The Judgment of the Employment Tribunal is that the claimant was not at the material time a disabled person within the meaning of section 6 of the Equality Act 2010.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 10 May 2023 in which he complained that he had been unfairly dismissed, discriminated against on the grounds of disability and unlawfully deprived of a redundancy payment, notice pay, holiday pay, arrears of pay and other payments. He also sought to bring a claim of wrongful dismissal and personal injury. ETZ4(WR)[2]The respondent submitted an ET3 response in which they resisted all claims made by the claimant.[3]A Preliminary Hearing was listed to take place on 13 March 2024 in order to address two preliminary points: 1. Whether the claimant is and was at the material time a disabled person in terms of section 6 of the Equality Act 2010; and 2. Whether the claimant was seeking to amend his claim, and if so, whether the application to amend should be allowed.[4]The Hearing was listed to take place by CVP. The claimant appeared, but was unable to communicate by means of video, and accordingly he attended by telephone only. He was willing to participate in this way, and the respondent’s representative raised no objection.[5]The respondent was represented by Mr Milvenan, solicitor.[6]At the outset of the Hearing, Mr Milvenan confirmed that the respondent did not have any particular objection to the application to amend, but wished to have some case management done in relation to that.[7]The claimant gave evidence on his own behalf, and a set of productions was presented to the Tribunal and referred to in the course of the Hearing.[8]Based on the evidence led and information provided, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[9]The claimant, whose date of birth is 12 July 1987, commenced employment with the respondent on 11 April 2021, and his employment there ended on 17 February 2023.[10]In his agenda document prior to an earlier Preliminary Hearing, the claimant confirmed that he relied upon two conditions as disabilities within the meaning of the 2010 Act, namely sinusitis and “mental health challenges, specifically depression and anxiety”.[11]The claimant said that he suffers from sinus problems, generally day to day, and when his sinuses are blocked, they cause him severe headaches. His last absence from the respondents’ workplace was caused by a chest infection.[12]However, before the Tribunal, the claimant maintained that the main factor in his disability was that of his mental health. He said that he had suffered issues in childhood which had caused him considerable mental health difficulties, to the extent that he could not remember his childhood before the age of 10 or 11.[13]The claimant advised that he often stresses about problems, turning matters over in his head. Just before he commenced employment with the respondent he had suffered a period of depression, but at that point, he had ceased taking anti-depressant medication (he had been on sertraline for approximately 6 months).[14]Initially he was appointed as a standard milk delivery driver, with the same route each day. He was promoted in April 2022 to Team Leader. He had to supervise and cover 3 other drivers, who were on 6 significant routes.[15]In that new role, he said he felt additional pressure, particularly as setting a schedule for the week involved constant changes. His partner suffered a miscarriage, and his grandfather died. From approximately July 2022, his mental health deteriorated, though he wanted to get on with his job. He did, over time, have a number of issues with his attendance with Covid-19 related symptoms, and as a result had been taken to formal meetings about his absences.[16]His partner happily became pregnant again, but required to be in hospital on 3 occasions prior to the baby’s birth on 29 January 2023.[17]The claimant did not attend his GP during his employment with the respondent. He said he goes up and down, but felt that he could manage his illness. He intended to go and seek help at the point when he was then dismissed by the respondent.[18]The claimant’s medical records show that on 24 March 2016, he was referred by a Dr Hall to a counsellor and to a psychologist for a “Beating the Blues” course (59). His medical records also show that Dr Hall noted, on 22 March 2016, (61) that the claimant had suffered from “Low mood for at least 2 years, poor sleep, becomes angry easily, poor motation [understood to mean ‘motivation’], loss of appetite, gets anxious & panicky everything seems black, and thoughts suicide, own business but little work at moment.”[19]On 2 August 2019, the claimant was prescribed fluoxetine, an antidepressant.[20]On 6 September 2019, (57) the claimant was provided with a fit note for the period between 28 August and 18 October 2019, giving anxiety with depression as the reason for absence.[21]On 4 November 2019 (61), a nurse telephone triage noted that the claimant, while not suicidal, would not leave the house, and sought a GP appointment to discuss his worsening mental health.[22]In April 2023, the claimant phoned the practice and spoke to a nurse practitioner who noted that his mental health was deteriorating, though again he had not thoughts of harm. He was unhappy as he had been trying to obtain an appointment for 4 months. The claimant reported that he had been feeling low for 4 months, and that he had a lot of stressors at that time. On examination on 28 April 2023, (67) he was suffering from “Anxiety ++, Sweating, shaking, head racing, on edge, churning in stomach. Feels angry about the situation with work. Subjectively he feels his mood is ‘exhausted’. Objectively presents as low. Loss of interest in activities, no longer doing things that he would before. Poor motivation and lack of interest. Tearful on telephone.” It was recommended that he would recommence on sertraline.[23]He was seen again at the practice on 16 May 2023, which was some 3 months after the end of his employment with the respondent. It was noted (67) that he was “disgruntled” about a number of factors relating to his work, and the GP surgery, and that he was feeling stressed about all of this. It was noted that “John states that he is low in mood and he ‘cannot take anymore’. He is not actively suicidal, and there was evidence of forward planning. Objectively his mood appears to be euthymic, and he is tending to tasks that are needing done and to do with instructing this court case…Easily upset and feels angry with situation to do with work and his paternity being ‘ruined’. He describes feeling ‘empty’. John is under a lot of stress, he does not present as Clinically depressed and an increase in medications are unlikely to help this presentation as it is related to Social factors.” He was continued on sertraline 10mg at that time.