Mr D Zelenika-Zelentrovic v Clarity Bristol Ltd T/a Bluebird Care: 6002265/2023
EMPLOYMENT TRIBUNALS
Case No 6002265/2023
Between
Mr D Zelenika-ZelentrovicClaimantClarity Bristol Ltd T/a Bluebird CareRespondent
Before
Employment Judge Mr P CadneyIn person for claimant- MR K SONAIKE (instructed by COUNSEL) for respondentDate 31 August 2025
JUDGMENT
[1]The unanimous judgment of the tribunal is that:- The claimant’s claims of : i) Constructive Unfair Dismissal ii) The failure to make reasonable adjustments s20 Equality Act 2010 iii) Victimisation (s27 Equality Act 2010 Are not well founded and are dismissed. ---1--- Case No: 6002265/2023 (The respondent requested full written reasons orally at the hearing which will be provided in due course. It is not necessary for either party to renew the application in writing.)[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT: BRISTOL ON: 17TH / 18TH / 19TH / 20TH / 21ST /24TH / 25TH FEBRUARY 2025 EMPLOYMENT JUDGE MR P CADNEY MEMBERS: MS D ENGLAND MR C WILLIAMS APPEARANCES:- FOR THE CLAIMANT:- IN PERSON FOR THE RESPONDENT:- MR K SONAIKE (COUNSEL)[4]The unanimous judgment of the tribunal is that:- The claimant’s claims of : i) Constructive Unfair Dismissal ii) The failure to make reasonable adjustments s20 Equality Act 2010 iii) Victimisation (s27 Equality Act 2010 Are not well founded and are dismissed. ---1---
REASONS
[1]By this claim the claimant brings claims of constructive unfair dismissal; disability discrimination in the failure to make reasonable adjustments; and victimisation.[2]The tribunal has heard evidence from the claimant, and has read witness statements from witnesses who were not challenged by the respondent, Stella Holder, Glen Gordon, Abbie Odell Griffin, Samatha Bath and Eleanor Harrison; and for the respondent, heard evidence from Ms Claire Nolan, and Ms Charlotte Treby. In addition the tribunal has considered the 930 page bundle of documents. Claims/Issues[3]The issues as agreed at the previous case management hearing are:[1]Time limits1.1 Given the date the claim for was presented and the dates of early conciliation, any act or omission which took place before 22 July 2023 is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.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 or omission 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]Constructive unfair dismissal2.1 The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust ---2--- and confidence. The breaches were as follows (taken from the list provided by the Claimant as ordered at the last case management hearing):2.1.1 - 27 February 2023 – I first noticed a chronic lack of travel time; complaints raised by myself and others in work WhatsApp group. Management promised matters would improve in this respect.2.1.2 - 2 March 2023 - email sent with concerns about poor communication and lack of travel time. Charlotte Treby promised issues will be resolved, but ultimately management did nothing. This made me stressed.2.1.3 - 20 March 2023 – email report sent to Bluebird management that Mr. C/CJ was very rude to me. I made it clear that this had been happening for a while. Management took no action.2.1.4 - 7 April 2023 – incident with Mrs. E/EG when her family shouted at and abused me. Management failed to contact me to offer support. No action otherwise taken by management, and I was not removed from visiting the property subsequently. I told management I was shaken and upset.2.1.5 - 11 April 2023 – CJ was extremely rude and abusive to me again in front of a colleague, Catharine Dando. Incident reported by telephone and email to Bluebird management. They failed to stop me from visiting the property and otherwise took no action against CJ. By this point constantly stressed and anxious.2.1.6 - 4 May 2023 - Claire Nolan offered no specific explanation why expected staff tombolas had not been done for 3 months. Promises to hold more tombolas never materialised.2.1.7 - 11 May 2023 - Rebecca Parker, the coordinator, tells me to “just stop moaning and do the schedule” when I telephoned to complain about having zero travel time and telling her it’s making me suffer with stress. On the same day I am singled out and attacked personally in the WhatsApp group by Kardale Bellacomo, Claire Nolan’s son in law.2.1.8 - 12 May 2023 - concerns raised by email about events at clients’ houses and lack of travel time again. Promises made by management matters will improve; they were never fulfilled. Mental keeps deteriorating rapidly.2.1.9 - 17 May 2023 - concerns regarding the same raised in person with Georgia Redmond. I made it clear that I was struggling mentally. No reasonable adjustments made or anything done.2.1.10 - 19 May 2023 - concerns raised with Claire Nolan about the same. Promises again made that things will improve. They were never kept. Told Claire I was really suffering. ---3---2.1.11 - 24 May 2023 - CJ abusive towards me again. Reported to management, but no action taken.2.1.12 - 28 May 2023 - Rebecca Parker fails to give me more travel time after being asked. CJ rude to me again on the same evening. Really struggling mentally.2.1.13 - 11 June 2023 - CJ rude and abusive; tells me not to return to the property.2.1.14 - 13 June 2023 - I break down on the telephone with Charlotte Treby and get signed off sick for work related stress by my GP. Despite being informed of this, no additional help was offered.2.1.15 - 8 July 2023 - I call in sick due to poor mental health and tell the manager, Kelly Doyle, that I’m feeling suicidal. No reasonable adjustments made or help offered subsequently.2.1.16 - 24 June to 10 August - constant lack of travel time with no improvements despite promises. My mental health is in pieces.2.1.17 - 10 August 2023 - “last straw” event. I suffer victimisation by being singled out and removed from the work WhatsApp group. Company policies and procedures were not followed by management, leading to me to resign with immediate effect. (The last of those breaches was said to have been the ‘last straw’ in a series of breaches, as the concept is recognised in law).2.2 The Tribunal will need to decide:2.2.1 Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and2.2.2 Whether it had reasonable and proper cause for doing so.2.3 Did the Claimant resign because of the breach?2.4 Did the Claimant wait too long before resigning and affirm the contract?2.5 In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s. 98 (4) of the Act?2.6 Did the matters that constituted the breach amount to disability ---4--- discrimination (section 39(7) Equality Act 2010)?[3]Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)3.1 The Respondent accepts that the Claimant was disabled at the material times by reason of depression and PTSD. Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?3.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:3.2.1 Providing insufficient travel time between appointments in different locations [PCP1];3.2.2 Assigning carers to work with all clients including in cases where a carer has reported that the client and/or their family had been rude to them [PCP2].3.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:3.3.1 The lack of travel time caused the Claimant disproportionate stress and his depression to flare up to the point that he could not adequately do his job [PCP1];3.3.2 Carrying out care visits to families who had been rude to the Claimant disproportionately affected his mental health (i.e. more than it affected other carers [PCP2].3.4 Did the Respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?3.5 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests:3.5.1 Ensuring the Claimant had more travel time [PCP1];3.5.2 Assign the Claimant to clients who required several hours of care in a single block, thereby eliminating the need to drive from home to home [PCP1];3.5.3 Assign the Claimant work within a smaller area [PCP1];3.5.4 Remove the Claimant from having to attend clients who he had reported had been rude to him [PCP2]. ---5---3.6 Was it reasonable for the Respondent to have to take those steps and when?3.7 Did the Respondent fail to take those steps?[4]Victimisation (Equality Act 2010 s. 27)4.1 Did the Claimant do a protected act as follows: 4.1.1.2 At some point between 15 and 20 April to Ms Nolan and Ms Treby in person in the office 4.1.1.3 17 May during an in person conversation with Georgia Redmond 4.1.1.6 Around 23 June, during a telephone conversation with Ms Treby 4.1.1.9 Around the end of July during an in person conversation with Ms Treby and during a telephone conversation with Ms Nolan 4.1.2 Submitting his formal grievance on 23 September 2023; 4.1.3 Submitting his ET1 on 6 November 2023 (which was sent to the Respondent on 27 November 2023).4.2 Did the Respondent do the following things:4.2.1 On 10 August 2023, removing the Claimant from the work Whatsapp group and removing his access to work until he attended a meeting with Ms Nolan.4.2.2 Reporting the Claimant to safeguarding.4.2.3 Alleging that the Claimant had committed a criminal offence in their response to the claim. ---6---4.2.4 Ms Nolan making telephone calls to the Claimant’s ex colleagues and telling them that the Claimant had committed a criminal offence.4.2.5 Refusing to provide a reference to the Claimant’s new employer.4.3 By doing so, did the Respondent subject the Claimant to detriment?4.4 If so, was it because the Claimant had done the protected acts?4.5 Were the protected acts based on allegations that were false and made in bad faith? [The Respondent is to clarify whether they are relying on this issue in their amended response]. Background 4. The respondent operates a care franchise from its Head Office in Keynsham, which provides domiciliary care throughout the Bristol and Bath areas. The claimant was employed on a zero hours contract as a Care Assistant from 8th June 2021 until his resignation with immediate effect on 10th August 2023, which was during his notice period, as he had previously resigned with notice on 10th July 2023. During the period with which we are concerned the claimant performed a regular shift pattern, doing afternoon / evening shifts three days a week, normally including a weekday, Saturday and Sunday, amounting to approximately 20 hours per week. This was the claimant’s choice as it fitted with his business and other commitments.
Background
[5]None of the claimant’s complaints relate to any part of his employment prior to February 2023. However the respondent contends that the background is relevant in that, whilst the claimant submits that his mental health obviously and noticeably deteriorated in early to mid- 2023, which is the basis for the claim of the failure to make reasonable adjustments, and the primary basis for the claim for constructive unfair dismissal; the respondents submit that his behaviour was not noticeably different at that stage from behaviours exhibited previously.[6]In support of this they rely on a number of factors, but in particular the notes of a meeting held with him on the 29th July 2022 to address concerns regarding negativity. This meeting was attended by the claimant, Ms Nolan, and Ms Treby. The notes begin with Ms Nolan noting that the claimants "body language, stance, and mannerisms were aggressive, and that he seemed unwilling to speak.” There had been several reports relating to his negative attitude and the impact that this was having on his colleagues and the customers he attended. The claimant expressed the view that his recent appraisal was insulting and scandalous, and that he was in complete disagreement with the entire review of his first year of employment, which was why he had been exhibiting such negative attitudes/opinions. He objected to having been graded average in some of the categories of his appraisal. He is described as raising his voice and being extremely angry. He was threatening, and frequently mentioned being prepared “for a fight” and that his mother was a Head of HR. He was informed that there had been several reports from colleagues about his being vocal about his issues, and negative about his employment, the business, and management. The claimant admitted to this, and ---7--- explained that he had acted in this way as the office had treated him badly. He expressed the view that he was 50/50 about whether he would leave or stay and could not foresee a solution that was acceptable to both parties as he felt too hurt. In fact there was a follow up meeting on the 16th August 2022, and it appeared that the issues were resolved.[7]The claimant does not suggest that at this point the underlying conditions were symptomatic (he contends that that occurred in February/March 2023), and the respondent relies on the similarity between the behaviours exhibited at a time when he was on his own account not suffering the symptoms or consequences of disability, as being essentially indistinguishable from the behaviours he attributes to his underlying conditions becoming symptomatic. This is particularly relevant to the issue of knowledge of disability, which is discussed in the section of this judgment related to that issue below.[8]The events which form the basis of these claims and which led to the claimant’s resignation, are set out in detail below. In summary the claimant contends that from approximately the end of 2022 onwards there were constant difficulties with travel times between appointments, and with rotas being prepared which showed insufficient or on occasion no travel time. Nothing was done to remedy this. In addition he suffered abuse from two clients or members of their families, from which the respondent did nothing to protect him. He found this extremely stressful which caused the deterioration in his mental health in the early part of 2023, and the failure to address these concerns led him to resign firstly on notice on 10th July 2023, and then with immediate effect on 10th August 2023. He also contends that the acts which prompted his resignation, and various post termination actions of the respondent are acts of victimisation. Facts[9]There are a number of factual issues at the heart of the case which we will deal with first.[10]Travel Time - From the records of the claimant’s shifts in the bundle it appears that each shift lasted from approximately 3:00 pm until 10:00 pm, during which the claimant would be required to attend a number of appointments, and travel between them. It is not in dispute that in the early to the middle part of 2023 that the respondent was extremely short staffed. The evidence of the respondent’s witnesses is that following the emergence from the various COVID lockdowns that they had not been able to restore their full complement of staff. This position had been exacerbated by the increased availability of jobs in the hospitality industry. These roles were taken up by people who might otherwise have been available to work care shifts. The result was that that in common with the rest of the industry, the respondent had insufficient staff and struggled to recruit. They made a number of attempts to rectify this in that they were effectively constantly advertising and attempting to recruit; when staff left they attempted to persuade them to remain as bank staff to be available to provide at least some cover; and they attempted to persuade existing staff to take up overtime opportunities. However during the period with which we are concerned, essentially from February/ March 2023 to August 2023 this had resulted in them not being able to recruit a full complement of ---8--- staff. In addition there were a number of factors which affected the shifts on any given day. These included sickness absence, holidays and other reasons for carer absence; or hospitalisation of the customer. In addition their software system was misfunctioning and on occasion allocated shifts without any travel time and or insufficient travel time. It had made a policy decision not to use agency staff both for reasons of cost and the difficulty of ensuring the quality of care provided by them when they were not known to, had not been trained by, and only worked on an ad hoc basis for the respondent.[11]The respondent’s evidence is that these factors were all well-known to its own staff, and within the industry generally; and that pressure on travel time between appointments, and travel difficulties were, at least at that time a frequent feature of the sector in which they work. Dealing with these difficulties was a day to day, and shift to shift, management problem which involved the active monitoring and re-organisation of carers and appointments. Once the appointments had been identified and rotas had been allocated for a particular shift, this would involve the co-ordinator attempting if necessary to secure more carers via requests for overtime or for cover from bank staff. There are innumerable examples in the bundle of such requests being made both before and during shifts. If during a shift a carer was over-running and would be late for an appointment, he or she would notify the co-ordinator who would attempt to notify the customer and/or arrange for cover for that appointment. In addition, the evidence of Ms Treby was that the managers themselves would cover appointments as and when necessary. The respondent does not therefore dispute that managing appointments generally was a specific problem during the period spring/summer of 2023 when they were short staffed.[12]The respondent accepts that it received the number of complaints, albeit generally informally in the WhatsApp group about insufficient travel time, but they essentially contend that there was nothing more they could do at that stage other than the methods set out above, in the absence of successful further recruitment which they were attempting.[13]Client/Customer CJ - One of the claimant’s regular clients was CJ. The evidence before us is that on each day CJ had three relevant appointments during the claimant’s shifts, at tea, evening and bed time and that during the claimant’s shifts he would regularly be allocated to CJ.[14]The Claimants first complaint about CJ was made in an e-mail of the 20th March 2023 in which he states “While I very much wanted to avoid making a fuss about this, the issue is starting to wear me down. CJ is becoming increasingly rude and even when taking his understandable frustrations into account, he is starting to cross the line. For example around two weeks ago KH was with me when she was looking for his prunes, (she was looking in all the places where CJ told her to look). When she couldn't find them CJ said “Didn't you go to school don't you know what prunes look like?... On Friday night E.. and I were changing CJ and somehow got onto the topic of being rough when changing someone. CJ then said to me ”You're rough and I'm surprised customers don't complain. I said nobody complained to which he kept rolling his eyes. I then jokingly said I won't bring him any more cake to which he said “I don't care about your cakes I've bought some kitkats”. However I think he must have thought about this and had an attack of ---9--- conscience because later in the visit when he was in bed he said “Please do bring me cake I don't want only kitkats.” My colleagues and I are starting to experience this behaviour on nearly every bedtime visit and often teatime visits. From what people tell me CJ tends to be in a better mood in the mornings so he isn't usually as rude. I'm not sure what you can do about this but as I say it's starting to wear me down and I know others are also feeling the same.”[15]On 23rd March 2023 there was an Observation Supervision Record of a visit by the claimant to CJ, which makes no criticism of the claimant or CJ or any of their interactions.[16]On 12th April 2023 the claimant emailed stating “I'm sad to report that CJ has been extremely rude yet again last night at CJ's bed call.” He went on to set out a dispute about two pillows with CJ insisting that they had always been put under his slide sheets, and the claimant insisting that they hadn't. He states CJ said “No they've always been there”, followed by patronising comments. I once again responded to say that they definitely haven't. CJ then looked at me straight in the eye and shouted “Well you're wrong”. As mentioned to Georgia I am now rapidly losing sympathy for CJ because despite the current stresses of losing his mum and the impending house move he is continuingly speaking to me like a piece of dirt under his shoe. I'm not prepared to attend his bed call again until after I return from holiday. His lunchtime and teatime calls are fine it's only at bedtime that he seems to get rude. By the time I return from holiday he is due to have moved house, and I'm hoping this will settle down his mood in the evenings.”[17]As set out in the e-mail shortly thereafter the claimant went on holiday and it does not appear that he was rota’d with CJ again until the weekend of the 13th/14th May 2023. On 12th May the claimant emailed stating “There are some outstanding work related issues which are making me very unhappy at the moment. Firstly events with E and CJ. Not a single person from management's ever approached me in the light of the incidents which have occurred at these properties to debrief or reassure me or even just to ask if I need any support (by the way I did need support). I have no idea if anything has been done or even if these incidents are formally resolved. Nobody even responded to my last e-mail regarding CJ's rudeness. I am now feeling apprehensive about going there tomorrow as this behaviour may just repeat again”. Ms Treby replied stating “We are aware of your reports of CJ's rudeness and I can only apologise if you did not receive an e-mail response but this was discussed when you were in the office. He has been dealing with some huge changes in his life but I could see from his care notes his mood has improved dramatically since moving into his new home. It would be great to have your feedback after you attend this weekend.”[18]In cross examination the claimant accepted that there was no feedback from that weekend, and from the shift records within the bundle it appears that between then and 24th May 2023, that the claimant undertook a number of appointments with CJ, which did not result in any further complaint.[19]On 24th May 2023 the claimant emailed stating , “Please reply to acknowledge receipt of this e-mail and to let me know what will be done about this issue. I write about CJ's rudeness yet again but before I continue it has become apparent from my colleagues ---10--- that this is happening to many different carers and is starting to unsettle the team at large”. He goes on to name a number of carers and states that CJ has been very rude to them and others. He states that “CJ was fine at last night's tea call but when Michelle and I returned at bed call CJ was in a bad mood and seemingly had it in for us. As soon as we walked through the door he kept being verbally aggressive and used personal insults. For example he kept saying, “It's a good thing I've got my head on my shoulders because neither of you to do” and “You haven't got a clue what your job is”. We asked CJ multiple times to stop. He would not instead became even worse. We also asked him several times why he was behaving like this. He would not answer this questions. Things came to a head when we changed CJ into his nightwear. Michelle asked him to decide how he'd like to put on his nightshirt, i.e. whether head or arms first. CJ refused to answer. When Michelle went to put it on CJ raised his voice at her that she was doing it wrong and “No that's wrong you should know how to do it”. We then had no choice but to tell CJ in no uncertain terms that he is completely out of order, and has to stop this behaviour immediately, and that if we spoke to him in the same way he would definitely make a complaint. This finally brought a screeching halt to his outbursts and he calmed down.” I have reported this multiple times before. My colleagues say they have as well. You have done nothing but brushed this situation under the carpet and dismissed it as his mum died and he's moving house… you haven't actually investigated the issue or directly asked CJ why he's behaving the way he is. I'm now at the end of my tether, things carry cannot carry on like this. I'm not paid to endure abuse and personal insults constantly from customers. If you carry on brushing this under the carpet it's frankly a duty of care issue towards me and I will simply refuse to go to CJ's again at any point in the future.[20]The respondent contends that these concerns were addressed. There are care notes which relate to a visit apparently conducted by Cameo Mitchell at 3:00 p.m. on the 31st of May 2023. However the evidence as to this is not at all clear. The respondent’s witnesses thought that the initial visit was conducted by Georgia Redmond, not Cameo Mitchell, who may then herself have conducted a visit, or may not yet have attended. The notes themselves relate to speaking to four carers and two care managers. There was some evidence that some of the carers had noticed CJ being more agitated and in a low mood but none appeared to suggest that this was a matter of any great significance, and CJ himself, whilst accepting that he was feeling in a low mood recently, did not recall being rude or unkind to the carers. He was very complimentary about them, and he was reminded of the need to be respectful to them.[21]The claimant does not accept that this document is genuine and contends that it has been forged for the purposes of this litigation. This appears to us to be an unlikely proposition, and whatever the confusion as to the date and identity of the individual making the visit it is not likely that the contents of the report are not genuine. We are supported in this view by the fact that the claimant was clearly aware at the time, or very shortly thereafter, of the views expressed by his colleagues, as in an email of 13th June 2023 he expresses his “disgust” at colleagues who made “a song and dance” about CJ’s behaviour but then denied it once the formal investigation began. Similarly in a follow up meeting with Ms Treby on 15th June he refers to considering resignation, the main reason being that fact that his colleagues had not been honest about their experiences with CJ. ---11---[22]For completeness sake, again according to the shift records in the bundle it appears that between 24th May and the 11th June 2023 the claimant attended a number of further appointments with CJ, without any complaint as to his behaviour.[23]On the 11th of June he wrote stating, “It is with significant disappointment I am forced to write to you once more about the issue of CJ's rudeness… He has also said he never wants me to return to his property. Tonight at the bed call it was immediately obvious that he was in a bad mood. He laid into both Michelle and I about the fact that his bin lid had been left open, “Which one of you left it open? How can you think not think to close it?... Michelle did apologise and said it may have been her but this did not calm CJ down at all, and he went on what I can only describe as a tirade. He was incredibly rude and we had to leave the room. After a further exchange CJ said “I don't want you coming here ever again I've had enough”.[24]Ms Treby replied on the 12th June 2023 and stated, “It sounds like due to the escalation of the situation it would be sensible to place an exclusion on you attending CJ. I understand he has now requested this to you but I think this is also the right decision for your well-being. We are always keen to “resolve not remove” where possible, but currently I do not think that would be conducive to either of you. It's something we can revisit and work on in the future. If you would like to come in and discuss this further I am more than happy to have a chat.[25]As set out above on 15th June 2023 the claimant and Ms Treby had a meeting to discuss the situation with CJ; and as far as we are aware the claimant was not rota’d to attend CJ between then and his resignation.[26]EG - An incident occurred when the claimant and another carer attended EG on the 7th April 2023. When the carers arrived EG was on the floor, having apparently slipped from her chair, and her son G who was there stated that she had been sick twice prior to the fall. The claimant explained at that they were not permitted to lift her from the floor back onto her chair. There is no consistent account as to what happened thereafter. The claimant alleges that EG's other son C became extremely agitated and abusive, swearing at the claimant and the other carer for their refusal to assist his mother up off the floor. During the incident the claimant spoke to a manager who advised the carers to leave, as the paramedics had arrived, but to return later. In fact they did not return. The claimant subsequently complained about the conduct of C, and about the fact that he was apparently being blamed for having promised to return and not having done so, when in fact the promise was made by the manager on the phone. The claimant has adduced in evidence the witness statement of G in which G states that C swore at the claimant because he thought the claimant was laughing either at his mother or at the situation. G states that the claimant was not laughing at his mother but “just being chirpy in a bad situation”.[27]The evidence of Ms Nolan is that there was a discussion with C thereafter, who accepted the explanation as to why the carers were not permitted to assist his mother, and verbally apologised and asked that this be conveyed to the claimant. This apology was conveyed verbally by her to the claimant. The claimant disputes this. ---12---[28]In addition there is in the bundle a Post Incident Debrief. The claimant’s position as to this is not entirely clear. At points he suggested that it was a forged document, but that it was in general accurate, save for an entry ”Is there a need for follow up support call/ meeting for staff member”. “A check in was done with Dino and he does not feel he will require any extra support. He has been reminded that we are here for him if we are ever needed and he knows how to reach us.” The claimant insists that that never occurred. In our judgement given that the claimant agrees that the majority of this document is accurate, it is extremely improbable that it is not genuine, and if genuine it follows that in all likelihood the comments were made as recorded.[29]It is not clear thereafter how often the claimant attended EG. His evidence is that in the days following this incident there was a frosty atmosphere, and that despite being informed by the carers and managers that the claimant was acting in accordance with policy in not assisting in lifting EG from the floor, that the family did not initially accept this. However, there is no further record of any complaint as to any rudeness or abuse from her family in any subsequent appointment with EG.[30]Tombolas – It is not in dispute that the respondent had held monthly staff tombolas which were paused in early 2023 for some three months. They were entirely noncontractual. In evidence the claimant accepted that this was a minor issue but asserts in his closing submissions that the failure to run it shook his confidence in the respondent, and it is one of the matters he relies on in support of his claim for constructive dismissal . 31. 10th August 2023 - Claimant removed from Whatsapp Group – It is not in dispute that on 10th August 20123 the claimant was removed from the WhatsApp group by Ms Nolan and that this prompted his immediate resignation (the last straw as set out above).[32]The chain of WhatsApp messages begins with the Bath Co-ordinator sending a general message asking for help at the weekend to which the claimant replied “how about the long promised monetary bonuses to give staff a bit more incentive to drop everything and work?” That prompted a response from Dale “ “We literally got a pay rise last month?, to which the claimant responded “ Do you seriously think 50p more an hour cuts it in line with all the price rises? Then again we can expect an unconditional defence from Claire’s son in law”. Ms Nolan replied saying “Dino, your continued negativity is unacceptable. You are being removed.”[33]As set out and discussed below, the claimant does not accept that his perceived negativity was the genuine reason for his removal from the WhatsApp group.[34]Safeguarding – On 1st December 2023 the respondent received information which it regarded as raising safeguarding concerns, and they informed the Police and the Safeguarding authority on the same day. The information received was that two carers had been attending a client GM that day, when the claimant, whose employment had ended nearly four months earlier, had entered the house apparently without any specific invitation and using the key safe, and then knocked on GM’s bedroom door and entered before waiting for a reply. He was asked to leave by one of the carers and did so saying that he would return later. ---13---[35]A similar report of the claimant entering a former clients home uninvited some six weeks earlier in similar circumstances, was received on 6th December 2023 and a further safeguarding referral made in respect of it.[36]A safeguarding investigation concluded by a letter of 3rd September 2024 with no action being taken against the claimant.[37]Reference – It is not in dispute that whilst the safeguarding enquiry was ongoing the respondent received a request for a reference. Ms Nolan accepts that she did not provide one. Her evidence is that she took advice from the safeguarding authority and the solicitors representing the respondent in these proceedings and was advised by both not to reply whilst the safeguarding investigation was ongoing. Claims[38]We will deal first with the disability discrimination claim as that is central to the case.[39]Disability- It is not in dispute that at all material times relevant to this claim that the claimant was a disabled person with the meaning of s6 Equality Act 2010 by reason of depression and/or PTSD.[40]Causation- The claimant contends that the symptom or consequence of his depression and /or PTSD was his “disproportionate” reaction to workplace stress, in particular difficulties over travel time and rudeness/abuse from customers, as set out above. There is in fact no medical evidence before us that the onset of any mental health difficulties in early 2023 was a recurrence of a pre-existing condition and if so whether depression or PTSD, or both; and specifically no medical evidence that the disproportionate reaction to those events is causally linked to either condition. However, the claimant has not been challenged in this assertion, and no point is taken by the respondent, and in the circumstances as it not issue before us it would be unfair to attempt to determine the point, and we accept the claimant’s assertion of a causal link.[41]Knowledge – The respondent does not accept that it ever had actual or constructive knowledge of either condition at the material times, between February/March and August 2023. The claimant submits that they had actual knowledge of his previous diagnosis and treatment for depression, and that the expression of his “disproportionate” reaction to the workplace stresses was sufficient to place the respondent on actual or constructive notice of the fact and consequences of his disability. The resolution of the factual disputes, and our conclusions in respect of this are set out below.[42]Law – Paragraph 20(1) of Schedule 8 to the Equality Act 2010 (EqA) provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know: ---14--- That a disabled person has a disability and is likely to be placed at a disadvantage by the employer’s provision, criterion or practice (PCP), — para 20(1)(b).[43]That requires the tribunal to answer two questions: i) Did the respondent have actual or imputed / constructive knowledge of the condition amounting to a disability; and if so ii) Did it have actual or imputed knowledge that the PCP placed the employee at a substantial disadvantage.[44]Actual Knowledge – The dispute as to actual knowledge relates to whether the claimant did or did not use the phrase” reasonable adjustments”, in a number of verbal exchanges / meetings as set out below.[45]Constructive / Imputed Knowledge- The words “could not reasonably be expected to know’ in para 20 of Schedule 8 require the tribunal to consider whether the employer had ‘imputed’ or ‘constructive’ knowledge of the disability.[46]Evidence - The claimant contends that prior to the events with which the tribunal is directly concerned that the respondent was fully aware of his mental health issues. His evidence is that his mental health first declined in October 2021, which led him dropping from his original four shifts per week to three, which remained in place for the rest of his employment. He informed Claire Nolan during a telephone call that he suffered from depression and that he had a full mental health breakdown during the first Covid 19 lockdown. This led to the completion of Managers Risk Assessment in November 2021 (see below).[47]The first document is the Yearly Health Declaration statement dated 18th June 2021, shortly after the claimant commenced employment. In response to the question “Anything that may affect your mental well-being (anxiety, depression, difficulties in dealing with stress)?, the claimant replied “previous depression diagnosis (not currently an issue and no longer taking medication), and “no” to the question are you currently receiving medical treatment for short term or long term health concerns?[48]In a Manager’s Risk Assessment dated 17th November 2021, and signed by Wednesday Watson and the claimant, the declared health area is identified as “Depression” and the risk as “Depression - depression could impact his ability to attend work and his levels of engagement, cause low mood, affect ability to make decisions, cause lethargy which could lead to mistakes.” In respect of the question “How any potential risks will be managed and additional support required.”, the response is “Depression - regular supervision. Dino has been prescribed medication for his depression historically. Attends GP regularly for support. WAP meeting to be conducted to assess well-being and identify potential further support. Dino informed of workplace healthcare scheme including access to counselling and of workplace mental health first aid team”.[49]In a health declaration statement dated 15th June 2022 the claimant answered no to the same two questions as in para 48 above. ---15---[50]A Wellbeing Action Plan dated 14th November 2022 had the following questions and answers: Q: What helps promote your mental well-being at work? A: do you know finds that just coming into work helps but finds that his mental health does not affect his ability to work. Q: what can you manage to do to proactively support your mental well-being at work? A: Dino feels very supported at work and now knows that he can get in touch to talk about anything if needed. Q: are there any situations at work that can negatively impact your mental well-being? A: Dino is very able to communicate any frustrations or difficulties and feels listened to when he has raised concerns. Q: If you were having a bad day with your mental well-being how might it impact your work? A: Do you know feels it would not impact his work and that getting on with his day is more helpful. Q: are there any early warning signs that we might notice when he was starting to experience difficulties with your mental well-being? A: Not that he I can think of. Q: What support could be put in place to minimise any well-being issues or help you manage the impact? A: At the moment Dino doesn't think there is anything he needs. Q: Are there any elements of your individual working style or personality that it is worth your manager being aware of? A: not currently. Q: if we notice early warning signs that you are experiencing difficulty with your mental well-being what should we do? A: Dino doesn't think this will happen and he is very open and honest about things so will come to us. Q: what steps can you take if you start to experience difficulty with mental well-being at work? A: Dino knows he can come to us and have a chat about anything. Q: is there anything else you would like to share? A: just that he appreciates us taking the time to do this and he knows what to do if he needs anything.[51]To summarise, by the point of the WAP in November 2022 the claimant had disclosed: ---16--- i) A previous diagnosis of, and the prescription of medication, for depression; ii) That the depression was previous/historic and that he was no longer taking medication for depression; iii) There were no adjustments that were required up to that point; iv) He had not at any stage disclosed the fact of or any diagnosis of PTSD.[52]The claimant’s case is that the onset of his mental health difficulties thereafter began in around February/March 2023 and that on nine occasions between the 2nd March 2023 and the end of July 2023 he verbally requested reasonable adjustments in the various meetings and conversations set out at paragraphs 4.1. 1.1 – 4.1.1.9 of the list of issues: 4.1.1.2 At some point between 15 and 20 April to Ms Nolan and Ms Treby in person in the office 4.1.1.3 17 May during an in person conversation with Georgia Redmond 4.1.1.6 Around 23 June, during a telephone conversation with Ms Treby 4.1.1.9 Around the end of July during an in person conversation with Ms Treby and during a telephone conversation with Ms Nolan[53]Actual Knowledge - The claimant’s oral evidence is not that that he made requests or gave information that could reasonably be interpreted as a request for reasonable adjustments, but that he expressly used the words “reasonable adjustments” in each of those meetings / conversations. The respondent’s evidence is that he did not do so, and that whilst he voiced at various points complaints about the respondents management of various issues such as travel time and rudeness/abuse from customers, which are dealt with in greater detail above, he had at no stage given any further information as to his depression and or PTSD. He specifically did not ever request or use the phrase “reasonable adjustments”, and they did not know that either of the conditions was now symptomatic and/or that either placed him at a substantial disadvantage.[54]There is no documentary evidence in the form of notes of the meetings / conversations to support or contradict explicitly the account of either party. However the respondent submits that even the documentary evidence relied on by the claimant in this case ---17--- contains no reference explicitly to either of the conditions, or to the requirement to make a reasonable adjustments. They contend that given the volume and regularity of the claimant’s complaints during this period, that it is inconceivable that had the claimant explicitly sought “reasonable adjustments”, firstly that he would not have put this in writing specifically identifying the adjustments required, and secondly that if they had not been made that he would not have complained about this in the correspondence. The emails in question are set out in detail below in relation to the issue of constructive knowledge, but it is unquestionably correct that in none of them does the claimant explicitly refer to the requirement to make reasonable adjustments, or complain that his request for them has not been met. In addition in his grievance submitted in September 2023 after the conclusion of his employment he makes no reference to the failure of the respondent to make reasonable adjustments. Moreover, although in the ET1 the Box for disability discrimination is ticked, the claimant does not either in the ET1 itself or the accompanying timeline assert a claim for the failure to make reasonable adjustments. The first time the claim is explicitly set out is in the Further and Better Particulars supplied in April 2024 following the respondent’s request in its ET3.[55]In our judgement had the claimant in each of the verbal conversations relied on between March and July explicitly requested reasonable adjustments it is very difficult to understand why no reference to them appears in any of the written communications. Having heard the evidence of Ms Nolan and Ms Treby we are satisfied and accept their evidence that the claimant did not explicitly request any reasonable adjustments in any of the conversations he refers to; or explicitly alert them to any recurrence of either condition or of it becoming symptomatic.[56]It follows that in our judgment that the respondent had no actual knowledge of the fact that the claimant’s depression had recurred or become symptomatic; and no actual knowledge at any time of any diagnosis of PTSD.[57]Constructive /Imputed Knowledge - That leaves the question of what the claimant said in those written communications, and whether from them and the other expressions of his views and conduct that the respondents ought to have being on notice at least to make inquiries as to his mental health.[58]As it is the claimants case that in any event that the respondent was or should have been on notice of his disability and/or its consequences from March 2023 onwards we will set out the relevant parts of the written communication from that point (although his repeats some of the parts of the emails as set out above it will be helpful to set them so as to make our conclusions more easily comprehensible. We have underlined the passages that the claimant specifically relies on as showing his state of mind).59.2nd March 2023 – The claimant sent an email referring to the lack of travel time between appointments and describes” feeling very tired from the fact that I have raised this multiple times and nothing has been done about it”. The response from Ms Treby is, “I will have a look and see what I can do and understand it is difficult. We are hopeful that when some of the new recruits are up and running this will ease the pressure for everyone. Thank you for your continued hard work.” ---18---60.20th March 2023 - The claimant sent an e-mail respect of CJ's rudeness stating” While I very much wanted to avoid making a fuss about this the issue is starting to wear me down. CJ is becoming increasingly rude…”. He goes on to set out the details of a specific incident but and concludes “I'm not sure at what you can do about this but as I say it's starting to wear me down and I know others are also feeling the same.”61.7th April 2023 – Following the incident involving EG there is a record of a Post Incident Debrief between the claimant and Ms Geogia Redmond. In response to the question whether there is a need for follow up support it reads “A check was done with Dino and he does not feel he will require any extra support. He has been reminded that we are here for him if we are ever needed and he knows how to reach us”.[62]Whilst the claimant accepts that the PID is broadly accurate that he contends that this conversation never took place and is fictitious. In our judgement it is very difficult to see why this should be the case or why was Ms Redmond would have invented a conversation or details of it which never took place. Ms Redmond has not been called to give evidence and so we have no direct evidence from her as to this but in our judgement the assertion that this part of the PID is invented it is extremely improbable and on the balance of probabilities we do not accept it.63.11th April 2023- On the 11th of April in an exchange with at Clare Nolan in respect of the same incident the claimant states” I request you please meet with them ASAP to somehow diffuse this if it can actually be diffused as otherwise it's not really practical for me to keep going there.” To which Ms Nolan responds “I'm aware of this situation and of course we will be speaking with all of the family.”64.12th April 2023 - The claimant sent an e-mail once again reporting that CJ had been extremely rude to him in the previous night’s attendance he states, “I am now rapidly losing sympathy for CJ because, despite the current stresses of losing his mum and the impending house move, he is continuously speaking to me like a piece of dirt under his shoe. I'm not prepared to attend his bed call again until after I return from holiday (his lunchtime and teatime calls are fine it's only at bedtime he seems to get rude). By the time I return from holiday he is due to have moved house and I'm hoping this will settle down his mood in the evenings.”[65]The claimant then appears to have been on holiday from approximately 12th April until around 10th/11th May 2023.66.11th May 2023 - On the 11th May in the course of a chain of WhatsApp messages the claimant states that “Travel time has been an issue for so long and certainly before I went on my holiday it was horrendous. Maybe if you took steps to sort it out once and for all peoples tempers wouldn't be boiling over.” This was part of a series of messages with a number of carers complaining about travel time generally and in particular that they appeared to have been given rotas which allowed for no travel time at all.67.12th May 2023- The claimant e-mailed stating that “Some outstanding work related issues are making me very unhappy at the moment. Firstly events with E&CJ. Not a single person from management has ever approached me in the light of the incidents ---19--- which have occurred at these properties to debrief or reassure me or even just to ask if I need any support (by the way I did need support)… I am now feeling apprehensive about going there tomorrow as the behaviour may just repeat again….. We are constantly being told that the office is there to support us yet regarding the above I have not felt supported even one iota. On the contrary I've been feeling vulnerable and like I've been left open to further unacceptable behaviour in the future….. Secondly I'm just back from holiday and already dreading doing my first shift tomorrow because there is no travel time at all…. I do not feel this is at all acceptable….. Lastly I need to stress that I have raised these issues privately again and again. I have been patient and have deliberately not complained on every occasion there has been issues… I find myself faced with the worst runs and travel times that I have ever experienced… I'm starting to lose hope and not see the light at the end of the tunnel. Frankly I don't think you're listening to me or anyone else at all…. I'm at a point now where I am starting to consider my position as I did not feel that experiencing stress of this magnitude is worth it.[68]Ms Treby responded stating that " since the incidents you have been on holiday. We do not feel it's necessary to contact to contact you regarding situations such as these when you were on leave. You are entirely entitled to your time off. If you at any point require support you can contact management at any time. I spoke to you on the Saturday you began your annual leave and you did not mention any of this…… we are aware of your reports of CJ's rudeness and I can only apologise if you did not receive an e-mail response, but this was discussed when you were in the in the office. He has been dealing with some huge changes in his life but I can see from his care notes his mood has improved dramatically since moving into his new home it would be great to have your feedback after you attend this weekend. .. I've had a look at your travel time for tomorrow and made some amendments to make it more practical/realistic. As always please feel free to contact the coordinator if you notice specific issues she is new to the role and is doing a sterling job however she is human and will make errors.. We work in one of the busiest high pressured industries I can assure you everyone is working extremely hard and we recognise this is the team in in its entirety we continuing to recruit to ensure we are sufficiently staffed to cover the work but we are also met with short notice changes sickness last minute emergencies etc and we cannot perform the impossible….. I'm away next week but more than happy to meet with you the following week if you would like face to face conversation.[69]On 18th May 2023 the claimant responded to Ms Nolan saying “I presume from the forward that you are inviting a reply. I did receive Lottie’s e-mail on the day she sent it but I haven't replied because I have nothing to say..,….. ..Going forward if there will be no acknowledgment that things could be improved/done differently then there's frankly no point at all in me going to the carer’s forum. Complete defensiveness without compromise isn't conducive to making anyone very happy.”[70]Miss Nolan responded on the 18th May 2023 inviting the claimant to a face to face meeting at which in fact took place the following day the 19th May 2023.71.17th May 2023 - Prior to that on the 17th May 2023 the claimant had held a face to face supervision with Georgia Redmond. During this supervision it is recorded that” Dino feels the travel time is too short in places which causes an added strain to himself, Dino ---20--- believes that other carriers are also experiencing this strain. He states this is affecting him emotionally and wearing him down. He stated again that busy runs are difficult to manage". Later on he states that he did not feel that he was being listened to, and describes himself ”as being at the end of his tether.”72.24th May 2023 – The claimant emailed saying” Please reply to acknowledge receipt of this e-mail and to let me know what will be done about this issue. I write about CJ's rudeness yet again before I continue it has become apparent from my colleagues that this is happening to many different carers and is starting to unsettle the team at large…” he goes on to refer to the tea time shift being fine but CJ being rude at during the evening shift, “we then had no choice but to tell CJ in no uncertain terms that he is completely out of order and has to stop this behaviour immediately and that if we spoke to him in the same way he would definitely make a complaint this finally brought a screeching halt to his outbursts and he calmed down… I have reported this multiple times before and my colleagues say they have as well. You have done nothing but brush this situation under the carpet and dismiss it as his mum died and his moving house. These such as presumptions on your part and you haven't actually investigated the issue or directly RCJ why he's behaving the way he is… I am now at the end of my tether. Things can cannot carry on like this. I'm not paid to endure abuse and personal insults constantly from customers. If you carry on brushing this under the carpet it is frankly a duty of care issue towards me, and I will simply refuse to go to CJ's again at any point in the future.. Please reply to tell me what will be done about this support is now required from you.[73]Georgia Redmond replied saying” I apologise that this was your experience during the visit. I'm in the process of contacting carriers to get a fuller picture and we'll move forward with this when I have heard back. Please bear with me as I address this issue.” 74. 12th June 2023 - On 12th June 2023 the claimant emailed stating “It is with significant disappointment that I am forced to write to you once more about the issue of CJ's rudeness…He has also said he never wants me to return to his property.. This issue has now gone on for so long and not being nipped in the bud I also do not find it at all acceptable that Georgia went to see CJ but gave neither me nor anyone else any feedback about why CJ is behaving in such a way or how we can avoid these house outbursts. Things have now escalated again tonight with no end in sight”.[75]Ms Treby replied stating ,“That does not sound like a great situation to be in I'm sorry you had to experience that…. Georgia went out and spoke to CJ about the concerns she reported back to us and in the first instance we were confident the concerns were addressed we also planned for cameo to attend the property to have a further discussion with him but unfortunately this has not happened yet. It is not standard practise to report back from confidential meetings with customers there may be information disclosed but you are not privy to… in this case we did not feel it necessary to report to you and it's for you to trust your concerns with action.. It sounds like due to the escalation of the situation it would be sensible to place an exclusion on you attending CJ. I understand that he is now requested this to you but I think this is also the right decision for your wellbeing. We're always keen to resolve not remove where possible but currently I do not ---21--- think that would be conducive to either of you it is something we can revisit and work on in the future. If you would like to come in to discuss this further more than happy to have a chat.”[76]12th June 2023- The claimant replied “I have to say I feel you are completely wrong with not giving feedback to carers I actually manage people myself and I say with 100% certainty that your approach is completely and utterly wrong. It is making everyone who attends those visits feel unsupported.. This is all contributing to my unhappiness at the moment and I don't think I can carry on much longer. And no I don't trust you as the office at all at the moment that you are supporting me and your approach above is a big reason why.”[77]Ms Treby replied stating, “When you initially raised concerns about CJ and his mood we investigated within the care team most of the team had no concerns or reports of this nature we made CJ aware of the reports to given up give him an opportunity to reflect he also had no information to give there is therefore no feedback we then made the decision for a follow up meeting with cameo this is not happened yet I appreciate this has been a concern for you and therefore the last solution is to place an exclusion. This is not something we do often we encourage resolution and partnership working however I can see this as escalated for you and we are left with no alternative….. I have offered you support during every communication I've also offered for you to come in and discuss this situation you often do not reply and have yet to take me up on this offer. As I know you appreciate there are many at customer concerns filtered through to us daily… there has been no other member of the team attending CJ who was raised concerns feeling unsupported. We do not want you feeling this way do you know but I'm unsure what your expectations are… the door is open my phone is on as is Claire’s. .I encourage you to call us pop in and talk you are a valued member of the team and we can all see your passion for the industry but we can't always wave a wand and fix things although we absolutely would if we could.. As I said previously we do not want you unhappy and we're here to listen whenever you need it both inside and outside working hours78.8th July 2023 – The claimant asserts that he called in sick on 8th July 2023 and told Kelly Doyle that he was suicidal. She has not been called to give evidence, but the note in the email she sent to Ms Nolan on 10th July reporting on the weekend includes , “ Dino called sick for this evening and tomorrow, he said he did not want to talk about it and will come into the office next week. All he said was he's not in a good place - calls covered.” She followed up by advising him to go to his GP. The claimant emailed Ms Nolan on 10th July sending his resignation. In her reply Ms Nolan states that she had spoken to Kelly that morning. In her evidence to the tribunal she stated that she had no recollection of the conversation. It is the claimant’s case that Kelly would and should have told her that he was suicidal and that she must he been on notice from this point of his mental health difficulties.79.21st July 2023 – The respondent’s evidence is that the claimant attended the office, shouted at Ms Treby and then left. Ms Nolan called the claimant asking him to come into the office but he simply shouted at her and put the phone down on her. At no point did he state he needed any reasonable adjustments. ---22---[80]Sickness absence – In addition to the assertions as to what he told the respondent the claimant relies on his increasing sickness absence. He was off sick from 13th June 2023 to 24th June 2023. He then went off sick on 8th July 2023, before returning at some point prior to 10th August 2023.[81]Conclusions – The claimant submits that the emails outlined above clearly show that he was finding it increasingly difficult to cope with the stress caused by the travel/ customer issues (see for example the reference to “stress of this magnitude” on 12th May 2023) and that the respondent, given that it knew of at least one previous episode of and treatment for depression, must or ought to have been on notice that his mental health was suffering and/or deteriorating. The claimant submits that it must have been apparent from his increasing expressions of desperation, and the fact, as he asserts, that his reaction to these incidents was disproportionate and out of line with the reaction of other carers involved, that his reaction was to at least some extent irrational and should have been recognised as such by the respondent.[82]The respondent does not accept this. It asserts that the claimant’s communications are of a piece with his conduct throughout his employment, in that he was consistently over dramatic, aggressive, and complaining. There was nothing different in this correspondence. The claimant had consistently said in the earlier health questionnaires that he knew how to seek help, and had never done so, and had explicitly stated “no” when asked on 7th April whether he need any support. In addition although he was absent through sickness it did not at any stage receive a fit note and did not know of the cause of the absences.[83]Whilst we have some sympathy for the respondent it does appear to us that the tone of the claimant’s emails were becoming increasingly desperate, and his reaction was clearly disproportionate to the issues or events in question. It follows that in our judgment by 12th May 2023 they were on notice, at least in general terms that the claimant’s mental health was deteriorating and they had constructive knowledge of his disability from that point. Reasonable Adjustments[84]PCPs - The first issue is that of whether the respondent had the asserted PCPS:3.2.1 Providing insufficient travel time between appointments in different locations [PCP1];3.2.2 Assigning carers to work with all clients including in cases where a carer has reported that the client and/or their family had been rude to them [PCP2].[85]Travel Time – The respondent asserts that it had no such PCP, and that in fact the PCP was to provide sufficient travel time which was done via Google maps. Whilst there may have been occasions, and sometimes frequent occasions, when the rotas included insufficient travel time, this was not a PCP, but a reflection of the situation they found ---23--- themselves in in the early part of 2023. In any event they could not have had any such PCP because the actual travel time during any particular shift would be determined by the traffic and road conditions irrespective of the time allocated on the rota. It could often be the case that the same journey conducted at different times or different days would be shorter or longer than the time allocated. In determining whether the respondent had such a PCP we note that on 17th May 2023 in the supervision with Georgia Redmond the claimant states “Dino feels there is no balance in the runs stating there can either be too many calls with no travel time or too few calls and too many gaps”. If this is correct, the claimants actual complaint as late as 17th May 2023 was not in fact the consistent lack of travel time, but inconsistency in the travel time allocated, which clearly militates against the suggestion that there was any such PCP.[86]The full history of the relevant shifts is set out in the bundle, and the claimant has in fact adduced no evidence of any failure to provide sufficient travel time during any particular shift. In reality it appears that the claimant’s real complaint is not that insufficient travel time was provided during the shifts themselves (and if it is there is no evidence to support it) but the lack of planned travel time in the rotas which caused him to become stressed about attempting to achieve the unachievable. If this is correct, the actual PCP relied is not of failing to provide sufficient travel time, but of allowing staff to access the rotas in advance which did not always include sufficient travel time. In our judgement, we are not persuaded on the balance of probabilities that the respondent did have a PCP of providing insufficient or no travel time.[87]However in the event that we are wrong in that conclusion we have gone on to consider the reasonable adjustments contended for in any event.[88]Customer Rudeness – The respondent also contends that it had no such PCP. However, as set out above the respondent does not dispute that on occasion a carer refuses to continue to attend a client, or a client refuses to continue to accept a carer. In these circumstances they always attempt to resolve the issue before imposing an exclusion. In our judgement it follows automatically that they do have a PCP of continuing to assign carers to clients where there has been a report of rudeness.[89]Substantial Disadvantage – The claimant submits that his disproportionate reaction to the application of these PCPs, which went beyond the annoyance and irritation felt by his non-disabled colleagues, is the substantial disadvantage. In our judgement he is clearly correct to submit that his reaction was disproportionate; and his e-mails were indicating that he was suffering significant stress. As set out above there is no medical evidence establishing a causal link, but in the absence of any challenge or the point being taken we accept the claimant’s evidence as to substantial disadvantage.[90]Reasonable Adjustments : The adjustments contended for are:3.5.1 Ensuring the Claimant had more travel time [PCP1];3.5.2 Assign the Claimant to clients who required several hours of care in a single block, thereby eliminating the need to drive from home to home [PCP1]; ---24---3.5.3 Assign the Claimant work within a smaller area [PCP1];3.5.4 Remove the Claimant from having to attend clients who he had reported had been rude to him [PCP2].[91]The first three relate to the first PCP (travel time). In fact during the hearing the claimant’s case as put to the respondent’s witnesses was primarily put on a different basis; that it should have altered its decision not to use agency staff, and to recruit and use agency staff until it had had been able to recruit sufficient permanent staff to remedy the problem. The respondent submits that it is not open to the claimant simply to require the respondent to change the way it conducted its business. It had rational reasons for not wishing to employ agency staff in respect of both the cost of doing so, and also the fact that it had an ”outstanding” rating and did not wish to jeopardise that by engaging staff it did not know, and it is not a reasonable adjustment for the claimant to attempt determine how the business should be run. In any event it cannot objectively be a reasonable adjustment to require it take on extra staff to remedy the problem that even on the claimant’s own account involved a disproportionate reaction to the problem.[92]The respondent also makes an overarching submission that in any event, it did make the only reasonable adjustment necessary. If the rota showed insufficient travel time the adjustment is to allow sufficient travel time during the shift itself. Since it could not control the actual travel time, the adjustment would in fact involve constantly monitoring and adjusting the timing of, and/or which carer attended particular appointments, which was precisely what it did. As set out above the evidence, which we accept is that both prior to and during shifts they sought cover through overtime and bank staff, and that when necessary managers covered shifts. To return to the point made above, the respondent contends that the claimant has not attempted to, or adduced any evidence that the time provided for travel during the shifts themselves was insufficient, which means that necessarily they either had no such PCP, or that if they did, that during the shifts themselves the necessary adjustments were made. It follows automatically that none of the adjustments contended for by the claimant were objectively necessary as it was already making the relevant adjustment as part of its ordinary day to day management of shifts.[93]In our judgment this is necessarily correct and we can deal relatively briefly with the specific adjustments.[94]In respect of the first adjustment the respondent submits that as a matter of fact, and for the reasons set out above, it did in fact make this adjustment to the shifts themselves. The amount of time allocated on the rota for travel was immaterial as the travel took as long as it took. If less time than was necessary, or no time at all had been allocated on the rota, it would simply mean that there would be increasing delays in attending the late appointments, which would require the co-ordinator to keep the customers informed and/or arrange alternative cover for those appointments. Since it could not govern travel time by definition sufficient was always supplied during each shift. ---25---[95]In respect of the second the respondent’s evidence is that this was simply not possible. There were three clients who had large blocks of care. Two required only female carers, and the third was a daytime shift which did not coincide with the claimant’s availability. In respect of the latter point, they point out that the claimant’s availability was determined by him and not them and at no point did the claimant ever suggest that he could work different shifts.[96]In respect of the third the respondent submits that this was simply not always possible. It is in the respondents interests to allocate carers to appointments within the smallest geographical area to the extent that that is possible, in the claimant’s case generally the Keynsham area, but that this could not be guaranteed. In evidence the claimant contended that another carer had been provided with a restricted geographical area in which to work which demonstrated that this was possible. He adduced no evidence in support of this and the respondent’s witnesses evidence was that this was not true. The carer in question did request to work in one area but was in fact required to, and informed she was required to work where necessary. We accept the respondents evidence as to this.[97]It follows that we are not able identify any reasonable adjustment that the respondent failed to make in respect of travel time.[98]The fourth adjustment relates to the second PCP. Once again the actual PCP contended for is different to that set out in the List of issues. The claimant contends, particularly in relation to CJ, not that he should have been permanently removed earlier, but temporarily so as to allow or some form of mediation.[99]EG - In respect of EG the respondent submits that there was one incident which was not repeated, and there was simply no basis for, and the claimant never requested to be removed from EG. Indeed they contend that the issue had apparently been resolved with the apology of C which had been conveyed to the claimant. There was objectively, nothing further that needed to be done at any point.[100]CJ - In respect of CJ they contend that the claimant’s claim is entirely retrospective. The claimant continued to be rota’d to attend CJ, indeed he was one of his regular clients. The relationship between them appears to have broken down on or about the 10th June when CJ stated he no longer wanted the claimant to care for him. The claimant contends that if the respondent had excluded him earlier and set up a process of mediation that things may not have come to a head in June. Whilst this may be correct it does not follow that objectively there was any requirement to do so before 10th June 2023. Firstly in between the shifts of which the claimant complains, there were many others which appear to have been completely uneventful, and about which no complaint is made. They point to the fact that the claimant himself volunteered to return to caring for CJ on his return from holiday, and that he did so, it was apparently without incident between 13th May and 24th May 2023. When he reported the problem on 24th May 2023 they investigated and discovered that none of the other carers, nor CJ himself considered that there was the problem alleged by the claimant. Moreover they contend that the claimants complaints about CJs behaviour are essentially trivial, and not shared by the other carers, and that there was objectively no basis for excluding, whether ---26--- temporarily or permanently the claimant, particularly as if he claimant felt strongly he could have refused to attend CJ in any event.[101]They contend that the claimant’s case has an obvious logical difficulty. If his reaction to the problems with CJ was disproportionate, as he states and as they accept, any earlier investigation would have reached the same conclusion as was reached on 31st May 2023, that neither the other carers nor CJ himself recognised the problems perceived by the claimant and that here was objectively no need to remove him from caring for CJ. If the claimant subjectively no longer wished to care for CJ that was a choice he could have made himself but never did. In those circumstances there was no point prior to 10th June 2023 at which removal/exclusion of the claimant from caring for CJ was an objectively reasonable adjustment.[102]In our view this must also be correct.[103]Conclusions – It follows that in our judgment we are unable to identify any objectively reasonable adjustment that the respondent failed to make; and that these claims must be dismissed. Victimisation[104]A protected act is defined as (s27 Equality Act 2010): (2) Each of the following is a protected act–(a) bringing proceedings under this Act;(b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. Protected Acts –[105]The protected acts relied on are: 4.1.1.2 At some point between 15 and 20 April to Ms Nolan and Ms Treby in person in the office ---27--- 4.1.1.3 17 May during an in person conversation with Georgia Redmond 4.1.1.6 Around 23 June, during a telephone conversation with Ms Treby 4.1.1.9 Around the end of July during an in person conversation with Ms Treby and during a telephone conversation with Ms Nolan 4.1.2 Submitting his formal grievance on 23 September 2023; 4.1.3 Submitting his ET1 on 6 November 2023 (which was sent to the Respondent on 27 November 2023).[106]For the reasons set out above we have not accepted factually that the alleged oral protected disclosures occurred. That leaves the claimant’s grievance and the ET1 / claim form.[107]Grievance – In the grievance the claimant does not expressly refer to any breach of the Equality Act; but he does refer to himself as a war survivor who suffers from depression, and refers to the whole experience contributing negatively to his mental health. On that basis the grievance is in our view at least arguably a protected act. This is not of any great practical significance as there is no detriment which is affected by this finding in any event.[108]ET1 – The ET1 is self-evidently a protected act falling within s27(2)(a) as it brought a claim of disability discrimination. above[109]Detriments -4.2.1 On 10 August 2023, removing the Claimant from the work Whatsapp group and removing his access to work until he attended a meeting with Ms Nolan.4.2.2 Reporting the Claimant to safeguarding.4.2.3 Alleging that the Claimant had committed a criminal offence in their response to the claim.4.2.4 Ms Nolan making telephone calls to the Claimant’s ex colleagues ---28--- and telling them that the Claimant had committed a criminal offence.4.2.5 Refusing to provide a reference to the Claimant’s new employer.[110]On the basis of our findings as to the protected acts, the first alleged detriment falls away as it occurred before either of them.[111]In respect of the others the claimant points the coincidence in time between the ET1 being lodged and served, and the events surrounding the safeguarding referral and the reference, and the lack of documentary evidence supporting Ms Nolan’s evidence as to these events.[112]Safeguarding – As set out above there is no dispute that she made the safeguarding referral. She contends that this was simply and straightforwardly on the basis that the information was that the claimant had entered a former clients house using the key safe without a specific invitation or any knowledge on the part of the former client that he intended to do so; and thereafter entered her bedroom without permission. This raises obvious safeguarding concerns that she was bound to report. The claimant essentially contends that in the absence of any complaint from the client herself, that any safeguarding referral was vindictive and unnecessary, and must necessarily have been an act of retribution for one or more of the protected acts.[113]We accept the respondent’s evidence. In our judgment the incident as described to Ms Nolan raised obvious safeguarding concerns, and we accept that she had no alternative but to make the referral, and that it was not causally linked to the either of the protected acts.[114]Similarly we accept her evidence that whilst she was in contact with a number of members of staff that she did not specifically identify the claimant as the individual concerned. There is no evidence before us that she had done so, and the claimant’s own witness, Ms Batt does not allege that she did. It follows hat here is no evidence before us to support this allegation.[115]The reference to the pleading relates to paragraph 41 of the response. This was drafted by the respondent’s solicitor, and does not in fact allege that the claimant had committed a criminal offence, but that it reserved the right to make such an allegation in future. As far as we are aware, the allegation has not in fact been pursued further. Although it has not been argued before us, it is clearly arguable that it was covered by judicial proceedings immunity in any event. However it is not necessary to decide that as here is in our judgement no evidence that it was anything other than the respondent’s legal advisors response to the claim . Whilst it would not have been pleaded but for the receipt of the ET1, that is not the test we are required to apply, we are entirely satisfied that there is no causal link between any protected and this pleading.[116]Reference – As set out above Ms Nolan’s evidence, which we accept, is that she did not rely to the reference because of advice from the safeguarding authority and the respondent’s solicitors not to do so. We accept that this is true and the reason for the ---29--- absence of a response, and accept that there was no causal link between this decision and either of the protected acts.[117]It follows that the claimant’s victimisation claims must be dismissed. Constructive Dismissal[118]As set out above the claimant relies on a number of factors as being individually or cumulatively a breach of the implied term of mutual trust and confidence The implied term of mutual trust and confidence is set out in Malik v. Bank of Credit; Mahmud v. Bank of Credit (19987 AC 20; 1199713 All ER 1; 119971 IRLR 462; 1199713 WLR 95; 119977 ICR 606 . An employer shall not: "…without reasonable and proper cause, conduct itself in a manner calculated (or) likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."[119]If such a breach or breaches is established it need only be part of the reason for resignation to found a successful claim : Nottinghamshire County Council v Meikle [2004] IRLR 703).[120]The test is objective. In Tullet Prebon PLC and others v BCG Broker LP[2011] IRLR 240, it was held that the central question is whether objectively considered the employer’s conduct has evinced an intention to abandon and altogether refuse to perform the contract.[121]In respect of the last straw, Underhill LJ has set out five questions for the tribunal to address (Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR1): i) What was the most recent act (or omission) on the part of the employer which the claimant says caused, or triggered his resignation? ii) Has he or she affirmed the contract since that act? iii) If not, was that act (or omission) by itself a repudiatory breach of contract? iv) If not, was it nevertheless a part (applying the approach explained in LB Waltham Forest v Omilaju [2005] ICR 481) of a course of conduct comprising several acts and omissions, which viewed cumulatively amounted to a breach of the Malik term? v) Did the employee resign in response (or partly in response) to that breach ?[122]There are in essence three possible findings in respect of the last straw. It may firstly, in and of itself a repudiatory breach of contract. Secondly it may not constitute such a breach in and of itself but did so, when considered cumulatively with other acts or ---30--- omissions. Thirdly it may be an entirely innocuous act which is not capable either individually or cumulatively of contributing to a repudiatory reach (see Omilaju).[123]The relevant passages from Omilaju in respect of this question are:19. The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at p 671F-G where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, "squeezes out" an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the ---31--- employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above).[124]The acts relied on are:2.1.1 - 27 February 2023 – I first noticed a chronic lack of travel time; complaints raised by myself and others in work WhatsApp group. Management promised matters would improve in this respect.2.1.2 - 2 March 2023 - email sent with concerns about poor communication and lack of travel time. Charlotte Treby promised issues will be resolved, but ultimately management did nothing. This made me stressed.2.1.3 - 20 March 2023 – email report sent to Bluebird management that Mr. C/CJ was very rude to me. I made it clear that this had been happening for a while. Management took no action.2.1.4 - 7 April 2023 – incident with Mrs. E/EG when her family shouted at and abused me. Management failed to contact me to offer support. No action otherwise taken by management, and I was not removed from visiting the property subsequently. I told management I was shaken and upset.2.1.5 - 11 April 2023 – CJ was extremely rude and abusive to me again in front of a colleague, Catharine Dando. Incident reported by telephone and email to Bluebird management. They failed to stop me from visiting the property and otherwise took no action against CJ. By this point constantly stressed and anxious.2.1.6 - 4 May 2023 - Claire Nolan offered no specific explanation why expected staff tombolas had not been done for 3 months. Promises to hold more tombolas never materialised.2.1.7 - 11 May 2023 - Rebecca Parker, the coordinator, tells me to “just stop moaning and do the schedule” when I telephoned to complain about having zero travel time and telling her it’s making me suffer with stress. On the same day I am singled out and attacked personally in the WhatsApp group by Kardale Bellacomo, Claire Nolan’s son in law.2.1.8 - 12 May 2023 - concerns raised by email about events at clients’ houses and lack of travel time again. Promises made by management matters will improve; they were never fulfilled. Mental keeps deteriorating rapidly.2.1.9 - 17 May 2023 - concerns regarding the same raised in person with Georgia Redmond. I made it clear that I was struggling mentally. No reasonable adjustments made or anything done. ---32---2.1.10 - 19 May 2023 - concerns raised with Claire Nolan about the same. Promises again made that things will improve. They were never kept. Told Claire I was really suffering.2.1.11 - 24 May 2023 - CJ abusive towards me again. Reported to management, but no action taken.2.1.12 - 28 May 2023 - Rebecca Parker fails to give me more travel time after being asked. CJ rude to me again on the same evening. Really struggling mentally.2.1.13 - 11 June 2023 - CJ rude and abusive; tells me not to return to the property.2.1.14 - 13 June 2023 - I break down on the telephone with Charlotte Treby and get signed off sick for work related stress by my GP. Despite being informed of this, no additional help was offered.2.1.15 - 8 July 2023 - I call in sick due to poor mental health and tell the manager, Kelly Doyle, that I’m feeling suicidal. No reasonable adjustments made or help offered subsequently.2.1.16 - 24 June to 10 August - constant lack of travel time with no improvements despite promises. My mental health is in pieces.2.1.17 - 10 August 2023 - “last straw” event. I suffer victimisation by being singled out and removed from the work WhatsApp group. Company policies and procedures were not followed by management, leading to me to resign with immediate effect. (The last of those breaches was said to have been the ‘last straw’ in a series of breaches, as the concept is recognised in law).[125]Those fall into a number of distinct categories: i) Complaints as to travel time (2.1.1 / 2 / 7 / 8 / 9 / 10 / 12 / 16); ii) Complaints as to the behaviour of CJ/EG and EG’s family (2.1.3 / 4 / 5 / 11 / 12 / 13) iii) Tombola (2.1.6) iv) Rudeness from Karbala Bellacomo (2.1.7) v) Not being offered help whilst off sick. (2.1.14/ 15) vi) Removal from the WhatsApp Group (2.1.17)[126]Claimant’s Submissions – The detailed consideration of the allegations of breaches of the implied term contain little reference the claimant’s submissions. The reason for this is that the claimant’s written submissions contain his detailed submission as to the disability discrimination claims, and relatively general short submissions as to the constructive dismissal claim. It is apparent that to a large extent the constructive ---33--- dismissal claim rests on the allegations of disability discrimination, which for the reasons set out above we have not upheld.[127]Respondent’s Submissions - The respondent’s submissions are set out in relation to the individual allegations[128]Travel Time- The respondent submits that these allegations face a logical difficulty. The question of whether there has been a breach of the implied term is to be determined objectively by the tribunal. If on his own admission, the claimants reaction was objectively disproportionate, which is a proposition he relies on in relation to his disability discrimination claims both in relation to knowledge of disability and the claims themselves, the difficulties cannot be individually or cumulatively objectively be a breach of the implied term.[129]Moreover the second part of the test (“reasonable and proper cause”) cannot in any event be established, as it was known and accepted that the staff shortages were not the choice of the respondent, and remedying them essentially not within the gift of the respondent, which had done and was doing all it could reasonably do to recruit more staff.[130]It follows that for both those reasons, on any analysis these allegations are bound to fail as breaches of the implied term, even if they are factually made out.[131]In addition it asserts that they are not factually well founded in any event. Whilst there may have been insufficient planned travel time the problem was self-correcting as the times were adjusted during the shifts themselves; and in any event the actual time taken was outside the respondents control. By definition there was always in fact sufficient travel time during the shifts themselves, even if there was not on the planned rotas. Insofar as the claimant is complaining about insufficient travel time during the shifts themselves there is no evidence to support this factually.[132]There is one allegation (2.1.7) that he was criticised for raising the issue of travel time. However, the respondent submits that it is clear from the WhatsApp message relied on that it was not sent to the claimant personally. It is part of a chain of messages from a number of members of staff voicing complaints about travel time, some too little, some too much with too few visits. Becky replies “Please all calm down. Travel time is always an issue, I do try to give as much as possible. The issue for right now is OPass is playing up and not showing the correct calls for what I have booked. It is overlapping the calls you have and also placing you at multiple destinations at the same time.” The respondent submits that it is perfectly clear that Becky was informing those complaining that it was a software system malfunction which she was having to manually correct. In fact the claimant was never criticised in any way, or disciplined for failing to meet unrealistic travel times.[133]It follows, in the respondents submission, that by whatever route, and on whatever basis these claims are not capable individually or cumulatively forming part of a breach of the implied term. The respondent submits that this is of significance in this case this was the central point in dispute between the parties; and the rest of the allegations are relatively minor or trivial. ---34---[134]Conclusions – In our judgment the respondent is correct in all of these submissions. Clearly had these allegations succeeded as allegations of disability discrimination he constructive dismissal claim would have been bound to have succeeded. However we accept the respondent’s submissions that objectively it is impossible to identify any breach of the implied term.[135]CJ/EG Rudeness/Behaviour - As set out above the basis of the claimant’s claims of disability discrimination is that his reaction to those events was disproportionate; and as he accepted in evidence his role required him to have a high degree of empathy and tolerance for those for whom he was caring. As the respondent’s investigation into CJ showed, the other carers did not view his behaviour as the claimant did. The claimant’s contention is that the breach of the implied term is the failure to prevent him from being exposed to similar behaviour after the claimant complained.[136]The respondent submits firstly that these allegations face the same logical problem. If his reaction was objectively disproportionate, as he asserts and relies on in relation to the disability discrimination claims, that objectively there is no evidence of any conduct sufficient to breach the implied term; and the evidence support of this is that none of the claimant’s colleagues viewed any of the incidents as he did.[137]Moreover in fact it did all that was necessary in response to the claimant’s complaints. It investigated the claimant’s complaints, and spoke to the other carers who did not support them. In any event it is always open to a carer to say that they will not attend a particular patient; and if at any point the claimant no longer wished to care for CJ /EG it was always open to him to decline to do so.[138]In respect of EG this was on the face of it a one off incident that did not require any further intervention. Looked at overall they contend that there was no conduct capable of objectively damaging or destroying the relationship of mutual trust and confidence.[139]Conclusions – Again in our view the respondent is correct in these submissions and there is nothing, in our judgment, either in relation to the underlying incidents, or the respondent’s reactions to them which objectively would seriously damage or destroy mutual trust and confidence; and nothing which could amount to a breach of the implied term.[140]Tombola – The claimant’s evidence, and submission is that whilst he accepts that he had never won, and that this was entirely non-contractual, the removal of it and the absence of an explanation for the removal shook his confidence and trust in the respondent.[141]The respondent submits that on any analysis this could not individually or cumulatively contribute or amount to a breach of the implied term. As it was noncontractual it was always open to the respondent to run it or not run it, and the suggestion that not to do so is a breach of the implied term is unsustainable. The temporary pausing of a non -contractual benefit for all employees, which did not target ---35--- and/or was not directed at the claimant by definition cannot be a breach of the implied term.[142]Conclusions – In our judgment again the respondent is right. Whilst in some circumstances the removal of a non-contractual benefit might be sufficient to amount to a breach of the implied term; the removal of a staff tombola is self-evidently at the trivial end of the spectrum and in our judgement could not individually amount to or cumulatively contribute to a breach of the implied term.[143]Karbala Bellacamo - The claimant objects to the comment made by Karbala Bellacomo. The exchange involved the claimant saying I relation to the respondent “.. Maybe if you took steps to sort it out once and for all people's tempers wouldn't be boiling over..”, to which Mr Bellacamo replied “ .. A bit rude to say “If you took steps to sort it out once and for all” when we all know the travel time isn't the best due to a range of issues such as carer sickness.” The respondent submits that this is simply an exchange of views between two employees on the Whatsapp group cannot be a breach by the respondent of the implied term. In effect the claimant appears to be suggesting that it is a breach of the implied term for a fellow employee to disagree with him, which is necessarily absurd; and cannot possibly be sufficient to individually or cumulatively destroy or seriously damage the term of mutual trust and confidence.[144]Conclusions – Again in our judgement the respondent’s submissions are correct; and this cannot amount to or contribute to a breach of the implied term.[145]No help being offed on or after 13th June / 8th July. – They respondent submits that this is simply factually incorrect. On 3th June Charlotte Treby e- mailed the claimant stating “I have offered you support during every communication, I've also offered for you to come in and discuss this situation, you often do not reply and have yet to take me up on this offer. The door is open, my phone is on, as is Claire’s, I encourage you to call us, pop in and talk. You are a valued member of the team,”. Iin addition there were meetings on the 15th June 2023, 22nd June 2023 and a return to work meeting on the 6th July 2023. On 8th July she sent a message to the claimant “Hi Dino just wanted to check in with you to see if you're OK.. We also offer counsel through work. If you would be interested you know where I am if you need anything or someone to talk to.”; and in an e-mail on 14th July she states “If you would prefer to speak face to face again then as always the door is open.”[146]The respondent submits that in the circumstances the allegation that no help was offered to him between the 13th of June and the 8th of July is simply factually incorrect; and that this allegation is bound to fail for that reason alone.[147]Conclusions – Again in our judgement this is correct.[148]Removal from Whatsapp Group- This is relied on as the last straw, and is on the face of it, in our judgement capable of being a breach of the implied term given that it involved the removal of one employee from a group communication open to others. The background is that, as the respondents point out, that in September 2021 the WhatsApp group had been shut down entirely due to instances of people commenting ---36--- inappropriately; that in May 2023 Charlotte Treby had reminded staff about the group rules stating ”This is absolutely not the platform for debate.. Remind yourselves of the group rules.”; and in July 2023 Cameo Mitchell had reminded staff that ”this is not the place nor does it help to resolve these issues”. It is with this background, that the respondent concluded that the claimants comment " Do you seriously think 50p more an hour cuts in line with all the price rises? Then again we can expect an unconditional defence from Claire's son-in-law”.[149]The respondent submits that in the circumstances, it had good and proper reason to remove the claimant from the WhatsApp group in that his comment was clearly in breach of the group rules; as he himself knew or should have known.[150]Conclusions -We again accept the respondent’s submissions and accept that it had reasonable and proper cause for removing the claimant from the WhatsApp Group.[151]Overall Conclusion - It follows that as we have not found that any of the acts relied on individually or cumulatively are a breach or breaches of the implied term, the claimants claim for unfair dismissal must also be dismissed.