Mr C Durueke v Royal Mail Group Ltd: 3311619/2022 and 3302551/2023

EMPLOYMENT TRIBUNALS

Case No 3311619/2022, 3302551/2023

Between

Mr C DuruekeClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Alliott

Members

Mrs J Costley

Mr B Lynch

Mr E Eluwa (instructed by solicitor) for claimant

Date 20 December 2024

JUDGMENT

[1]The claimant’s claims of unfair dismissal, direct race discrimination, disability discrimination, indirect race discrimination, harassment and unauthorised deduction of wages are dismissed.

[2]The claimant was dismissed in breach of contract in respect of notice pay and the respondent is ordered to pay him the sum of £ 4,793.60 (subject to tax and National Insurance).

REASONS

Introduction (from the case summary of Employment Judge Lloyd-Lawrie)

[1]The claimant was employed by the respondent, originally as a Post Person and latterly, either as a Deputy Manager or acting up as a Deputy Manager (disputed by the parties). The claimant was employed from 22 July 2005 until 12 November 2022. Early conciliation for the first claim started on 20 May 2022 and ended on 30 June 2022. The claim form was presented on 14 September 2022. As regards the second claim, early conciliation began on 29 November 2022 and ended on 10 January 2023. The claim was presented on 13 March 2023.

[2]The claim is about race discrimination/disability discrimination regarding the decision to (it is claimed) demote the claimant. It is then about discrimination arising from disability regarding the act of dismissal, unfair dismissal and notice and the difference in wages. The respondent’s defence is the claimant was never deputy manager, he was only ever acting up and it was right and proper to stop that acting up based on information from other staff. They say that he was dismissed due to ill-health (capability) long absence. (Although at this hearing the respondent refined the reason for dismissal to some other substantial reason, namely: “• The business has no reasonable prospect of knowing when you will be fit to return to work in your capacity as an OPG.• The business is not satisfied that you intend to return to your employment with Royal Mail Group in the foreseeable future as an OPG.”)

The issues

[3]The issues the Tribunal will decide are set out below. “1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before [ ] may not have been brought in time.

1.2 Were the discrimination complaints] made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Unfair dismissal

2.1 Was the claimant dismissed?

2.2 If the claimant was dismissed,] what was the reason or principal reason for dismissal capability, namely sickness absence and continuation of that.

2.3 Was it a potentially fair reason?

2.4 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?

2.5 What was the reason or principal reason for dismissal? The respondent says the reason was some other substantial reason : page 524, capability (long term absence).

2.6 If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.6.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;

2.6.2 The respondent adequately consulted the claimant;

2.6.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;

2.6.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;

2.6.5 Dismissal was within the range of reasonable responses. 3. Remedy for unfair dismissal

3.1 Does the claimant wish to be reinstated to their previous employment?

3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?

3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.6.3 If not, for what period of loss should the claimant be compensated?

3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.6.5 If so, should the claimant’s compensation be reduced? By how much?

3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.6.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?

3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.6.11 Does the statutory cap of fifty-two weeks’ pay or [£86,444] apply?

3.7 What basic award is payable to the claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[4]Wrongful dismissal / Notice pay4.1 What was the claimant’s notice period?

4.2 Was the claimant paid for that notice period?

4.3 If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice?

[5]Disability 5.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:5.1.1 Did s/he have a physical or mental impairment: [ ]?

5.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?

5.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

5.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

5.1.5 Were the effects of the impairment long-term? The Tribunal will decide:5.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

5.1.5.2 if not, were they likely to recur?

[6]Direct race discrimination (Equality Act 2010 section 13)6.1 The claimant identifies as black African.

6.2 Did the respondent do the following things:6.2.1 Invite the Claimant to an unscheduled disciplinary meeting on 4th June 2021 and demoting him on the basis of unsubstantiated allegations of managers and on basis that no manager wanted to work with him;

6.2.2 Respondent embarked on getting statements from those managers and using those statements against the Claimant;

6.2.3 Following the Claimant’s grievance of 16th June 2021, he was invited to a meeting 19th August 2021 and the case file was not opened until November 2021;

6.2.4 On 14th August 2022, the Respondent wrote to the Claimant making allegations of poor conduct against him and stating why he was removed from the Deputy Manager role;

6.2.5 In breach of their policy, the Respondent in 2018 did not appoint the Claimant to a Delivery Office Manager even though he passed the assessment/interview.

6.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The claimant says he was treated worse than Agnieszka Pozdzakm Dilip Sharma and Jay Kantharjan.

6.4 If so, was it because of race?

6.5 Did the respondent’s treatment amount to a detriment?

[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the respondent treat the claimant unfavourably by: 7.1.1 Dismissing him for his absence.

7.2 Did the following things arise in consequence of the claimant’s disability: 7.2.1 Sickness absence from 7th June 2021.

7.3 Did the respondent dismiss the claimant because of that sickness absence?

7.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 7.4.1 Managing the workforce due to the continued absence of the Claimant with no return date in sight.

7.5 The Tribunal will decide in particular:7.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

7.5.2 could something less discriminatory have been done instead;

7.5.3 how should the needs of the claimant and the respondent be balanced?

7.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[8]Indirect discrimination (Equality Act 2010 section 19)8.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 8.1.1 Respondent’s act of inviting the Claimant’s colleague to write feedback on the Claimant and using that as a means of evaluation?

8.2 Did the respondent apply the PCP to the claimant?

8.3 Did the respondent apply the PCP to persons with whom the claimant does not share the characteristic, e.g. people of a different race or would it have done so?

8.4 Did the PCP put people of the Claimant’s race at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, eg of other races?

8.5 Did the PCP put the claimant at that disadvantage?

8.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 8.6.1 The Respondent disputes that there was a PCP, in the alternative, the Respondent states it was an adequate means of evaluating staff.

8.7 The Tribunal will decide in particular:8.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

8.7.2 could something less discriminatory have been done instead;

8.7.3 how should the needs of the claimant and the respondent be balanced?

[9]Harassment related to race (Equality Act 2010 section 26)9.1 Did the respondent do the following things: 9.1.1 The Claimant claims that all of the allegations of misconduct, eg sleeping at work, being late, incompetent and lazy are acts of harassment. The Claimant claims says this started from at least 4th June 2021 and continued.

9.2 If so, was that unwanted conduct?

9.3 Did it relate to race?

9.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

9.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[10]Remedy for discrimination or victimisation10.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

10.2 What financial losses has the discrimination caused the claimant?

10.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

10.4 If not, for what period of loss should the claimant be compensated?

10.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

10.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

10.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

10.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

10.9 Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]?

10.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

10.11 By what proportion, up to 25%?

10.12 Should interest be awarded? How much?

[11]Unauthorised deductions11.1 Were the wages paid to the claimant on 7th June onwards less than the wages he should have been paid?

11.2 Was any deduction required or authorised by statute?

11.3 Was any deduction required or authorised by a written term of the contract?

11.4 Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?

11.5 Did the claimant agree in writing to the deduction before it was made?

11.6 How much is the claimant owed?

[12]Remedy12.1 How much should the claimant be awarded?

12.2 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

12.3 Did the respondent or the claimant unreasonably fail to comply with it?

12.4 Is it just and equitable to increase or decrease any award payable to the claimant?

12.5 By what proportion, up to 25%?” The law Unfair dismissal 4. We have taken into account section 98(1)(2) and (4) of the Employment Rights Act 1996. 5. Any decision to dismiss must fall within the range of reasonable responses of a reasonable employer in order to be fair. It is not for the tribunal to substitute its view for the views of the employer. Equality Act 2010 claims 6. We have taken into account sections 13,15,19,23 and 26 of the Equality Act 2010 which are not set out here. 7. In addition, section 136 Equality Act 2010 provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person has contravened a provision then the tribunal must hold that the contravention occurred unless the employer shows that it did not contravene the provision. The evidence 8. We had a bundle running to 592 pages and were provided with the guidance document for the Reward Policy separately. 9. We had witness statements and heard evidence from:-

9.1 The claimant.

9.2 Mr Graeme Richardson, Delivery Office Manager at Kilburn and St John’s Wood TO at the relevant times.

9.3 Ms Julie Forde, Independent Case Manager at Greenford Mail Centre, who heard the claimant’s appeal against dismissal. Disability 10. The claimant relies on the mental impairments of stress, anxiety, depression, low mood and insomnia. 11. It is the claimant’s case that following demotion on 4 June 2021 he became ill with stress and insomnia which he asserts soon developed into anxiety and depression. He states that his mixed anxiety and depression became chronic and progressive. 12. We have examined the medical evidence, such as it is, that has been placed before us. The only GP records that have been disclosed relate to prescriptions for Promethazine Hydrochloride. It would appear that he was first prescribed Promethazine Hydrochloride on 24 June 2021 and repeat prescriptions run through to November 2022. We have not been provided with the GP records of consultations, which we would have expected to have been provided with in order to inform us why that medication had been prescribed. The prescription record states that it is to be taken at night to aid sleep and consequently we have approached the issue on the basis that the medication was to assist with insomnia.

The evidence

[13]We have a series of Med 3 fit notes covering the claimant’s absence from 11 June 2021 until dismissal in November 2022. These all merely state “Stress at work” which could be anything.

[14]We have been provided with a letter from Xyla Digital Therapies dated 19 March 2022 which indicates that the claimant undertook an assessment on that date and was recommended for counselling with Xyla Digital Therapies.

[15]We have a discharge report from Xyla Digital Therapies dated 17 July 2022 which states:- “Mr Collins Durueke has received Integrative Counselling over 8 weekly sessions. Mr Collins Durueke began his counselling and had his final session on 14 July 2022. His presenting primary complaint was a depressive episode (F32.0) which is a depressed mood, loss of interest, and enjoyment which he reported was triggered by issues at his place of employment. Mr Collins Durueke engaged well in the therapeutic process and was affected psychologically and emotionally by the circumstances which unfolded at his place of employment. I have provided emotional support of Integrative Counselling to Mr Collins Durueke where he engaged well with a therapeutic process.”

[16]In a separate letter dated 20 July 2022 reference is made to the claimant completing CBT treatment with an improvement in his questionnaire scores and the claimant was discharged back to the care of his GP.

[17]The claimant was seen by Occupational Health on 31 March and 14 June 2022. The report of 31 March 2022 was inconclusive and we have not been given the report from 14 June 2022.

[18]The claimant was seen again and we have an Occupational Health report dated 2 December 2022. This states:- “In my opinion, disregarding the effect of treatment, Mr Collins Durueke would be considered as disabled under the Equality Act. The conditions this relates to are stress, anxiety and depression. The reason I say this is that his symptoms have now been long lasting for over a year and are significantly impacting his day to day activities and health.”

[19]In his “impact statement” the claimant refers to low moods, low libido, irritability and reduced concentration. He refers to being forgetful, experiencing sleeping difficulties, sweating, memory problems and loss of appetite. He asserts that his health issues have affected his ability to prepare meals, do shopping, drive and carry out simple household effects.

[20]In our judgment, the medical evidence that has been placed before us is poor. In our judgment, the mental impairments relied upon were probably progressive and deteriorated over time. Although we do not have the source of the claimant’s referral for CBT therapy, he clearly was referred in March 2022. The discharge document references a depressive episode. In our judgment, the claimant’s mental impairment of depression had deteriorated sufficiently by March 2022 such that he was referred for CBT therapy. We are prepared to accept that by that time the claimant’s ability to undertake normal day to day activities was substantially impaired by reason of his depressive episode.

[21]However, due to the absence of medical evidence prior to March 2022, we find that the claimant was not disabled prior to that date.

[22]We have noted that the CBT appears to have been successful in that the claimant was discharged to his GP on 17 July 2022. Once again we have no further medical evidence as to how the claimant was after that date. He continued to receive his medication for insomnia. At the time the claimant’s disability had not lasted 12 months. We have considered whether it was likely that his disability would last for 12 months or could well last 12 months. In our judgment, we cannot conclude that it was likely to last 12 months. There had been a positive response to CBT and the expectation must have been that the claimant was on the road to recovery.

[23]Consequently, we find that the claimant was not disabled at all relevant times.

The facts

[24]The claimant was employed on 22 July 2005 as an Operational Postal Grade. His contract of employment indicates that his notice period matched the statutory minimum and for 12 years or more service he was entitled to 12 weeks’ notice.

[25]As might be expected, the respondent has a number of employment policies. There is a Conduct Policy which has as one of its guiding principles:- “• No conduct action will be taken against an employee until the case has been fully investigated.”

[26]The reward Policy provides as follows:- “Working in a higher grade (substitution). Where an employee of a higher grade is absent from work for any reason, cover will be found, often in the form of an employee “stepping up” to the higher grade on a temporary basis (substitution). Being a substitute can be a positive opportunity for learning and skill development. … Implications for pay The employee who is substituting in the employee’s higher grade may be paid at the rate equivalent to the higher grade that they are temporarily undertaking. … Longer term If the period of substitution is expected to last longer than 13 weeks, this should be treated as a temporary promotion and normal resourcing arrangements should apply. Additionally, if the job being covered is vacant, then temporary promotion is generally appropriate in any event. Any substitutions will need to be reviewed by the manager to determine whether the job needs to be covered and must be authorised by the manager with the appropriate documentation returned.”

[27]The respondent had a “Supporting Performance Improvement Policy”. Curiously this states:- “Who does this policy apply to? This policy applies to all Unite represented managerial grades across Royal Mail Group Plc. This policy does not apply to CWU represented grades, agency staff, contractors or self-employed workers.”

[28]During the course of this hearing Ms Julie Forde suggested that that policy did not apply to the claimant when he was acting up as a Deputy Manager. We disagree. We find that in circumstances where an employee is temporarily promoted to managerial grade, then that policy would apply to them. In any event, we would expect the respondent to have a Supporting Performance Improvement Policy for non-managerial grades of a broadly similar nature.

[29]The Supporting performance Improvement Policy has a number of stages starting with an informal approach which can be escalated via a letter explaining to the employee that their performance was causing a concern, a record of any interventions and a review of progress. It would only be then that consideration would be made to moving onto a more formal process involving timescales and reviews.

[30]It is the claimant’s case that in 2016 he was appointed as a permanent Deputy Manager. It is the respondent’s case that the claimant was only ever appointed as acting up in the role of Deputy manager.

[31]The claimant has produced an email dated 4 October 2016 which states as follows:- “Dear Collins, On behalf of Royal Mail Group I am pleased to offer you the role of 48693- Deputy manager London West x 5. Please see the attached for further details of this offer and the next steps.”

[32]Despite the issue of whether the claimant was appointed to a permanent managerial position or was simply acting up being the central issue in this case, the advert for the job that the claimant applied for was only provided to us on the second day of the hearing following our request. The job advertisement is as follows:- “Job title: Deputy Manager London West x 5 Job Reference Number 48693 Are you an OPG looking to progress your operational career within Royal mail? Then why not consider applying to attend a Deputy Manager course? The role of a Deputy Manager is to ensure that operational service levels are maintained during short periods of regular line manager absence. … For the periods you cover as a deputy Manager, your pay will be supplemented with substitution payments. If you are currently a part-time employee you will not be offered a full-time OPG role, however, when covering a full-time managerial role you will be paid full-time on overtime. As such, the completion of the Deputy Manager course does not result in a full-time, permanent Deputy Manager role.”

[33]The claimant suggested that the last section of the advert referring to the course not resulting in a full-time permanent Deputy Manager role only referred to part-time workers. We disagree. We find that the advert made plain that successful completion of the Deputy Manager course did not result in a full-time permanent Deputy Manager role. We find that this was clearly an acting up position. We find that the claimant was appointed as an acting up Deputy Manager.

[34]We find that the claimant probably knew that he was acting up as a Deputy Manager. He told us that he was familiar with others acting up. The claimant’s wage slips had his basic payment as an OPG along with a further payment referenced as a substitution payment. That payment could vary according to how much substitution work he had done. As recited below, the claimant continued to apply for permanent manager positions which would be unlikely if he was already a permanent manager. The point was made that the claimant was paid weekly as an OPG whereas permanent managers were salaried and paid monthly. We also note that in the grievance meeting on 19 August 2021 the claimant complained that his substitutions had not been paid whilst he was off sick.

[35]It is clear to us that the claimant was keen to progress his career and he continued to apply for permanent manager roles. On 12 November 2018 he was sent an email as follows:- “Dear Collins Thank you for attending the assessment for 96385 - Delivery Office Manager – East Dulwich. I am sorry to inform you that on this occasion your application has not been successful. However, I am pleased to inform you that you successfully passed the assessment/interview.”

[36]On 12 August 2019 the claimant was sent an email as follows:- “Dear Collins Thank you for attending the assessment for 106757 - Cover Manager – Cricklewood. I am sorry to inform you that on this occasion your application has not been successful. However I am pleased to inform you that you successfully passed the assessment/interview.”

[37]And also on 12 August 2019 the claimant was sent an email as follows:- “Dear Collins Thank you for attending the assessment for 106954 – Annual Leave Cover Manager – North West London. I am sorry to inform you that on this occasion your application has not been successful. However, I am pleased to inform you that you successfully passed the assessment/interview.”

[38]Alleged treatment 6.2.5 is that: “In breach of their policy, the respondent in 2018 did not appoint the claimant to a Delivery Office Manager even though he passed the assessment/interview.”

[39]We find that not offering the claimant the role in 2018 did not constitute a breach of the respondent’s policy. Although we had no direct evidence on this issue, we find that in all probability the claimant was competing with others and, even though he passed the assessment/interview, was not selected on sound managerial grounds. Consequently, we find this treatment not proved.

[40]It appears to us that a practice had grown up at the respondent to use working in a higher grade (substitution) as long term appointments. The policy reads as if it is a stop gap measure to cover temporary absence of management and/or vacancies. However, by June 2021 the claimant had been acting up as a deputy manager for four years and ten months. We readily understand how it is that the claimant had probably come to regard himself as a permanently appointed deputy manager due to that length of time. However, we find that as a matter of contractual law the claimant was acting up and his status had not changed from a substantive OPG.

[41]In March 2022 a new Operations Manager, Mr Dave Jackson, joined the West London area. In his witness statement Graeme Richardson states:- “As part of this we reviewed management resourcing, inclusive of trainees/acting managers. This was undertaken across the area and did not only apply to the claimant. I estimate that there may have been around 5 [Deputy Managers] in this geographical area in a similar position to the claimant, and a review process was applied to each of them.”

[42]Those five Deputy Managers included Ms Agnieszki Posdzakm, Mr Dilip Sharma and Mr Jay Kantharjan. These three are relied upon by the claimant as comparators.

[43]We find that, as so often in business, a new operations manager came into the West London area and conducted a comprehensive review of the workforce.

[44]On 20 May 2021, David Jackson sent an email to a number of deputy managers which included the claimant and the three comparators as follows:- “Subject: Performance conversations – goal setting for field operations. All Every year managers have to achieve certain goals, these are normally generic. This year every manager is asked to submit 1 to 3 personal goals. I need you all to do the same, these will be personal to you however these will have to support the operation. Take time over the weekend to think about these and please submit your goals back to me by Wednesday.”

[45]One of the issues with the claimant is that he did not comply with that request.

[46]On 1 June 2021 Graeme Richardson sent an email to a number of managers as follows:- “Adrian/Denise/Anthony, As we finish P2 and near the end of Q1, I’m planning a 1:1 with Collins to review his performance. I would therefore be very grateful if you could provide me with any relevant you may have on his performance whilst covering in your units so far this financial year.”

[47]During his oral evidence Graeme Richardson was asked if he sent a similar email to that to the managers asking for feedback on all the other deputy managers. Graeme Richardson said that he did, either the same email or something similar. It was noted that we did not have those emails in the bundle. Graeme Richardson said that the feedback was generally of a more positive nature as regards the other deputy managers. He stated that he met with two of them but, because the feedback was more positive, neither of them were put back into uniform at postal grade. We accept that evidence.

[48]Graeme Richardson’s evidence was that over the previous few months issues had arisen with the claimant’s performance and that there had been informal feedback meetings between the two of them.

[49]On 3 June 2021, two of the managers canvassed for feedback sent emails to Graeme Richardson. Mr Anthony Williams sent an email which contained the following:- “I don’t believe that Mr Durueke is suitable for his role in the ever evolving and challenging times we face in our unit. His timekeeping is my main issue and being 20 to 30 min late a day leaves me in a regrettable situation whereupon I feel this needs to be addressed. It is a historic issue but for example the week I was in the chair covering for Graeme, Mr Durueke was late Monday and Tuesday by 20 to 30 min and also needed to leave early at 09.30am for an appointment on Tuesday that I was only informed of mid-day on Monday. … I should also not be put in a position where a member of the Management Team is more interested in his phone than what is happening in the unit or finding Mr Dureke in his car when he should be in the office. Not to mention his lack of visibility on the floor when he is here leaves me searching for him most days and having to assign jobs to fill his time, as he choses not to be proactive in his work ethic and creates additional workloads for his colleagues. He also has a fractures relationship with the staff from both NW6 and NW8 who constantly find him difficult to work with. His approach to staff is not one of unity and is divisive and creates flashpoints on a regular basis.”

[50]Ms Denise Batchelor responded as follows:- “My observations of Collins are that when you speak to him to ask if he understands what you want & how to do something he says yes but the reality of achieving the task is not always to the standard I would hope. I have offered him feedback previously but it is not always welcomed. He would benefit from staying off his phone a little more. … Last week we asked him to use the laminator to put up some posters I had printed, he was unable to use it saying it was broken but I managed to do the work after he left. I asked him to display some posters which said do not leave yorks & trays in the garage which I did expect to be in the garage but they were not placed in there. Irene also found him asleep. He has completed some customer complaints here but I have not seen any of the evidence of the conversations.”

[51]On 4 June 2021, David Jackson emailed Graeme Richardson as follows:- “Further to our conversation yesterday I wrote to all the trainee managers on 20 may asking them to complete their personal goals. Collins failed to complete this exercise that every manager had to complete. I have read the feedback from both Denise and Tony and agree with what you said this is unacceptable. My only real concern is anyone actually had a conversation with him to explain this? I do agree the best course of action is sit down with him to try and understand the why he is not doing what he is asked and why is he always late and if there is not a satisfactory explanation then we should not use him as a trainee manager for now, he should go back to his normal contractually role until such times when he has really reflected on his own personal behaviours and is ready to perform at a higher standard.”

[52]On 4 June 2021, Graeme Richardson replied at 08.19:- “I note your concern and it is a legitimate one. However, I have challenged Collins on his late attendance previously and in February 2021 I gave him the attached counselling note which he refused to sign. We also spoke for about an hour that day on how his poor personal behaviours would always bring a cloud over his professional achievements. Again he disagreed. The meeting ended when I excused Collins to reflect on his own behaviours, professional achievements and how he wanted to move the process forward by demonstrating that he could change his behaviours and improve his timekeeping.”

[53]On 4 June 2021, the claimant attended work as usual. In his witness statement he states: “Suddenly without prior notice, Graeme Richardson summoned the claimant to a disciplinary meeting. The claimant did not know the purpose or agenda for the meeting.” “At the meeting, Graeme Richardson first asked the claimant the nationality of his spouse. The claimant innocently responded that his spouse is a Nigerian/British.”

[54]In his witness statement Graeme Richardson puts it as follows:- “As such, upon discussion with Dave Jackson, we agreed that the most prudent course of action was for the claimant to no longer undertake the step-up manager role. He had been covering as a manager for a while, and wasn’t meeting expectations based on my own observations and knowledge, as well as the peer feedback. I had a meeting with the claimant on 4 June 2021 to discuss this with him, This wasn’t disciplinary action, as seems to have been suggested and therefore wasn’t dealt with under this policy.”

[55]At the meeting on 4 June 2021 the claimant was told that he was reverting to an OPG Grade. This was clearly based on the claimant’s conduct. However, it was not dealt with as a disciplinary matter under the disciplinary policy. Whilst some issues, such as falling asleep whilst at work, might have been conduct issues, in our judgment the majority of the matters raised would fall under the heading of capability. However, the claimant was not dealt with under the capability policy. Dave Jackson and Graeme Richardson simply decided to remove the claimant from the Deputy Manager role and revert him back to the OPG role.

[56]We have considerable sympathy for the claimant. We find that being summarily moved from a Deputy Manager role back to an OPG after nearly five years with the attendant loss of salary (about £7,000 p.a.) and status without any formal warning was unfair. In our judgment, fair and reasonable management of the claimant would have alerted him formally to the alleged problems with his conduct and would have given him an opportunity to improve. However, without more, the claimant unfortunately has no redress.

[57]The claimant’s evidence that Graeme Richardson asked the claimant about the nationality of his spouse appears to us to be the claimant attempting to introduce a racial aspect to the meeting on 4 June 2021. The allegation first emerged in the claimant’s grievance appeal meeting on 16 February 2022 and is recorded in the notes as “GR asked me where my wife is from”.

[58]Graeme Richardson was asked about this and we find that the claimant’s evidence omits the context. In his interview on 24 February 2022 Graeme Richardson puts it as follows:- “TS: In his appeal hearing, CD believes that on 4th June prior to asking him to revert to an OPG you asked him where his wife is from, is this correct? GR: Yes but it has been grossly taken out of context. Prior to the meeting bn 4 June 2921, I was aware that CD may need some extra flexibility in his working hours during w/c 7th June 2021, when he was scheduled to cover my DCM Anthony Williams from Tuesday. We discussed this, with CD explaining that his wife had to travel home to nurse her ill mother, leaving him with the childcare responsibilities of three children; two under 8 years old and one with complex care needs. We had a small and simple discussion about where his wife was from, in the context of trying to understand the level of distance involved and support CD would require.”

[59]Graeme Richardson confirmed this in his oral evidence and we accept his evidence. Obviously the fact that the claimant’s wife had to travel to Nigeria would materially affect the extent that the claimant may have needed support. We find that there was nothing sinister about the question and in no way did it taint the actions of Graeme Richardson with a racially discriminatory motive.

[60]We find that the respondent did embark on getting statements from managers and using those statements against the claimant in that they were relied upon in support of the decision to move the claimant from Deputy Manager to OPG. As such, we find treatment 6.2.2. is proved.

[61]We find that the claimant was invited to an unscheduled meeting on 4 June and that he was demoted on the basis of allegations from managers and on the basis that there was a reluctance of managers wanting to work with him. We find that this was not a formal disciplinary meeting although it had significant consequences based on conduct. We find that the allegations were unsubstantiated in the sense that there had not been a full investigation and the claimant had not had an opportunity to respond to them in detail. To that extent, we find the treatment alleged in 6.2.1 has been proved.

[62]We have considered whether that treatment (6.2.1 and 6.2.2) was less favourable treatment. We find that the comparators relied upon were in materially different circumstances. The feedback from managers concerning the other Deputy Managers had been positive and not as negative as the feedback relating to the claimant. We find that a hypothetical comparator, namely a non-black African Deputy Manager who had had negative feedback, would have been treated in exactly the same way. Consequently, we find that the claimant was not less favourably treated on the grounds of his race.

[63]We find that the allegations of misconduct, eg sleeping at work, being late, incompetent and lazy was unwanted conduct as far as the claimant was concerned.

[64]We find that it did not relate to race. We find that it was feedback from colleagues who had been asked by their line manager to provide that feedback on the claimant’s performance. Accordingly, the harassment claim is dismissed.

[65]We find that the respondent did have the PCP of inviting the claimant’s colleagues to write feedback on him and using that as a means of evaluation.

[66]We find that the respondent did apply that PCP to the claimant.

[67]We find that the respondent did apply that PCP to persons with whom the claimant did not share the characteristic, namely people of a different race.

[68]We find that that PCP did not put people of the claimant’s race at a particular disadvantage when compared with persons with whom the claimant did not share the characteristic. We find that managers were invited to provide feedback on all the deputy managers in the region. The feedback was based on their performance and not their race. Accordingly, the indirect discrimination claim is dismissed.

[69]On 16 June 2021, the claimant lodged a grievance. He was invited to a meeting on 19 August 2021 and the grievance meeting took place on 19 August 2021. It was conducted by Mr Zaheer Sheraz. The interview notes were sent to the claimant on 31 August 2021. The claimant amended the notes and signed them on 7 September 2021. The claimant returned the notes on 12 September 2021.

[70]As part of his investigation Zaheer Sheraz interviewed five individuals. Graeme Richardson was interviewed on 26 October 2021. Mr Bruce Rowe was interviewed on 8 November 2021. Mr Adrian Lingam was interviewed on 19 November 2021. Mr Piotr Sageda was interviewed on 3 December 2021. Mr David Clarke was interviewed on 16 December 2021. The claimant was sent the grievance report on 20 December 2021.

[71]We find that the claimant did lodge a grievance on 16 June 2021, that he was invited to a meeting on 19 August 2021 and that he was only informed of the outcome on 22 December 2021. To that extent the treatment alleged in 6.2.3 is proved.

[72]In its closing submissions the respondent stated:- “The respondent accepts that there were delays to the first grievance. And they accept this was less favourable treatment but deny that it was because of race. At no point during the appeal or during the dismissal appeal did the claimant refer to the delay being deliberate or due to his race. Mr Sheraz was based at Hayes Delivery Office. He had never worked with the claimant before and acknowledged that there had been delays and confirmed they were due to the nature of his role as operations manager. The grievance was complex and required six interviews.”

[73]The respondent has accepted that there were delays in the processing of the claimant’s grievance and that it took longer than the standard 28 days. We are not sure why the respondent has conceded that this was less favourable treatment. We have considered whether a hypothetical comparator would have been treated any differently. In our judgment there was nothing malicious, untoward or discriminatory in the delays. In our judgment, a hypothetical comparator would have been treated exactly the same. It may well be that the respondent’s concession is no more than the treatment was unfavourable. In any event, there is nothing that we have seen and heard that suggests that the delay was because of the claimant’s race. We accept the respondent’s explanation for the delay, namely that it was a somewhat complex case, a number of individuals needed to be interviewed and that Mr Sheraz had to fit it in around his duties as an operations manager. In any event, we find that the respondent has provided an explanation for the treatment which does not involve discriminatory conduct.

[74]By February 2022 the claimant had been absent for about 261 days due to stress at work issues. He was referred to Occupational Health and the report dated 31 March 2022 is inconclusive in that it references that more time is required for assessment. There was a further reference to OH as we have a document referring to a report following a consultation on 14 June 2022 but we have not been shown this report.

[75]On 6 July 2022 the claimant had a meeting with Mr Jack Slaughter, Case Manager. This states:- “JS – This meeting has been requested as you have refused to accept an OH appointment where you are classified an OPG and not a Deputy Manager to which you are currently disputing.”

[76]And later:- “JS - This is your final opportunity to provide consent for an OH referral as an OPG otherwise I will consider this as non-cooperation from your part and as warned in my previous letter I will stop your RM entitlement to sick pay meaning you will only receive SSP. Do you consent. CD - Jack, I have told you repeatedly and no point have I refused an OH referral I have accepted it and will continue to accept it any time. The job role should be what I am on not what you want. … JS - I understand you are willing to participate in an Occupational Health referral as a Deputy Manager at any time. However, you are not willing to participate in an Occupational Health referral as an OPG. This is your final opportunity to consent otherwise I will consider this as non-cooperation on your part.”

[77]The claimant and Jack Slaughter had a further meeting on 31 August 2922, The notes of the meeting record the following:- “JS – During your time away, did you reflect on the previous conversations we have had with regards to you returning to work at OPG grade? Is this something you would now be willing to consider given that it is not possible for you to return in a managerial capacity? CD – Jack, this is the main trigger of my main trauma. Do you want to kill me or keep me alive? I have told you I cannot come back. JS – Are you going to answer the question? CD – No because we both know the answer. JS – After the 3 weeks of uninterrupted self-reflection will you now consent to an OH referral as an OPG?”

[78]The claimant went on to reference an employment tribunal but at that stage, whilst he had contacted Acas, he had yet to issue his first claim.

[79]In a letter dated 14 August 2022 (which should probably have been dated 14 September 2022) sent by Jack Slaughter to the claimant the following is set out:- “You were removed from the deputy manager role due to poor timekeeping (repeatedly attending work late), regular unwarranted confrontations with staff, creating unnecessary flashpoints in the unit, refusal to take accountability for your actions and sleeping during working hours.”

[80]Accordingly, we find the treatment alleged at 6.2.4 is proved.

[81]We have gone on to consider whether that was less favourable treatment. We have considered a hypothetical comparator in not materially different circumstances. In our judgment, such a hypothetical comparator would have been treated exactly the same. The respondent was trying to manage the claimant’s absence and, in order to inform itself about the claimant’s return to work as an OPG, was requesting him to attend Occupational Health assessment. The claimant’s position was that he would only attend such an assessment on the basis that it was to return to the role of Deputy Manager. Jack Slaughter was merely reiterating the reasons the claimant had been removed from Deputy Manager and any comparator would have been treated the same.

[82]The latter dated 14 August (September) 2022 goes on to state:- “The present position is becoming untenable, and in the circumstances we are no longer confident that you will return to work in the foreseeable future. We are therefore giving consideration to your continued employment on the basis that: 1. The business has no reasonable prosect of knowing when you will be fit to return to work in your capacity as an OPG: 2. The business is not satisfied that you intend to return to your employment with Royal Mail Group in the foreseeable future as an OPG. Accordingly, we now invite you to attend for an interview on Friday 16th September by Microsoft Teams at 14.00 during which consideration will be given to your dismissal.”

[83]The meeting scheduled for 16 September was rescheduled for 26 September 2022 as the claimant had flu.

[84]We have not been provided with any notes of the meeting on 26 September 2022.

[85]We have a dismissal letter which is undated but which the claimant and the trial bundle index both date as 17 October 2022. The letter is from Jack Slaughter to the claimant. It states:- “Following your interview with me on 26 September 2022 to discuss your continued employment with Royal Mail, I have now made a decision regarding this matter. My decision is that you will be dismissed from employment with Royal Mail. You will be dismissed with notice. You will receive 4 weeks’ notice and your last day of service with Royal Mail Group will be the 12th November 2022. I have come to this conclusion as for the duration of your sick absence you have not consented to a referral to Occupational Health as an OPG. I have given you five opportunities to consent to an OH referral in the last three months as an OPG, each time you have refused.”

[86]It is clear to us and we find that something of a stand-off had developed between the claimant and the respondent. The claimant was adamant that he had a substantive role as a Deputy Manager and would only consent to an OH referral in order to facilitate his return to work in that role. Unfortunately, as we have already found, the claimant did not have a substantive permanent Deputy Manager role.

[87]We find that the claimant was dismissed.

[88]We find that the principal reason for the claimant’s dismissal was that he was refusing to undertake an OH referral on the basis that he was returning to an OPG role. We find that that was some other substantial reason.

[89]We have gone on to consider whether the decision to dismiss was fair in all the circumstances. It had been explained to the claimant on numerous occasions that he did not have a permanent Deputy Manager role and that he was an OPG acting up (substitution). We have found that the claimant probably knew that he was acting up. The claimant was given numerous opportunities to engage with Occupational Health and refused to do so. The claimant had numerous meetings prior to the final dismissal meeting at which it was made clear that his employment was in jeopardy. As such, we find that the claimant had numerous opportunities to change his stance in order to maintain his employment. In all the circumstances we do not find that the decision to dismiss fell outside the range of reasonable responses of a reasonable employer. In our judgment, a point had been reached by which time the respondent had no other option.

[90]We find that the respondent made all reasonable efforts to inform itself as to the medical situation and what, if any, adjustments might be needed fot the claimant’s return to work. We find that the respondent made more than adequate efforts to consult with the respondent/claimant over the extended period of time. We find that the respondent could not be expected to wait any longer.

[91]Consequently, we find that the dismissal was fair.

[92]In light of our findings, we do not need to go on to consider the time issues.

[93]The claimant appealed his dismissal.

[94]On 26 October 2022 Ms Julie Forde wrote to the claimant inviting him to an appeals meeting on 2 November 2022.

[95]The appeal hearing was held on 2 November 2022. It lasted from 10am until 11.52. Julie Ford approached the appeal on the basis that it was a rehearing. She reviewed all the paperwork and reinterviewed Graeme Richardson on 9 November 2022.

[96]Julie Forde also referred the claimant to OH. The referral states:- “My reason for this referral is I would like to know if and when Collins will be fit to return to work in any capacity within the business and what if any adjustments could be made to facilitate this return to work in the role of delivery OPG.”

[97]It is in that context that there is the Optima health report dated 2 December 2022. In the section “Current Capacity for Work” the following is recorded:- “In my medical option, his current levels of anxiety and depression symptoms would make returning to work in any capacity very difficult for him at this time. Although he is on medication and has had counselling to help with his symptoms the main barrier to his recovery appears to be the ongoing complaint and appeal process along with his dismissal and the subsequent tribunal. Until there is a satisfactory resolution in this regard it is likely that his mental health will remain poor and at risk. There is not a medical solution to this situation that I have been easily able to recommend.”

[98]On 3 January 2023 the claimant was sent details of all the new evidence and invited to comment. The claimant took advantage of that and did submit comments on 15 January 2023.

[99]On 20 June 2023 the claimant was sent a letter by Julie Forde indicating that the appeal was unsuccessful. Attached to that letter was the appeal decision document which is 15 pages long. The following is recorded within the report:- “There is evidence that managers verbally attempted to address performance issues with Collins but he was not receptive to the advice being given. … What I will add is there does appear to be a lack of structed feedback on Collins’ performance. … I would have preferred to have seen more structured meetings with Collins on his performance over a period of time where his limitations were addressed and a plan put in place for improvement. However I also think it had got to the point where Collins’ poor performance could not continue and it was the correct decision to remove him from the role as deputy manager.”

[100]The decision was as follows:- “The evidence supports that Collins went sick in June 2021 with work related stress after being informed that his role as a deputy manager was combining to an end due to performance issues. There is no indication that Collins will be returning to work in the foreseeable future unless he resumes as a deputy manager. This conclusion has been confirmed by an Occupational Health report. Therefore the notifications related to the business has no reasonable prospect of knowing when you will be fit to return to work in what capacity as an OPG and the business is not satisfied that you intend to return to your employment with Royal Mail Group in the foreseeable future as an OPG are proven. Royal Mail is dependent on the reliability of its employees. This reliability is required to provide the service to its customers, a service they want and pay for. The evidence supports there is no realistic prospect of Collins return to his role as a delivery postman in the foreseeable future. Collins has been absent from work since 05/06/2021 and this level of absence can no longer be sustained. Even if I was to decide to uphold his appeal and he remained employed by the business we would likely be in the same position months down the line.

[101]The appeal was unsuccessful. In our judgment the decision to reject the appeal was not outside the range of reasonable responses of a reasonable employer and was fair. Unauthorised deductions

[102]The claimant has not set out either in his witness statement or in any schedule of loss how this claim is advanced.

[103]From his claim forms, this may be a complaint that after 7 June 2021 he was paid as an OPG rather than as a Deputy Manager. We have found that he was only entitled to be paid as an OPG and, hence, there has been no unauthorised deduction of wages from 7 June 2021.

[104]The claimant’s sick pay was stopped briefly from 7 June 2021. This was due to the fact that he had not provided a fit note. However, this was reinstated when the claimant did provide fit notes. The claimant received six months full pay and six months half pay in line with the respondent’s policy rules.

[105]Accordingly, the claimant did not suffer any unauthorised deduction of wages and this claim is dismissed. Wrongful dismissal

[106]The claimant’s dismissal letter states that he was only paid four weeks’ notice. The claimant was entitled to 12 weeks’ notice. The claimant’s claim for breach of contract is well founded and the claimant is entitled to 8 x £599.20 gross (subject to tax and National Insurance). For the avoidance of doubt this is his pay at OPG grade.

[107]For the aforesaid reasons all the claimant’s claims save in relation to notice pay are dismissed. Employment Judge Alliott Date: 20 December 2024 ............................. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/