[25]The claimant’s evidence was that he was not taking any medication while working for the respondent, as each medication had its own side effects. He found that sertraline caused him to be more anxious, and has now been prescribed venlafaxine.[26]The claimant’s medical records do not show any treatment being given in respect of sinusitis.[27]The claimant said that when he was at work his conditions did not affect his work performance, as he would seek to do his best there. He accepted that he was not clinically depressed in May 2023 but upset and angry about the way he had been treated at work. He said that being clinically depressed would have meant being in bed unable to do anything. Submissions[28]For the respondent, Mr Milvenan submitted that the claimant had not met the criteria for disability in relation to either depression and anxiety or sinusitis. He set out the definition in section 6 of the 2010 Act, and noted that the burden of proof is on the claimant, to prove that he is and was at the material time a disabled person on the balance of probabilities.[29]The respondent’s submission is that the relevant period is 14 April 2021 until 17 February 2023.[30]He argued that, taking into consideration the terms of the claimant’s medical records, the claimant has not shown that he was suffering from the impairment of depression at the relevant time. He was receiving no treatment nor was he attending medical appointments. Similarly he has not proved that he has been suffering from a disability in the form of sinusitis.[31]Mr Milvenan referred to the guidance and to section 212 of the 2010 Act.[32]The claimant maintained that depression had been a recurring issue for his entire life since 2011. He said that he did not see himself as disabled but does have a daily problem with his mental health. He has to deal with his condition daily, as it is “never not there”. With maturity, he said, he has been able to go without help for periods of time, but when his stress increases then he requires to seek help. Discussion and Decision[33]The Tribunal must determine a number of matters, based on the evidence available, in considering whether or not the claimant was at the material time a disabled person within the meaning of section 6 of the Equality Act 2010.[34]The definition of disability is set out as follows in section 6(1) of the 2010 Act: “A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[35]The onus of proof rests on the claimant to prove on the balance of probabilities that she has a relevant impairment within the statutory definition (McNicoll v Balfour Beatty Rail Maintenance Ltd 2002 ICR 1498, at paragraph 19).[36]In this case, the claimant relies, it appears, upon two conditions as amounting to disabilities under the 2010 Act.[37]He indicated that the major condition under consideration is that of anxiety and depression, but that he also relies upon sinusitis.[38]Dealing with sinusitis first, it is my judgment that the claimant has not proved, on the balance of probabilities, that this condition amounts to a disability in terms of the Act. It is not clear that the claimant was, at the material time, suffering from this condition, which is a physical impairment, in such a way that it had a substantial adverse effect upon his ability to carry out normal day to day activities. He was able throughout his employment with the respondent to attend work and carry out his duties. There was no significant evidence provided by the claimant that this condition had anything more than a minor impact upon him during the period of his employment.[39]However, the claimant did say that the primary condition upon which he relies is that of anxiety and depression.[40]During the course of his employment, the claimant did not require to be absent from work due to this condition. There is no doubt that the claimant has, over a period of years, suffered from anxiety and depression. He has in the past had periods of absence from work – for example, in August and September 2019 (57), and at the point of his employment ending he was signed off as not fit for work due to mental health issues on 17 February 2023 and thereafter – but during his employment he did not require to be absent from work due to anxiety and depression.[41]In addition, the claimant’s medical records, together with his own evidence, confirmed that the claimant had not attended his doctor for any assistance or treatment in relation to his mental health during the course of his employment, except, it appears, on the final day of that employment. The claimant was not prescribed any anti-depressant medication during that employment.[42]The claimant did have a number of absences from work during his employment, though they related to Covid symptoms.[43]The claimant’s own evidence was that he did not attend his doctor during his employment as he believed he could manage his own condition. He said that when he “gets near the edge, I go and seek help”. From this it can be inferred that he was not “near the edge” – which I interpret as suffering from substantial adverse effects upon him – during the course of his employment with the respondent.[44]There is no doubt, in my judgment, that the claimant has suffered from depression in the past, and perhaps at the time of this Tribunal hearing. However, the claimant requires to prove on the balance of probabilities that his condition was such as to have a substantial, adverse, long-term effect on his ability to carry out normal day-to-day activities. In my judgment, the claimant has not proved that his condition, during his employment and therefore at the material time when the respondent’s allegedly unlawful acts of discrimination took place, had a substantial adverse effect upon him. He was able to continue to work, and he has not demonstrated that he was unable to do anything of substance in his evidence or in the medical evidence provided. The condition may be a long-term, if fluctuating, one, but in my judgment the evidence does not justify a finding that the claimant suffered at the material time from a condition which had a substantial adverse long term effect upon his ability to carry out normal day to day activities.[45]Accordingly, it is my judgment that the claimant was not at the material time a disabled person within the meaning of section 6 of the Equality Act 2010.[1]The claimant presented an application on 27 September 2024 to the Tribunal for strike-out of the respondent’s response, on the basis that the respondent’s defence has no reasonable prospect of success. The respondent opposed this application.[3]Parties then agreed that it was appropriate for the Tribunal to address the application by way of written submissions alone.[4]I set out a summary of the application and submissions, summarise the law briefly and then my decision below. ETZ4(WR) The Application[5]The claimant set out his application by reference to a number of statutory provisions, and attached thereto a number of “Exhibits” or documentary evidence which he relied upon in support of his application.[6]He relied upon that evidence in support of his claim of automatically unfair dismissal under section 99(1)(c) of the Employment Rights Act 1996 (ERA) for a reason connected with taking paternity leave. He argued that he was dismissed during the protected period, and that his dismissal was therefore automatically unfair, the employer’s reasoning or intentions being irrelevant. The evidence he provided related to the approval of his paternity leave, his P45 backdated to 9 February 2023, issued during his paternity leave and his email on 14 February confirming that he had not resigned, and explaining his mental health struggles.[7]He pointed to the ET3 submitted by the respondent in which they had claimed that they had assumed that he had resigned or was absent without leave. He sought to rebut this by maintaining that he kept up regular communications, including informing the respondent of his mental health issues. He argued that assumptions of resignation do not negate protections under section 99 of ERA.[8]He submitted, therefore, that the respondent’s defence lacked any merit and should be struck out.[9]Secondly, he argued that the respondent acted in breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures, contrary to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, which allows Tribunals to adjust awards by up to 25% for failure to comply with the Code.[10]He identified the failure to provide a letter of dismissal, the assumption that he had resigned, the absence of any opportunity to respond and the absence of a right of appeal as being in breach of the Code of Practice.[11]He referred to the letter of 13 February 2023 by Human Resources assuming that he had resigned, his response explaining his mental health struggles, and a further email and response on 16 February 2023.[12]The claimant maintained that the respondent’s procedural failings further weakened their defence, and made it unreasonable to allow the defence to proceed.[13]Thirdly, the claimant argued that there was a lack of viable defence and procedural irregularities. The respondent’s defence, he said, was predicated on an unfounded assumption of his resignation, contradicted by his multiple communications demonstrating that he did not resign, and the respondent ignoring his attempts to clarify and resolve the situation.[14]He criticised the respondent’s failure to participate meaningfully in the ACAS Early Conciliation process, contravening the “spirit of dispute resolution” encouraged by the Tribunal.[15]He summarised this heading as the lack of a viable defence, procedural irregularities and non-compliance with Tribunal rules.[16]Fourthly, the claimant emphasised the impact upon him, referring to his medical records confirming an increased dosage of medication, and relies upon this as a basis for seeking aggravated damages, due to the respondent’s high-handed and oppressive conduct in issuing a backdated P45 during his paternity leave, assuming resignation without basis or proper communication, rescinding his statutory paternity pay and other entitlements and ignoring his attempts to resolve the situation amicably.[17]The claimant therefore sought strike-out of the respondent’s response on the basis that it lacks any reasonable prospect of success. The Respondent’s Response[18]By email dated 3 October 2024, the respondent submitted their opposition to the claimant’s application.[19]They maintained that they were entitled to maintain a defence to these claims, which they say lack merit. Their position is that the claimant’s employment terminated following his failure to return to work after his period of paternity leave.[20]They set out under “Background” a narrative of events surrounding the claimant’s communications with the respondent from the start of January 2023. Essentially, they argue that the claimant was absent from work in February 2023 when he was invited to a welfare meeting by his manager, to which he responded by saying that he was on paternity leave. The respondent submits that the claimant had not previously notified his manager that he wished to take a period of paternity leave, and failed to follow the notification procedures required. However, the respondent agreed to backdate his paternity leave and forwarded the forms for him to complete.[21]The respondent then say that they wrote to the claimant to advise him that they expected him to return to work on 12 February 2023, but that the claimant did not attend on that or the following day. On 13 February 2023, the respondent wrote to the claimant an “AWOL” letter which assumed that he had resigned. The claimant replied to say that had not resigned, but did not explain his position nor did he return to work. A further letter was sent to him on 16 February to say that since he had not returned to work nor explained his position he would be treated as a leaver.[22]The respondent therefore argued that the claimant had failed to demonstrate that the response had no reasonable prospect of success, and that in their view it was the claimant who would struggle to prove his claim.[23]They then went on to argue that the claimant’s pursuit of his claims had become increasingly disruptive and unreasonable. No application was, however, included within their response. The Claimant’s Further Response[24]The claimant then sent a “Supplementary Note on Communication, Paternity Leave and Mental Health Impact” by email dated 11 October 2024.[25]He maintained that he properly notified the respondent of his intention to take paternity leave, having discussed it with Bob Bruce, and it was entered into the respondent’s holiday system as a period of leave. Delays still followed in its acknowledgement by the respondent. The delay caused confusion about his absence, which the respondent later used as grounds for assuming my resignation.[26]A welfare meeting was fixed to take place by telephone on 6 February 2023 with Bob Bruce, but the meeting was cancelled without notice, which left the claimant feeling isolated and uncertain about his employment status.[27]This eroded the claimant’s confidence in Bob Bruce’s ability to fairly address his concerns.[28]The claimant emphasised his mental health struggles during this period, of which he had been open with HR and Mr Bruce. He did not want to lose his job, but was seeking understanding and when he sought accommodations to allow him to return to the workplace. He also reiterated that he wrote to the respondent on 14 February 2023 making clear that he did not want to resign.[29]The claimant then referred to the ongoing impact of these events, in which his condition has been misunderstood by the respondent (and also by the Tribunal process). He also confirmed his intention to appeal against the Tribunal’s recent decision and affirmed that this has not affected his resolve to pursue the matter.
The Relevant Law
[30]Rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds-(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious…”[31]Rule 37(2) provides: “A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[32]The well-known case of Ezsias v North Glamorgan NHS Trust 2007 ICR 1126 CA provides helpful guidance in considering whether to strike out a claim involving whistleblowing allegations, and said that the same approach should be taken in such cases as requires to be taken in discrimination claims, which require an investigation to be conducted into why an employer acted in a particular way. It was stressed that only in an exceptional case will a case be struck out as having no reasonable prospect of success where the central facts are in dispute. Discussion and Decision[33]It is appropriate to consider the claimant’s application in relation to each of the points made.[34]The first point made by the claimant is that he argues that he was automatically unfairly dismissed by the respondent, and that the respondent’s assumption that he had resigned or was absent without leave did not negate the protections of section 99.[35]In my judgment, there are difficulties with the claimant’s assertions here. It is plain that the claimant does not accept that he resigned, and that the respondent does not consider that they dismissed him. As a result, until the termination of the claimant’s employment is determined by the Tribunal, following the hearing of evidence, it is impossible to make any assessment of the strength of the position of either party. The claimant asserts that he was in regular communication with the respondent, but the respondent’s position is that he was not, and that there were issues relating to the type of leave he was actually taking at the time. It is also their position that the claimant was in fact due to end his paternity leave on 12 February 2023.[36]When the claimant says that “assumptions of resignation do not negate protections” under section 99, it is not entirely clear what he means. If he intends this to mean the fact that the respondent assumed that he had resigned does not mean he cannot claim that he was dismissed by the respondent, in fact, as a result of having taken paternity leave, that may be correct. If he means that because they assumed he resigned, they cannot defend a claim of automatically unfair dismissal, it is entirely unclear on what basis he asserts that.[37]It appears to me to be clear that the respondent is disputing the claimant’s version of events leading up to the point where his employment ended, and that until that dispute of fact is resolved following the hearing of all evidence in the case, it is impossible for the Tribunal to conclude that the respondent’s response has no reasonable prospect of success.[38]The claimant’s assertion that the respondent’s defence lacks merit because automatic unfair dismissal under section 99 does not consider the employer’s belief or assumptions is again unclear. It is plain that before any legal analysis may be applied to the circumstances of the ending of the claimant’s employment with the respondent, the Tribunal would require to make findings of fact about what actually did happen. In order to reach a conclusion that the claimant was automatically unfairly dismissed under section 99 as averred, the Tribunal would require to resolve the factual disputes and determine exactly what happened in relation to the ending of his employment. In other words, the Tribunal would require to determine whether the claimant was dismissed by the respondent, and if he was, whether that dismissal was automatically unfair because he was dismissed for a reason relating to paternity leave. Since the respondent disputes both of those statements, it would be premature at this stage, and not in the interests of justice, for the Tribunal to determine that the respondent has no reasonable prospect of persuading the Tribunal that the claimant was not dismissed or not dismissed for an automatically unfair reason.[39]Since there are complex factual and legal questions to be determined by the Tribunal it is my view that to decide those questions, which is the effect of the application, would be unsafe without hearing the full evidence in the case. It is not the case that the respondent has no reasonable prospect of success in their defence at this stage, without hearing evidence.[40]The second point raised by the claimant is that the respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. In my judgment, these points, which are clearly made by the claimant in his application, may go to the question of whether or not the claimant was unfairly dismissed on procedural grounds. However, before determining whether or not the Code of Practice was breached, the Tribunal requires to reach a view on the evidence about whether or not the claimant was dismissed by the respondent. These questions will arise if it is relevant once that determination has been made, but not before (that is, at this stage).[41]The third point is that the respondent’s defence is predicated on an unfounded assumption of the claimant’s resignation. He points to multiple communications demonstrating that he did not resign and the respondent ignoring his attempts to clarify and resolve the situation.[42]This is a very similar point to the first point raised by the claimant, but in support of his assertion on this front, the claimant refers to the respondent’s refusal to participate meaningfully in the ACAS early conciliation scheme. There is no legal wrong identified by the claimant here. It is a matter for any party to determine the extent to which they wish to negotiate in relation to any claim, whether claimant or respondent. The claimant is clearly dissatisfied with the respondent’s efforts to reach an agreement with him, but the ACAS conciliation scheme falls, quite appropriately, outwith the scope of the Tribunal’s jurisdiction. This is a matter which falls between the parties. In any event, while it is clearly a source of frustration, it has no bearing on this application, which relates to whether or not the defence has any reasonable prospect of success. Whether or not a party participates in the ACAS scheme simply has no relevance to the strength or weakness of their pleadings.[43]The claimant also refers to the multiple communications demonstrating that he did not resign. Once again, this goes to the heart of the matter, that is, how his employment came to an end, which can only be determined following a full hearing on the evidence. That evidence of multiple communications by the claimant will clearly be relevant to the Tribunal’s decision on this but without hearing and determining the highly disputed facts about the point, the Tribunal cannot draw a conclusion that the respondent’s position lacks any reasonable prospect of success.[44]The fourth point made by the claimant is that he has suffered severe anxiety and emotional distress caused by his dismissal. This is a question of remedy relating to the claim if it is determined to be successful. The claimant is levelling criticisms, as he is entitled to do, against the respondent for the way in which they treated him, but the context of these complaints is in relation to the claim to the Tribunal. If he is successful in his claim, these matters will require to be considered carefully in order to determine what award should be made to the claimant.[45]Again, the points made by the claimant do not have a bearing on whether or not the respondent’s defence has any reasonable prospect of success.[46]In conclusion, it is clear to me that there is a significant and live dispute between the parties both in relation to the facts of this case as well as to their interpretation in law. To strike out a response would be a draconian result for the respondent, who would then be prevented from presenting their defence to the allegations which they dispute both factually and legally. Albeit that the case of Eszias discussed a case in which whistleblowing is complained of, this case is analogous in that it requires consideration of a complex legal issue, namely automatically unfair dismissal for a reason related to paternity leave under section 99 of ERA. The court in that case made clear that only in an exceptional case could the Tribunal justify striking out a claim (and by extension a response) where the central facts are in dispute.[47]I do not consider this case to belong in this category. The dispute on the facts and the law is live between the parties, and it would not be in the interests of justice to prevent the respondent from presenting their defence without a hearing on the evidence. At this stage, in my judgment, it cannot be said that the respondent’s defence has no reasonable prospect of success. There are too many uncertainties which can only be properly resolved by the evidence being fully ventilated at a final hearing, and it t would be grossly unfair to the respondent to prevent their having the opportunity to maintain their defence to the claims made.[48]Accordingly, it is my judgment that the claimant’s application for strike-out of the respondent’s response is refused.
THE LAW
[49]“(1) The Secretary of State shall make regulations entitling an employee who satisfies specified conditions— (a) as to duration of employment, and b) as to having, or expecting to have, responsibility for a child, to be absent from work on parental leave for the purpose of caring for a child.” S.77 ERA Rights during and after parental leave[50]“(1) Regulations under section 76 shall provide— (a) that an employee who is absent on parental leave is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent, (b) that an employee who is absent on parental leave is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with section 76(1)), and (c) that an employee who is absent on parental leave is entitled, subject to section 78(1), to return from leave to a job of such kind as the regulations may specify.” S. 80 ERA Complaint to employment tribunal.[51]“(1) An employee may present a complaint to an Employment Tribunal that his employer— (a) has unreasonably postponed a period of parental leave requested by the employee, or (b) has prevented or attempted to prevent the employee from taking parental leave.”[52]The Tribunal must consider whether the claimant was denied the opportunity to exercise his right to requested parental leave and the right to return to a position of equivalence. S.57A ERA – time off for dependents[53]“1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary— (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted, (b) to make arrangements for the provision of care for a dependant who is ill or injured, (c) in consequence of the death of a dependant, (d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or (e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.”[54]The issue is whether the claimant was subject to a disciplinary process due to taking time off for a dependent, for a reason set out in the statute. The Tribunal must consider the reason for the disciplinary and the knowledge of the respondent at the time. Issues as to the reasonableness and necessity of the time off are taken into consideration. Reg 14 Working Time Regulations 1998 Compensation related to entitlement to leave[55]“(1) Paragraphs (1) to (4) of this regulation apply where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under regulations 13(1) and 13A(1) differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).”[56]This provision applies where there is termination of the contract occurs and the claimant has holiday which has accrued as owed, but untaken, he is entitled to payment in lieu of that holiday.[57]There is no provision in the regulation which allows for the employee to take more holiday than he has accrued. Reg 15 Working Time Regulations 1998 Dates on which leave is taken[58]“15.— (1) A worker may take leave to which he is entitled under regulations 13, 13A and 15B on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2). (2) A worker’s employer may require the worker— (a) to take leave to which the worker is entitled under regulation 13, 13A or 15]; or (b) not to take such leave on particular days, by giving notice to the worker in accordance with paragraph (3). (3) A notice under paragraph (1) or (2)— (a) may relate to all or part of the leave to which a worker is entitled in a leave year; (b) shall specify the days on which leave is or (as the case may be) is not to be taken and, where the leave on a particular day is to be in respect of only part of the day, its duration; and (c) shall be given to the employer or, as the case may be, the worker before the relevant date. (4) The relevant date, for the purposes of paragraph (3), is the date— (a) in the case of a notice under paragraph (1) or (2)(a), twice as many days in advance of the earliest day specified in the notice as the number of days or part-days to which the notice relates, and (b) in the case of a notice under paragraph (2)(b), as many days in advance of the earliest day so specified as the number of days or part-days to which the notice relates.”[59]The issue for the Tribunal is whether the reason for denying the claimant’s holiday request was valid and within the bounds of the Regulations. S.1 ERA Statement of initial employment particulars.[60]“(1) Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.”[61]The details of which terms must be provided are set out in s.1. A failure to do so at the time the claim is issued can result in compensation of up to 4 weeks’ pay being awarded.[62]The respondent admitted that the claimant was dismissed but stated that the reason for dismissal was due to the claimant being absent without leave.[63]The claimant asserted that his dismissal was related to having taken paternity leave and that the respondent had backdated his dismissal to the time during his paternity leave.[64]The Tribunal took account of the Statutory Paternity Pay form which indicated the dates of paternity leave; it stated 29 January 2023 for two weeks, ie up to and including 11 February 2023. The claimant was therefore due to return to work on Sunday 12 February. He failed to do so and failed to notify his manager of his absence.[65]On 13 February Mr Robertson sent the AWOL letter asking the claimant to contact them by close of business on 14 February, or he would be taken to have resigned. The letter indicated that they assumed he had resigned from the date of the last shift attended (which would have been 9 February if he was not on paternity leave).[66]The Tribunal accepted that on 14 February and within the deadline set by Mr Robertson, the claimant sent an email, indicating that he was not resigning and that he was not on best terms with his manager, experiencing anxiety and a mental health problem, but indicating his desire to return to work. The reply to this from the respondent was that Mr Bruce would contact the claimant. This was the person the claimant had said he was having difficulty with. There was no evidence before the Tribunal that indicated that Mr Bruce tried to make such a call to the claimant.[67]Ms Burnett was contacted, as a more senior HR person. She tried to call the claimant on 15 April and 16 April. The Tribunal did not accept that Ms Burnett made numerous attempts each day to call the claimant. Her calls were closely timed, showing that she tried two or three times in the space of three minutes. The Tribunal took these to amount to one attempt each day.[68]On 16 February at 13.43 Ms Burnett wrote to the claimant to say that she and Mr Bruce had tried to call him. She told the claimant that he was now presumed to have resigned and he will receive his P45 and final pay, thereby dismissing him.[69]Shortly after this Ms Burnett indicated to payroll that she had taken the decision to process the claimant as a leaver on the basis that she had not had contact with him.[70]However, at 15.54 the claimant wrote to Ms Burnett saying that he would like to meet with HR about his problems.[71]Ms Burnett’s final email at 16.08 said that both she and Mr Bruce had tried to contact him. The Tribunal found this to be untrue of Mr Bruce and limited on the part of Ms Burnett. She also said that the claimant had cancelled a meeting with Mr Bruce, this too was untrue. Finally, she told the claimant to contact Mr Bruce.[72]There was contact between Mr Bruce and the claimant that day, where it was suggested that they meet that evening at the depot, but this did not[73]The Tribunal accepted that the confusion around the paternity leave/holiday position made the claimant lose trust in Mr Bruce. However, the claimant failed to engage in discussion around his time off and the nature of that time.[74]The claimant was also aware that he had had warning about time off and was worried that further absence would lead to further disciplinary action/dismissal.[75]Whilst on paternity leave on 6 February Mr Bruce had asked the claimant to attend for a welfare meeting. The claimant was concerned about this, as he thought it would mark the start of a disciplinary action and so had not engaged.[76]The Tribunal found that neither of these concerns were linked to the claimant taking paternity leave. They arose from his illness and his use of a significant amount of his annual holiday entitlement within the first month of the holiday year.[77]The Tribunal considered the fact that the respondent’s letter and P45 state that the claimant’s last shift was 9 February. Whilst this was during the claimant’s paternity leave, it did not mean that his dismissal was due to a reason connected to paternity leave. The Tribunal were satisfied that the reason for dismissal was because the claimant didn’t attend work after the end of his paternity leave.[78]The Tribunal concluded that the claim for automatically unfair dismissal was therefore dismissed. Notice pay[79]The claimant was dismissed for his failure to attend work. The respondent failed to engage in a disciplinary process with the claimant, but instead summarily dismissed him on 16 February 2023.[80]The Tribunal saw no evidence of a disciplinary process in relation to the non- attendance. The letter merely stated that the claimant had been treated as a leaver, unless he could assert otherwise. Even when the claimant sought to do so, this was not accepted. This did not amount to an ACAS compliant process.[81]The respondent failed to prove to the Tribunal that the claimant would have been dismissed for gross misconduct in any event. There was no evidence on which to base such a submission.[82]The Tribunal noted that the contract stated that the respondent should pay notice. The Tribunal concluded that the failure to pay such notice amounted to a breach of contract. The claimant was entitled to one week of gross wages, £484.92. Unlawful deduction[83]In relation to the Team Leader pay – the Tribunal found that the claimant was promoted to this position on 10 May 2021. The pay rise associated with this post was conditional upon the employee learning three other rounds. The claimant did not do so, due to the respondent’s requests for him to carry out other work. The claimant did however carry out the other team leader duties. When the claimant complained that he was not being paid team leader rates, this was considered by the respondent, who rectified the position, even though the claimant had not met the criteria.[84]The claimant asserted that he was entitled to pay rises after 6 and 12 weeks. There is some evidence in the bundle to show that pay rises did[85]The claimant did not satisfy the Tribunal that he was entitled to pay as a team leader from 27 May 2021. Nor did he show that this was not paid to him. The Tribunal therefore did not find that the claimant proved that money was due to him, or that he was not paid any relevant sum.[86]The Tribunal also considered that this claim was issued beyond the time limit. The claim ought to have been brought within 3 months of the date of the deduction. The claimant did not provide any evidence or explanation as to why it was not reasonably practicable for him to have brought the claim to the Tribunal at that time. The Tribunal therefore had no jurisdiction to hear this claim.[87]The claimant said that the respondent should not have deducted the overused holiday from his final pay. However, the claimant admitted that he had taken 8 days of holiday in January 2023, when in fact he had only accrued 3 days by the time of his dismissal. The claimant’s contract of employment at clause 5.8 allows the respondent to recoup any overtaken holiday per day from final salary.[88]The respondent’s position was that they did not deduct as much as they should have done as the claimant owed them more, but they worked it back to be a figure of nil. The Tribunal accept that the deduction should have been more, but that the respondent has not made an employer’s breach of contract claim.[89]The Tribunal concluded that this was a lawful deduction in accordance with the signed contract and the allegation is dismissed. Exercise of paternity leave[90]The Tribunal considered the evidence of both the claimant and Mr Bruce with regard to the conversation about the use of paternity leave or holiday. The Tribunal concluded that the managers who were responsible for administering the relevant policies seemed not to have been trained at the time or have local access to the policies.[91]The Tribunal were satisfied that due to a conversation with Mr Bruce, the claimant had not been informed that he needed to provide certain information and therefore had not complied with the requirements to notify of intended paternity leave in writing and by providing a MATB1, as was required by the respondent. The Tribunal were also clear that Mr Bruce did not inform HR about his agreement with the claimant in November 2022. However, the Tribunal recognised that the respondent did not prevent the claimant from taking paternity leave, even though he had not met the criteria.[92]The Tribunal took into account the fact that when HR found out about the birth of the baby, they allowed the forms to be completed retrospectively and allowed the claimant to take paternity leave, as requested.[93]The Tribunal accepted that the claimant acknowledged that he took two weeks of paternity leave in the period 29 January to 11 February 2023.[94]The Tribunal therefore found as a fact that the claimant did take paternity and was not prevented from doing so.[95]This claim therefore was dismissed. Discipline for taking time off for dependents and/or compassionate leave[96]The claimant was absent on 2,3,9,11 August 2021. He took this time off due to the hospitalisation of his partner and the terminal illness of his grandfather. They were authorised by Mr Bruce as compassionate leave.[97]The claimant had a return to work meeting on 15 August 2021 at which it was noted that there was no cause for concern and no follow up required. It was not until March 2022 that the claimant was called to an absence management review meeting which listed as one of the occasions being considered, the absence up to 15 August 2021 for compassionate leave. This meeting had the potential to provide the claimant with a sanction and therefore was correctly interpreted by the claimant to be a form of disciplinary procedure.[98]Whilst no further action was taken as a result of this review meeting, the Tribunal accepted the claimant’s evidence was that he did not think he should have been taken to this meeting at all. Further, that it made him feel that he was being punished for his absence.[99]The Tribunal also noted that the respondent’s witnesses stated that they did not consider that it was appropriate to include in absence management any absence due to dependent or compassionate leave. The Tribunal therefore concluded that taking the claimant to an absence management meeting was a detriment to the claimant, who felt anxious and felt that he was being punished for his absence.[100]However, the Tribunal also considered the time limit for bringing such a claim. This claim ought to have been brought within 3 months of the actions taken by the respondent. The claimant provided no evidence of why it was not reasonably practicable for him to have brought the claim within the time limit. The Tribunal could not be satisfied that it had not been reasonably practicable to have brought the claim and therefore concluded that they had no jurisdiction to consider it. Did the respondent fail to allow the claimant compassionate leave in relation to the death of his grandfather and his partner’s miscarriage, contrary to s.57A Employment Rights Act 1996?[101]The evidence of all parties was that the claimant was allowed to take time off for these two events. There was no evidence to suggest that the claimant was in fact prevented from taking time off. The Tribunal found that this allegation was not proved and therefore dismissed.[102]The Tribunal noted in any event that s.57A would cover the right to time off for the claimant’s partner’s miscarriage, where he was dealing with an ‘emergency situation’. However, the claimant’s relationship with his grandfather is not covered by s.57A. The Tribunal noted that he was allowed the time off as compassionate leave, in any event. Therefore, there was no breach of s.57A.[103]In relation to absence management review meeting held in August 2022, whilst it was contained in the ET1, it was not within the list of issues and therefore the Tribunal provided a view on this for completeness only. The Tribunal noted that the invitation to this meeting contained reference to 2 occasions of dependent’s leave. The respondent’s witnesses admitted that it was inappropriate to convene an absence review meeting on that basis. The outcome letter dated 16 August said that the claimant was given a written warning to remain on his file for 6 months.[104]The Tribunal were concerned to see that once again the respondent’s processes included reliance on absences which ought not to have been the subject of a management process. However, this claim was also brought out of time, and therefore the Tribunal could not have found in favour of the claimant, in any event. Did the respondent reject the claimant’s holiday request in January 2023 and is this a breach of Regulation 15 Working Time Regulations 1998?[105]The Tribunal noted that the claimant’s absences on 1,2,4,5,8,9,11,12 January 2023 were all accommodated. When the claimant requested holiday on 15,16,18, 19 January, this was declined.[106]The Tribunal accepted that the respondent did reject the holiday request of the claimant who wanted to take holiday rather than paternity or sick leave, in order to maintain full pay.[107]The Tribunal noted that in November 2022 when the claimant and Mr Bruce had discussed his paternity leave, Mr Bruce had suggested that paternity leave could be covered as holiday in order to maintain the claimant’s full pay. This was an agreement in principle, as no specific dates were discussed or agreed. However, due to the fact that the claimant took 8 days of holiday in January prior to his paternity leave, in order to avoid being classed as having further sickness absence, by the time the claimant came to require paternity leave, he had already used more holiday than he had accrued.[108]The Tribunal were satisfied this lack of accrued holiday was the reason why his holiday request was denied. This, however, was not clear to the claimant at the time.[109]The Tribunal considered whether this amounted to breach of the Working Time Regulations. The Tribunal accepted that the claimant was supposed to give notice to take holiday and the respondent was supposed to give notice to refuse it. Neither party complied with the statutory minimum requirement, nor with the contractual notice period.[110]The Tribunal found on balance that it was reasonable for the respondent to refuse further holiday where the claimant had exceeded his accrued holiday at that time. Mr Bruce had not explained to the claimant in detail that he needed to ensure that he had sufficient holiday entitlement to take his paternity leave as holiday. Nor did he warn the claimant when he asked for holiday to cover his sickness period, that this would leave him with an insufficient amount of holiday to take as paternity leave. However, that failing on the part of Mr Bruce does not amount to a breach of the Working Time Regulations. The Tribunal therefore would have dismissed this allegation.[111]The Tribunal also considered that this allegation was out of time. As the leave would have started on 15 January 2023, taking into account the EC extension (3 days), the claim ought to have been brought by 17 April. It was not brought until 10 May. The claimant provided no explanation of why it was not reasonably practicable to have brought the claim in time and therefore the Tribunal concluded that it had no jurisdiction to hear the allegation. Did the respondent fail to pay the claimant for accrued, but untaken holiday at the time of his dismissal, contrary to Regulation 14 Working Time Regulations 1998?[112]The Tribunal found that the claimant had taken more holiday than he had accrued at the time of his dismissal and therefore no holiday pay was owed to him. Did the respondent provide to the claimant a notice under s.1 Employment Rights Act 1996?[113]The claimant showed the Tribunal a contract which was signed by him. This includes all the relevant information required under s1. The Tribunal concluded that this claim therefore fails.[114]The Tribunal also noted that the ET1 says he was asked to sign a document which was a description for the job and pay as a team leader. By the claimant’s own admission this document did exist and the claimant did sign it. The Tribunal noted that neither party had provided a copy to the Tribunal. It was concluded that as the rest of the claimant’s terms remained unaltered, there would be no need to re-issue the whole contract.[115]The Tribunal were satisfied that the claimant’s own evidence showed that he did receive the variation and that he accepted it. The Tribunal concluded there was no breach of s.1 ERA. Approved by: