to use daily; using the new inhaler his symptoms settled (page 1005). He had another chest infection in December 2022 (FP page 007). An occupational health report advised that disregarding medication, his asthma would have a further impact on his function (page 1007). In April 2023 the occupational health report advised that when he has a cold, the claimant’s respiratory symptoms might deteriorate as he tends to develop a chest infection; he uses an inhaler for symptom management (page 1321). The claimant’s GP said that patients with asthma can get unpredictable flares which can be debilitating. She said that the claimant has colds which have turned to chest infections, exacerbating his asthma, adding that the claimant’s asthma is not a disability ‘as it is well controlled’ (page 99). In August 2023 the claimant had cold symptoms which required a course of antibiotics (FP page 125).[109]The claimant has a long-standing history of depression over many years. His symptoms have fluctuated since his teens. Depression exacerbates the claimant’s difficulties with communicating with and understanding people (FP pages 175 and 176). He uses CBT techniques which temporarily improve his condition, but he still experiences effects of depression, particularly when under stress (FP page 170). He has been prescribed anti-depressants, for example in 2020 (FP page 075), 2021 (FP page 086) and December 2022 (FP page 082). During an episode of depression in 2021 he was not getting out of bed on some days (FP page 086). When he stopped taking his anti-depressant medication on 18 July 2023, he experienced a significant deterioration of his mental health (FP page 077 to 078).[110]The occupational health reports advised in relation to the claimant’s depression: 110.1. The condition was long term and the claimant experienced recurring episodes (page 388); 110.2. He had an increase in symptoms in mid-2021 and was started on antidepressant medication in May 2021 (page 619); 110.3. In June 2021 there was an impact on his mood and he found his energy could dip as the day progressed, affecting concentration, meaning it took longer to complete tasks, his appetite was low, and he could get anxious (page 619); 110.4. In about May 2022 he had an increase in psychological symptoms, and he started on antidepressant medication again in July 2022 (page 1005); 16 of 47 110.5. In July 2022 mood, fluctuating concentration, and anxiety were all impacting how the claimant was functioning each day and disregarding medication, his depression would have a further impact on his function (page 1007); 110.6. He was taking medication to manage his mood in April 2023 as he was experiencing low mood and fluctuating motivation (page 1321).
The law
[111]Disability is a protected characteristic under section 6 of the Equality Act 2010. The burden of proof is on the claimant to establish that he has a disability within the meaning of the Equality Act 2010.[112]The definition of disability is contained in section 6 of the Equality Act: “(1) A person (P) has a disability if:(a) P has a physical or mental impairment; and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”[113]Substantial means more than minor or trivial (section 212).[114]Schedule 1 to the Equality Act sets out additional detail concerning the definition of disability. In relation to long-term effects, paragraph 2 of schedule 1 provides: “(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the effect is likely to recur.”[115]When considering whether an effect is long-term, the question is whether there has been a substantial adverse effect as at the date the alleged discriminatory acts occurred or if not, whether as at that date, there was a substantial adverse effect which was likely to last 12 months (Tesco Stores Ltd v Tennant [2020] IRLR 363 EAT).[116]Paragraph 5 of schedule 1 deals with the effect of medical treatment. It says: “(1) An impairment is to be treated as having a substantial effect on the ability of the person concerned to carry out normal day-to-day activities if 17 of 47 –(a) measures are being taken to correct it, and(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.” Direct discrimination[117]Section 13(1) of the Equality Act says: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Discrimination arising from disability[118]Section 15(1) of the Equality Act 2010 provides that a person(a) (A) discriminates against a disabled person(b) (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.”[119]Section 15(2) says that: “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.”[120]In Pnaiser v NHS England 2016 IRLR 170, the EAT summarised the approach to be taken under section 15: 120.1. The tribunal must identify whether there was unfavourable treatment and by whom. 120.2. It must determine the cause of or reason for the treatment, focusing on the conscious or unconscious thought processes of the alleged discriminator. Motive is not relevant to this. 120.3. There may be more than one reason or cause for the treatment and, as in a direct discrimination case, the ‘something’ need not be the main or sole reason for the treatment but it must have at least a significant (more than trivial) influence so as to amount to an effective reason for or cause of it. 120.4. The tribunal must determine whether the reason or cause (or a reason or cause) is something arising in consequence of the claimant’s disability. That is an objective question and does not depend on the thought processes of the alleged discriminator. The expression ‘arising in consequence of’ could describe a range of causal links, for example it could include more than one link. 18 of 47 120.5. If an effective reason or cause for unfavourable treatment is ‘something arising in consequence of’ the claimant’s disability, the tribunal will consider whether the respondent can show that the treatment is a proportionate means of achieving a legitimate aim. Indirect discrimination[121]Section 19 of the Equality Act 2010 says:(1) “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.” Failure to make reasonable adjustments[122]The Equality Act imposes a duty on employers to make reasonable adjustments. The duty comprises three requirements, in this case, the first requirement is relevant. This is set out in sub-section 20(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.”[123]Paragraph 20 of schedule 8 of the Equality Act says that an employer, A, is not subject to a duty to make reasonable adjustments: “if A does not know, and could not reasonably be expected to know – … (b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.” 19 of 47[124]The EHRC Code of Practice describes the duty to make reasonable adjustments as: 'a cornerstone of the Act which requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which non-disabled workers and applicants are not entitled'. Harassment[125]Under section 26 of the Equality Act, a person(a) (A) harasses another(b) (B) if “a) A engages in unwanted conduct related to a relevant protected characteristic, and b) the conduct has the purpose or effect of – i) violating B’s dignity, or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[126]Conduct amounts to harassment if it has the required purpose or, in the alternative, the required effect. In a claim based on the effect of conduct, the tribunal must take into account: “a) the perception of B; b) the other circumstances of the case; c) whether it is reasonable for the conduct to have that effect.”[127]There are therefore both objective and subjective elements to the test about effect. The tribunal is required to consider whether, if the claimant experienced those effects, it was reasonable for them to do so. Victimisation[128]The word victimisation is used in a technical sense in the Equality Act 2010. It can include subjecting someone to detrimental treatment because they have made a complaint of unlawful discrimination under the Equality Act, or because they have done something else in connection with the Equality Act.[129]Section 27 of the Equality Act says: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – a) B does a protected act… 20 of 47 (2) Each of the following is a protected act - a) bringing proceedings under this Act … c) doing any … thing for the purposes of or in connection with this Act; d) making an allegation (whether or not express) that A or another person has contravened this Act.” 130. ‘Detriment’ is given a wide interpretation. It means putting under disadvantage, or doing something that a reasonable worker would consider to be to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). Burden of proof in complaints under the Equality Act[131]Sections 136(2) and (3) provide for a shifting burden of proof: "(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) This does not apply if A shows that A did not contravene the provision."[132]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.[133]If the burden shifts to the respondent, the respondent must provide an adequate explanation, which proves on the balance of probabilities that the respondent did not discriminate. The respondent would normally be expected to produce cogent evidence to discharge the burden of proof.[134]If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then the tribunal must make a finding of discrimination. Jurisdiction – time limits[135]Section 123 of the Equality Act says: “(1) Subject to section 140B [extension for ACAS early conciliation] proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. … 21 of 47 (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” Constructive unfair dismissal[136]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed where: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[137]Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 sets out the elements of a constructive dismissal. The tribunal must consider whether: 137.1. there was a fundamental breach of contract on the part of the employer; 137.2. the employer’s breach caused the employee to resign; and 137.3. the employee resigned without affirming the contract, for example by delaying too long before resigning or by other conduct.[138]The act of giving notice (rather than resigning without notice) does not itself constitute affirmation of the contract, because section 95(1)(c) includes termination with or without notice. However, offering additional performance by giving notice longer than that required by the contract might be consistent with affirmation, depending on the facts and the circumstances. In Cockram v Air Products plc 2014 ICR 1065, an employee who gave seven months' notice of termination of his contract of employment instead of the three months' notice he was contractually bound to give, was taken as having affirmed the contract so as to preclude a claim for constructive unfair dismissal.[139]The claimant relies on breaches of the implied term of trust and confidence. This term was explained by the House of Lords in Malik v Bank of Credit and Commerce International SA 1997 ICR 606, HL as a term to the effect that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. The test of whether 22 of 47 the conduct is such that it undermines trust and confidence is objective: Omilaju v Waltham Forest London Borough Council [2005] ICR 481.[140]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 Underhill LJ set out guidance on the questions to be considered where an employee claims to have been constructively dismissed and where there are said to be a number of breaches of the implied term. Those questions are: 140.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation? 140.2. Has the employee affirmed the contract since that act? 140.3. If not, was that act (or omission) by itself a repudiatory breach of contract? 140.4. If not, was it nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? 140.5. If so, did the employee resign in response (or partly in response) to that breach?[141]If a constructive dismissal is established, the tribunal must also consider the reason for dismissal, including whether the reason for the dismissal is a potentially fair reason, and whether the dismissal is fair in all the circumstances, pursuant to section 98(4) of the Employment Rights Act 1996.
Conclusions
[142]The complaints of disability discrimination are contained in claim 1 only. The respondent has accepted that the claimant had a disability at the time of the events claim 1 is about, by virtue of Autism Spectrum Disorder, ADHD, and dyslexia.[143]In relation to asthma: 143.1. The claimant has had asthma, a physical impairment within the meaning of section 6, since being a baby. 143.2. The claimant had a daily inhaler and with the use of the inhaler his asthma was generally well controlled. He had to use a new type of inhaler to control increased symptoms from July 2022. 143.3. The question of whether the claimant’s asthma was ‘well controlled’ is not, as the claimant’s GP suggests, conclusive of whether he has a disability for this purpose. The effect of asthma on the claimant’s dayto-day activities must be considered without the beneficial effects of treatment (paragraph 5(1) of schedule 1 of the Equality Act). I accept that without the inhaler the effects of the claimant’s asthma would have been more severe. 143.4. However, the claimant did not advance any evidence as how his day to day activities were affected by asthma, or would have been affected without his inhaler. Without that evidence, I cannot make an 23 of 47 assessment as to which activities were or would have been affected, and to what extent. This means that I cannot conclude that there was a substantial adverse effect on the claimant’s day to day activities, or that there would have been had the claimant not had the beneficial effects of the inhaler. I accept, as the claimant’s GP says, that in general asthma can be debilitating. However, there was no evidence on which I could make specific findings as to what those debilitating effects might be in the claimant’s case.[144]I have concluded that I do not have sufficient evidence on which to reach a conclusion that the claimant’s asthma amounted to a disability under the Equality Act. In any event, I would have reached the same conclusions in respect of the claimant’s complaints of disability discrimination if had found that the claimant’s asthma was a disability within the meaning of section 6 of the Equality Act.[145]As to the claimant’s depression: 145.1. The claimant had a history of depression over some years, amounting to a mental impairment within the meaning of section 6. 145.2. During an episode of depression in 2021, the claimant was unable to get out of bed on some days. His concentration fluctuated. Symptoms arising from depression exacerbated his difficulties communicating and understanding people. During an episode of depression therefore, the claimant’s abilities to have a conversation and interact with colleagues as part of normal social or work activities were likely to have been adversely affected. 145.3. The claimant was prescribed anti-depressant medication at various times in the period he was working for the respondent, and practised CBT techniques. The effect on his day-to-day activities must be considered without the beneficial effects of treatment (paragraph 5(1) of schedule 1 of the Equality Act). An example of the effects seen without the benefits of the treatment was when the claimant stopped taking his anti-depressant medication on 18 July 2023 and his symptoms deteriorated rapidly. 145.4. Without the treatment, the adverse effects on the claimant’s day to day activities would have been likely to have been more than trivial, and therefore substantial. 145.5. The effects of the claimant’s depression varied from time to time. Based on the long-standing nature of the claimant’s depressive condition, and the medical advice of the respondent’s occupational health advisors, I conclude that adverse effects arising from the claimant’s depression were likely to recur, in the sense that a recurrence could well happen.[146]Therefore, applying the elements of section 6, the claimant’s depression amounted to a mental impairment which had a substantial adverse effect on his day-to-day activities (those involving communicating and understanding) and without treatment those effects were likely to recur. This means that the effects should be treated as continuing under paragraph 2(2) of schedule 1 of the 24 of 47 Equality Act, and therefore as long-term. I have concluded that the claimant’s depression amounted to a disability under the Equality Act at the relevant times (during the period covering the events in claim 1). Direct disability discrimination[147]I have found that both matters relied on by the claimant in his complaint of direct disability discrimination happened as alleged: 147.1. Mr Evans issued the claimant with a first written warning for absence on 24 May 2022; and 147.2. Ms Bryan rejected the claimant’s flexible working request in writing on 3 March 2023.[148]I have not found evidence from which I could conclude that any of the claimant’s disabilities played a part in either of these decisions. Both Mr Evans and Ms Bryan were sympathetic to the claimant’s requirements. There is nothing to suggest that their decisions were because of the claimant’s disabilities or that anyone else would have been treated more favourably. This means that the burden of proof does not shift to the respondent in respect of these two complaints.[149]If I had found that the burden shifted to the respondent, I would have been satisfied that neither of the decisions was because of disability: 149.1. The reason why Mr Evans’ decision was taken was because the claimant’s sickness absences had exceeded the triggers in the sickness absence policy, even after some flexibility was allowed. The warning related to five absences in 2022; the claimant’s absence met the triggers after each of those occasions of sickness. The claimant relies on the fact that the warning was based in part on absences which may have been disability related. This is not the same as the warning being based on a disability itself. In particular, it was not direct disability discrimination for Mr Evans to take the claimant’s covid absence into account, I return to this again below in the complaint of discrimination arising from disability. 149.2. The reason why Ms Bryan’s decision was taken was because she received advice from the planning team that the claimant’s requested changes could not be accommodated in full. I accept that this was the reason for the request only being approved in part. It is consistent with the fact that a few weeks later the respondent brought in a firebreak period because of workload and staffing issues. The claimant’s disabilities did not play any part in Ms Bryan’s decision.[150]For these reasons, the complaints of direct disability discrimination fail. Discrimination arising from disability[151]The claimant also says that the warning issued in May 2022 was unfavourable treatment because of ‘something’ arising from disability, in other words that it was discrimination arising from disability. In determining this complaint, I have 25 of 47 followed the approach suggested in Pnaiser, although I have considered the points in a slightly different order.[152]Unfavourable treatment: The respondent accepts that the issuing of a warning by Mr Evans was unfavourable treatment. 153. ‘Something’ arising: Whether the ‘something’ relied on arose in consequence of disability is an objective question, for me to decide. The claimant relies on: 153.1. his sickness absences for stress and burnout; and 153.2. the claimant’s sickness absence for covid.[154]The claimant’s sickness absences for stress and burnout occurred in 2021. It is very likely that these absences arose because of symptoms which themselves arose in consequence of the claimant’s psychological disabilities. That is consistent with the occupational health reports obtained by the respondent which recommended stress risk assessments to support the claimant, and breaks to help when he was experiencing burnout or an increase in his symptoms. Therefore, absences for stress and burnout were something arising in consequence of disability.[155]There is a causal chain linking the claimant’s sickness absence for covid with his disabilities of ASD, ADHD, and dyslexia. The claimant was well enough to work from home but (in part, that is in the morning) he was unable to do so because he kept his laptop at work. He did that as a CBT coping strategy to help him manage his psychological symptoms. Those symptoms were caused by his disabilities. Therefore part of the sickness absence during the period when the claimant did not have his laptop at home was something arising in consequence of disability. The absences in the afternoons arose for another reason, namely practical restrictions which prevented the claimant from being able to work from home.[156]There is therefore unfavourable treatment (the warning) and two ‘things’ arising in consequence of disability (the stress/burnout absences and the covid absence). 157. ‘Because of’: I have to consider whether the unreasonable treatment was because of one (or both) of those things. This question requires me to focus on the conscious or unconscious thought processes of the alleged discriminator. I do not need to identify the sole or main cause of the treatment. It is enough for this element of the complaint to succeed if something arising from disability had a significant (more than trivial) influence on the treatment, or is an effective reason for or an effective cause of the treatment.[158]Mr Evans made the decision to issue the claimant with a warning in May 2022. The claimant’s absences for stress/burnout in 2021 were not an effective reason for or cause of his decision to issue a warning. As is clear from the warning letter, Mr Evans looked only at the absences in 2022, not the 2021 absences for stress/burnout. (Ms Lomax’s decision on appeal is not alleged by the claimant to have been unfavourable treatment as part of this complaint, but if it had been relied on, I would also have concluded that her decision was not 26 of 47 because of stress/burnout, because she expressly excluded those 2021 absences from consideration.) Therefore, the unfavourable treatment was not because of the claimant’s absences for stress/burnout.[159]The claimant’s covid sickness absence however was a cause of the warning. It was one of the absences which Mr Evans took into account when deciding to issue the warning. (Ms Lomax also took it into account when deciding the appeal.) The covid absence was a significant influence on or effective cause of Mr Evans’ decision. Therefore, issuing a warning in May 2022 did amount to unfavourable treatment because of something which arose in consequence of disability, namely the morning periods of covid absence.[160]Proportionate means of achieving a legitimate aim: I have concluded that there was unfavourable treatment because of something arising on consequence of disability. There is no rule that sickness absence which is in any way disabilityrelated must always be excluded. I have to consider whether the respondent’s decision to issue a warning in respect of absence which included some disability-related absence was a proportionate means of achieving a legitimate aim, pursuant to section 15(1)(b).[161]The respondent’s aim was to strike a balance between supporting the claimant with his disability, and supporting the operational demands of the respondent. This was a legitimate aim.[162]Issuing the claimant with an absence warning in May 2022 where one of the absences which counted towards the warning was something which was arising in consequence of disability was a proportionate means of achieving that aim because: 162.1. The respondent was following its sickness absence policy; 162.2. The claimant had been issued attendance letters (letters of concern) in December 2020 and December 2021; 162.3. Mr Evans had allowed the claimant some flexibility beyond the standard triggers before setting a capability meeting to consider a warning in May 2022; 162.4. The respondent had obtained occupational health advice for the claimant and by September 2021 had put recommended adjustments into place; 162.5. Mr Evans did not take into account stress/burnout absences which were directly disability-related; 162.6. The number of sickness absences the claimant had was still substantially higher than the standard triggers; 162.7. The covid absence was in part because of something which was not related to the claimant’s disability (working from home arrangements); 162.8. Even if the claimant’s covid absence had been disregarded in full, the claimant’s absences would still have exceeded the triggers. He would have had 5 occasions totalling 20 days in the 12-month period before the claimant’s most recent sickness absence at the time of the meeting on 24 May 2022.[163]The complaint of discrimination arising from disability fails for these reasons. 27 of 47 Indirect discrimination[164]The claimant says that the respondent indirectly discriminated by applying two provisions, criteria or practices (‘PCPs’): 164.1. PCP1 - the respondent used a set of metrics to assess the ability of staff to carry out the role of Member Service Advisor. 164.2. PCP2 - the respondent denied holiday requests to all Member Service Advisors in early 2023.[165]PCP1[166]The respondent accepts that it used a set of metrics to assess the ability of staff to carry out the role of member service advisor. Those metrics were applied to the claimant and to non-disabled employees.[167]The claimant said (as recorded in the list of issues) that the metrics put him and people with the same disability/disabilities as him at a particular disadvantage because he (and people with the same disability as him) cannot understand facial expressions and misses verbal cues and so was marked negatively. During the course of the hearing, the claimant accepted that, as the member service advisor role deals with customers by telephone (audio only), ability to understand facial expressions is not relevant here. The focus in this complaint of indirect discrimination is on the disadvantage arising from missing verbal cues, and therefore being marked negatively.[168]I have not found that the claimant was marked negatively because of missing verbal cues in customer interactions or that he was at any disadvantage because of missing verbal cues. In general, the claimant performed well in his role. He was at the highest pay level and his quality assessment levels were good. No performance issues were raised with him. The metrics did not disadvantage the claimant. As I have concluded that there was no particular disadvantage to the claimant, this complaint of indirect discrimination fails.[169]In any event, there was no evidence before me about how the metrics affected others with the claimant’s disability (group disadvantage).[170]Further, if I had concluded that the claimant and those with the same disability as him were disadvantaged by the metrics because of missing verbal cues, I would also have concluded that the metrics were a proportionate means of achieving a legitimate aim, namely ensuring members were provided with good customer service to ensure the operation of the respondent, its reputation and success. The respondent took a proportionate approach because it adjusted the metrics for the claimant, reducing the performance targets and allowing the claimant increased breaks. This ensured an appropriate balance between the claimant’s needs and the needs of the organisation. It would not have been proportionate to require adjustment of the respondent’s quality assurance metric.[171]Therefore this complaint of indirect discrimination fails. 28 of 47[172]PCP2[173]The second PCP relied on by the claimant in the complaint of indirect discrimination is the denial of holiday requests to all member service advisors in early 2023. I have found that the respondent had a firebreak period in April 2023 during which new or short notice annual leave requests were not normally permitted. This firebreak policy applied to the claimant and to people who did not have the claimant’s disability.[174]The claimant said that the firebreak period put him and people who have the same disability as him at a particular disadvantage because of the need to take holiday for medical appointments or to take time off to alleviate the pressure that built up from his disabilities.[175]I have not found that the claimant had to take holiday for disability-related medical appointments. There was no evidence about that. The claimant withdrew his complaints about medical appointments.[176]I have found that sometimes the claimant asked for annual leave during the day when he was experiencing an increase in psychological symptoms that he described as feeling burnout or having a meltdown. The claimant’s short notice requests for annual leave were sometimes granted. They were refused on three occasions in April, because of the firebreak policy. I have not found that the claimant requested annual leave on all three occasions because of the pressure that built up from his disabilities. On one occasion it was because he had had bad news. On another it was because he wanted to catch the bus during a period of heavy rain.[177]On 12 April 2023 the claimant asked for short notice annual leave because he felt he was having a meltdown. I found that the claimant was not permitted to take annual leave on that occasion. However, I found that the claimant was allowed to take time off sick. Therefore, the claimant was not disadvantaged because he was allowed to take time off when he felt he was having a meltdown, even during a period when short notice leave was not normally allowed. Sick leave was not affected by the firebreak period. This claim of indirect discrimination fails for this reason.[178]But in any event, as with PCP 1, there was no evidence before me about how the firebreak policy would have affected others with the claimant’s disability (group disadvantage).[179]Further, if I had concluded that the claimant and those with the same disability as him were disadvantaged by the firebreak period, I would also have concluded that, on an objective basis, the firebreak policy was a proportionate means of achieving a legitimate aim. The aim relied on by the respondent was drastically reducing call delays to ensure members were getting the service they paid for and were able to contact their insurance provider. This was a legitimate aim. The restriction on short notice holiday was one of the means used to achieve this. The respondent took a proportionate approach by offering the claimant an appropriate alternative, namely sick leave if he was feeling unwell, and by offering support. This ensured an appropriate balance between 29 of 47 the claimant’s needs and the needs of the organisation.[180]Both complaints of indirect discrimination fail for these reasons. Failure to make reasonable adjustments[181]I have found, based on the information provided in the occupational health report of 8 July 2022, that the respondent knew or should have known from 8 July 2022 that the claimant was disabled by dyslexia, ADHD, autism and[182]The claimant relies on five PCPs in this complaint. These are set out in paragraph 25 of the list of issues. I have considered each in turn, answering the questions in paragraphs 26 to 30 of the list of issues.[183]PCP(a)[184]PCP(a) is the set of metrics used to assess performance. The respondent accepts that it applied a set of metrics as alleged. In the complaint of failure to make reasonable adjustments, the focus is on the metrics in their unadjusted form at the PCP stage. I conclude, based on the occupational health reports, that the additional time the claimant required for processing because of his disability was likely to impact his performance against the metrics. For this reason, the metrics put the claimant at a substantial disadvantage compared with someone without the claimant’s disability.[185]The respondent was aware from the occupational health reports that the claimant was likely to be placed at that disadvantage.[186]From 8 July 2022, the respondent knew or should have known that the claimant was disabled. From that date, the respondent was under a duty to make adjustments to avoid (or reduce) the disadvantage to the claimant arising from the performance metrics. The claimant says that the respondent should have amended the metrics. I have found that the respondent did so. It adjusted his customer calls per hour, his average call time target and his customer facing time. It did so in line with the occupational health recommendations.[187]The only target which the respondent did not adjust for the claimant was the quality assurance target. It did not consider it to be reasonable to expect lower quality service to be provided to its customers. I accept that this would not have been reasonable. However, the claimant was able to meet the unadjusted quality assurance targets in any event.[188]This complaint fails because the respondent made the adjustments which the claimant has suggested and these avoided the disadvantage to him. He was able to meet the adjusted performance targets. No performance concerns were raised.[189]PCP(b)[190]The respondent had a standard set break practice where most employees were 30 of 47 allowed a 30 minute break during a shift. That standard practice is a PCP which the respondent applied. I conclude, based on the occupational health reports, that because of his disability, the claimant required additional breaks to improve concentration. The standard break practice put the claimant at a substantial disadvantage compared with someone without the claimant’s disability.[191]The respondent was aware from the occupational health reports that the claimant was likely to be placed at this disadvantage.[192]Therefore from 8 July 2022 the respondent was under a duty to make adjustments to avoid or reduce the disadvantage to the claimant arising from the standard break practice. The claimant says that the respondent should have allowed him to take additional breaks. I have found that the respondent made the adjustment suggested by the claimant. He was allowed to take additional breaks including a two minute break after each call, an additional 10- 15 minute break each hour, and a 5-10 minute break when he experienced increased psychological symptoms.[193]It would not have been reasonable for the respondent to have to provide unlimited breaks by allowing the claimant to finish early if he needed time off to alleviate pressure building up from his disabilities. This would have gone well beyond the occupational health recommendation for a 5-10 minute break when the claimant was experiencing an increase in symptoms. The respondent allowed the claimant to take holiday in these circumstances or (during the firebreak period) to take sick leave as an alternative. The respondent also offered appropriate support. It was reasonable to request that these absences be taken as holiday or sick leave rather than as breaks, so that the respondent could record and monitor the absences.[194]This complaint fails because the respondent made the adjustments which it was reasonable to make to meet its duty to make adjustments in respect of breaks. It would not have been reasonable to require the respondent to have gone further than it did in relation to leaving work early.[195]PCP(c)[196]The respondent accepts that it had a PCP of requiring employees to work their contracted hours. This PCP put the claimant at a substantial disadvantage compared with people without his disability, because he required a regular work routine and his symptoms were worse when working a shift pattern which interfered with his sleep pattern and did not allow time for an exercise routine.[197]The respondent was aware of the claimant’s need for a regular work routine from its occupational health report in July 2022. It became aware from another occupational health report in April 2023 of the recommendation for a shift pattern which did not interfere with his sleep pattern and which allowed time for an exercise routine[198]From April 2023 the respondent was under a duty to make adjustments to avoid or reduce the disadvantage to the claimant arising from the requirement to work the respondent’s standard shift pattern. The claimant’s suggested adjustment is 31 of 47 that the respondent should have allowed his flexible working request. I conclude that the steps the respondent took to agree the claimant’s flexible working request were objectively reasonable in the circumstances: 198.1. At the first stage, the request was allowed in part, in line with the respondent’s planning needs, by removal of the Saturday shift. That change meant the claimant’s shift was the same each week and his shift pattern reflected the then current occupational health advice that a regular work routine was required. At this stage, the respondent was not aware that the Wednesday late shifts disadvantaged the claimant. 198.2. Between the first stage response to the claimant’s flexible working request and the appeal, the respondent obtained an occupational health report which specifically addressed the question of the claimant’s flexible working requirements. 198.3. In reliance on that report, the respondent reached a different view at the appeal stage, and allowed the claimant’s request in full (including the removal of the late shift on a Wednesday).[199]There was a two week delay in allowing the flexible working request at the appeal stage. This was not a delay on the part of the respondent. It was because the claimant asked for another manager to consider his appeal. It was reasonable for the respondent to delay the appeal hearing in response to the claimant’s request. It would not have been reasonable for the respondent to have implemented the new pattern before holding the appeal meeting.[200]This complaint fails because the respondent made reasonable adjustments for the claimant in respect of contracted hours.[201]PCP(d)[202]PCP(d) is a practice of requiring staff to work without additional support and supervision. I have not found that the respondent had this practice. The respondent provided the claimant with additional support and supervision: 202.1. regular referrals were made to occupational health to understand what support the claimant needed, and occupational health recommendations were implemented; 202.2. stress risk assessments were carried out, stress triggers were identified, and actions to assist were implemented; 202.3. the claimant had regular one-to-ones, coaching and feedback sessions from November 2021; 202.4. the claimant was coached by his line manager after quality assurance checks; 202.5. the claimant had extra coaching, for example on showing empathy, call ending and the steroid injection policy.[203]This complaint fails because the respondent did not have the practice (the PCP) on which this complaint is based.[204]PCP(e) 32 of 47[205]The respondent accepts that it had a PCP of applying its attendance management policy. The claimant was put at a substantial disadvantage by the respondent’s attendance management policy because he was at risk of increased sickness absence in comparison to his peers, due to his ongoing[206]The respondent was aware that the claimant was put at this disadvantage, because it was expressly referred to in the occupational health reports.[207]From 8 July 2022 the respondent was under a duty to make adjustments to avoid or reduce the disadvantage to the claimant arising from its attendance management policy. The claimant suggests that the respondent should have taken account of his disability-related absences when applying the attendance policy. I understand the claimant to be saying that the respondent should have taken into account the fact that the absences were disability-related, or should have discounted disability related absence.[208]I have found that from July 2022, the respondent made adjustments to its attendance management policy for the claimant: 208.1. In July 2022, when considering the claimant’s appeal against a written warning under the attendance management policy, Ms Lomax discounted disability related absence when considering whether a warning should be issued. She upheld the warning because the claimant had 6 occasions of non-disability related sickness totalling 23.5 days in 12 months; 208.2. Ms Bryan adjusted the standard absence triggers in the claimant’s case so that he was permitted more occasions/days of absence without action being taken under the attendance management policy.[209]Both approaches were reasonable ways to adjust the attendance management policy for the claimant.[210]This complaint fails because the respondent made reasonable adjustments for the claimant in respect of its attendance management policy.[211]PCP(f)[212]The claimant withdrew his complaint that there was a failure to make adjustments in respect of time off for medical appointments. There was no evidence that the respondent had refused any time off for the claimant to attend a disability-related medical appointment.[213]The complaints of failure to make reasonable adjustments fail for these reasons. Harassment related to disability[214]The complaint of harassment relates to the time when the claimant was asked by Mr Hall to move seats. I have found that this took place on 23 March 2023. 33 of 47[215]The conduct was unwanted: the claimant had a seat that he sat in regularly and he would have preferred not to have been asked to move.[216]The conduct was not related in any way to the claimant’s disability. Mr Hall asked the claimant to move because the claimant was speaking quite loudly during two calls he was making in the open plan office, and Mr Hall was concerned that other staff were being disturbed and that customers on calls could hear the claimant.[217]Although the request to move had particular implications for the claimant because of his preference for a fixed seat, Mr Hall was unaware of this, and his conduct was unrelated to the claimant’s seating preferences or his disability. The claimant said that Mr Hall should have checked with Mr Evans before asking him to move. I have found that Mr Hall took this step.[218]The complaint of harassment fails because the conduct complained of was not related to disability.[219]If I had found that the conduct was related to disability, I would have found that it did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Further, I would have found that was not reasonable for it to have had that effect. The claimant agreed that he was speaking quite loudly. Mr Hall’s interactions with the claimant were brief and polite, and he explained to the claimant why he was asking him to move. The claimant was able to return to his preferred seat the next day. In those circumstances it would not be reasonable for the conduct to have the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation[220]The claimant says that he was subjected to detrimental treatment because of doing a protected act. The protected act relied on is the claimant’s grievance of 24 March 2023.[221]In his grievance report form the claimant referred to the absence warning he had been given in 2022 and used the term ‘discrimination’. Although there were no details of the allegation included in the form, the claimant had referred to discrimination under the Equality Act in the context of mental health in his appeal against the warning. Ms Lomax was the manager who considered that appeal and she was also the manager who was sent the claimant’s March grievance form. I have decided that, given the background that Ms Lomax was aware of from the appeal, it was understandable from the grievance form that the claimant was making an allegation of disability discrimination under the Equality Act.[222]Therefore, the claimant’s grievance of 24 March 2023 was an allegation that there had been a contravention of the Equality Act, and it was a protected act under section 27(2)(d).[223]The detrimental treatment relied on by the claimant is a) the failure to hold a 34 of 47 grievance meeting and b) the 14 day delay in implementing the claimant’s requested shift pattern. The basis of the complaint is that the failure and delay happened because of the claimant’s March 2023 grievance.[224]I have not found evidence from which I could conclude that the claimant’s allegation of discrimination in his grievance was the reason for either the failure to hold a meeting or the delay in implementing the shift pattern. Therefore, the burden of proof does not shift to the respondent in respect of the complaint of victimisation.[225]If I had found that the burden shifted, I would have been satisfied that the reason for these aspects of the respondent’s treatment of the claimant was not his protected act, for the following reasons.[226]Grievance meeting: Ms Lomax did not hold a grievance meeting because: 226.1. She first thought that the issues raised by the claimant were the same as those which she had considered in the sickness absence warning appeal. She felt that there was no need to consider this issue under the grievance procedure, because there had already been a final decision in the appeal under the attendance management policy. 226.2. When the claimant said that Ms Lomax had not asked him to clarify his discrimination complaint, Ms Lomax asked him to provide details of the discrimination he was alleging. That step was permitted by the respondent’s policy. However, the claimant did not provide details of his grievance, as required by the policy. If he had done, Ms Lomax would have held a meeting with him. Ms Lomax’s decision not to hold a meeting was because the claimant did not provide details of his complaint or request a meeting.[227]The respondent would have taken the same approach to any grievance in these circumstances whether or not the grievance included an allegation of discrimination such that it was a protected act. This complaint of victimisation fails because the failure to hold a grievance meeting was not because the claimant had made a complaint of discrimination. 228. 14 day delay: The 14 day delay in implementing the claimant’s requested shift pattern in May/June 2023 was because the claimant did not want to go ahead with Ms Lomax as the appeal manager for his flexible working appeal. Identifying another manager to hear the appeal and re-scheduling the meeting were the reasons for the 14 day delay. After the appeal, the claimant’s requested shift pattern was implemented. The 14 day delay was not because the claimant had made a complaint of discrimination.[229]Both complaints of victimisation fail for these reasons. Constructive unfair dismissal[230]The claimant resigned with notice on 27 September 2023. His resignation took effect on 31 December 2023. The claimant says that his resignation was a constructive dismissal. The following elements are required to establish a 35 of 47 constructive dismissal: 230.1. the respondent fundamentally breached the claimant’s contract of employment; 230.2. the claimant resigned in response to the breach(es); 230.3. the claimant resigned without affirming the contract by delay or by other conduct.[231]The claimant says the respondent’s treatment of him breached the implied term of trust and confidence. That requires me to decide whether the treatment relied on by the claimant, viewed objectively, was conduct which, without reasonable and proper cause, was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[232]As identified at the start of this hearing, the claimant relies on the following as treatment which breached the implied term: 232.1. the things alleged in claim 1; and 232.2. during the period from 20 April 2023 to 31 December 2023 the claimant’s managers Peter Evans, Michelle Bryan, Beverley Lomax and Rebecca Green failed to implement the claimant’s reasonable adjustment in respect of seating arrangements.[233]The factual matters which form the basis of the claim 1 allegations are: 233.1. In May 2022, Mr Evans issued an absence warning, taking into account an absence for covid; 233.2. On 3 March 2023 Ms Bryan denied the claimant's flexible working request; 233.3. On 24 March 2023 Mr Hall asked the claimant to move seats; 233.4. On 28/29 March 2023 Ms Lomax failed to hold a grievance meeting; 233.5. In April 2023, the respondent denied holiday requests during the firebreak period; 233.6. In May/June 2023 there was a 14 day delay in allowing the claimant’s requested shift pattern as a result of the appeal manager changing; 233.7. the respondent’s use of a set of metrics to assess the ability of staff to carry out the role of member service advisor; 233.8. the practice of allowing employees to take standard set breaks; 233.9. the requirement that employees work their contracted hours; 233.10. the practice of requiring staff to work without additional support and supervision; 233.11. the application of the attendance management policy.[234]I have found that the issue about seating arrangements arose in May 2023 and August 2023. I have found that there were further discussions about seating arrangements from 6 October 2023 but, as these took place after the claimant’s resignation on 27 September 2023, the October issues cannot have been a factor which triggered the claimant’s resignation.[235]Following the guidance in the case of Kaur (summarised in the law section 36 of 47 above), I start with the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation. This was the issue around seating arrangements which arose in August 2023.[236]I have decided that the claimant affirmed his contract after that issue arose. He did so by giving substantially more notice than was required by his contract: he gave three months’ notice of resignation when his contract required four weeks. By providing further services beyond his contractual notice period, the claimant affirmed the contract.[237]If I had decided that the claimant had not affirmed his contract, I would have decided that the respondent’s conduct in relation to seating arrangements was not, by itself, a repudiatory breach of contract. The occupational health reports had not recommended a fixed seat for the claimant. When the claimant raised it with his managers, they told him that he could book his preferred seat himself using the Condeco system. Implementing block booking of the seat at an earlier stage might have been administratively helpful, but the failure to do so was not conduct which, viewed objectively, was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[238]I would also have decided that the respondent’s conduct in relation to seating arrangements was not part of a course of conduct which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence. Irrespective of my decision that they did not amount to disability discrimination, none of the factual matters relied on by the claimant in the first claim (as I have found them to have occurred) breached the implied term of trust and confidence, either individually or cumulatively.[239]The respondent had a reasonable and proper cause for the following: 239.1. issuing an absence warning in May 2022, the cause being the claimant’s absences exceeded the trigger in the respondent’s policy; 239.2. denial of the claimant's flexible working request on 3 March 2023, the cause being the advice from the planning team; 239.3. the request on 24 March 2023 for the claimant to move seats, the cause being that he was speaking quite loudly near colleagues; 239.4. the decision not to hold a grievance meeting 28/29 March 2023, the cause being that the claimant had not provided details of his grievance; 239.5. the denial of holiday requests in April 2023, the cause being the firebreak policy; 239.6. the 14 day delay in allowing the claimant’s requested shift pattern in May/June 2023, the cause being the claimant’s request for his appeal to be considered by another manager.[240]In the circumstances, this treatment was not viewed objectively, calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.[241]In addition, the respondent had reasonable and proper cause for the policies 37 of 47 and practices which the claimant complains of. Further, these policies and practices were not, viewed objectively, calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. The respondent made adjustments to its metrics, the break policy, the contracted hours and the attendance management policy, to avoid or reduce disadvantage to the claimant. Viewed objectively, the changes the respondent made for the claimant to its policies and practices increased or preserved trust and confidence, rather than destroying or damaging it.[242]I have not found that the respondent had a practice of requiring staff to work without additional support and supervision. I have found that the respondent provided the claimant with appropriate support and supervision. Again, the respondent’s conduct in this respect was in line with, not in breach of, the trust and confidence term.[243]As I have concluded that the claimant affirmed his contract after the last act he complains of, and that the respondent did not breach the implied term of trust and confidence, the claimant’s resignation on 27 September 2023 did not amount to a constructive dismissal. The complaint of constructive unfair dismissal fails for that reason.[244]For completeness, I would not have concluded that the refusal to allow the claimant to retract his resignation amounted to a dismissal, constructive or otherwise. Ms Green gave the claimant an opportunity to withdraw his resignation by 2 October 2023. That was to allow the claimant and the respondent to explore the option of trying to resolve the claimant’s concerns. When he sought to retract his resignation on 4 December 2023, he did so much later than Ms Green had asked, and for different reasons. The claimant’s claim in the round[245]When there are a number of different complaints as there are in this claim, there is a risk of failing to see the claim in the round, or failing to see the ‘big picture’. Looking at the big picture may shed light on individual complaints. Having reached conclusions on the individual complaints, I have stepped back and considered the full picture of the claimant’s complaints, to avoid an overly fragmented approach.[246]It is clear that the claimant worked hard in his role and was a valued employee of the respondent. There were no questions about his performance. His sickness absence was in excess of the respondent’s triggers, and it was appropriate for the claimant’s managers to consider the absence under their attendance management procedures. The respondent made appropriate referrals to occupational health for advice, and acted on the advice they received from occupational health. The claimant’s managers adjusted the sickness procedures for the claimant. They also adjusted other policies and practices to assist the claimant, including performance metrics, standard breaks and working patterns. The respondent’s senior managers tried hard to resolve the claimant’s complaints when he raised them with them and acted reasonably in offering the claimant a chance to reconsider his resignation. 38 of 47[247]It is possible, as the claimant said at the hearing, that he was more comfortable with being line managed by someone who worked in the same building as him than being line managed remotely. However, he did not ask the respondent to implement that sort of change, either at the time or in his claim. Overall, the respondent’s managers did their best to respond to the claimant’s requirements and concerns, while balancing operational needs. The treatment the claimant complains of did not amount to disability discrimination, or a breach of the implied term of trust and confidence leading to a constructive dismissal.[248]For these reasons the claimant’s claim fails and is dismissed. Approved by: