Case No 8001010/2025Venue GlasgowHearing 17 October 2025
Between
Mr D MorganClaimantRoyal Mail Group LimitedRespondent
Before
Employment Judge WalkerMr D Cormack (instructed by Solicitor) for respondentDate 21 November 2025
JUDGMENT
The judgment of the Tribunal is that the claimant was a disabled person under the Equality Act 2010 from 4 November 2024 until 5 March 2025. ORDERS OF THE EMPLOYMENT TRIBUNAL[1]The claimant’s application to include a claim for failure to make reasonable adjustments, as set out in section 11 of his email of 2 September 2025, is granted.[2]The respondent will have until 29 October 2025 to provide an amended ET3 to the Tribunal, copied to the claimant.[3]Paragraph 7 of the Tribunal order of 26 June 2025 is varied, by agreement, to 29 October 2025.
REASONS
Introduction
[1]Mr Morgan has brought claims for arrears of pay and holiday pay, unfair dismissal for asserting a statutory right, victimisation and disability discrimination[2]At a case management preliminary hearing on 26 June 2025, Judge Robison identified the disability discrimination claims were a claim of direct discrimination under section 13 of the Equality Act 201 ( the Equality Act) and a claim of discrimination arising from disability under section 15, specifically that the claimant suffered unfavourable treatment because the respondent failed to follow procedures and by being dismissed. The “something arising” was being off sick with anxiety due to the respondent’s failure to pay wages.[3]Judge Robison confirmed in her note that the impairments relied on were stress, anxiety and depression. A preliminary hearing was listed to consider “disability status” and a final hearing listed for 5-7 November.[4]Relevant for this hearing, Judge Robison ordered that by 7 August 2025, the claimant should send to the respondent and the Tribunal: medical records/and or a medical report and a disability impact statement, setting out how his impairment impacts on his day to day activities.[5]No medical records or report were provided in compliance with that order.[6]A disability impact statement was presented on 15 September 2025.
Evidence
[7]A letter was provided shortly before the hearing by email to the tribunal and the respondent. This was from the claimant’s GP and dated from 16 July 2018. It confirmed that he was diagnosed in January 2017 with depression and has been attending his GP, psychiatrist and community psychiatric nurse. It also confirms he was at that time on antidepressant (escitalopram) and had previously been prescribed other medication.[8]Mr Cormack did not object to that document being added to the bundle. However, when the claimant arrived at the hearing, he had additional paper documents with him that appeared to be some kind of medical documents. I adjourned to allow these documents to be shared with Mr Cormack and for him to take instructions. When the hearing resumed, Mr Cormack objected to the documents being included as he had not been able to take proper instructions. I was conscious that the claimant has indicated he has a difficulty complying with timelines and was concerned he may be disadvantaged if the documents were not before me. Equally, the respondent had not had proper notice of them. I suggested adjourning today’s hearing to the final hearing for the issue of disability to be determined there. Ultimately, Mr Morgan indicated he would prefer to continue today and he didn’t think the documents added anything.[9]I heard evidence from Mr Morgan. I took him through his disability impact statement and asked some additional questions. I explained that I was considering whether he was disabled at the relevant time. I could not take into account information about his condition after that time although the disability impact statement referenced his current condition. Mr Cormack then crossexamined him. Evidence was led for the respondent from Mr Gary Maguire, who had been the claimant’s line manager and who had daily contact with him. The respondent provided a bundle of documents and parties had an opportunity to make submissions. Findings in fact I make the following findings in fact:[11]The claimant has suffered from mental health since childhood.[12]He was diagnosed with depression and anxiety in 2017 and was managed for a period of time by a psychiatrist and a mental health team as a well as by his GP.[13]He was admitted to a psychiatric ward in 2018 for 5 weeks following a period of self-harming and suicide attempts.[14]He was prescribed antidepressants in 2018 and continued to take these until 2020. He stopped taking these during the pandemic as he didn’t feel they were making a difference. He has not taken medication since then.[15]His symptoms have continued from that period to the relevant period. These include:• A lack of interest in eating, often needing to be reminded to eat. He lives on microwave meals and sandwiches.• Difficulty with maintaining personal hygiene and washing clothes, sometimes just buying a new shirt instead of washing one. He had 40 polo shirts that he wore when working for the respondent. He would often spend the day in his dressing gown, needing prompting to shower.• Since childhood, he has had difficulty in socialising. He does not have friends and, outside of school or work, spends most of his time at home in his bedroom. Since COVID he has had some limited social engagement online.• Over the last 4 years he has suffered agoraphobic symptoms. He is unable to use public transport due to resulting panic attacks and can only shop in a local shop to which he drives by car. Sometimes he sits in the car in the dark, is unable to go into the shop and then drives home.[16]When working, he is able to mask his symptoms. During his time with the respondent, he worked as a mail sorter and primarily as a mail porter. He worked night shifts. He drove to the facility and was always on time. Although he was part of a team, he primarily worked on his own loading and unloading vehicles and receiving mail. He was considered an excellent worker who followed instructions to the letter and was also proactive in anticipating what needed to be done. He had to be reminded to take breaks. worked almost every day as overtime was available and was never absent. However, when he returned home, he spent his non-working time in his room and did not socialise. He continued to lack interest in food , to struggle with personal hygiene and to experience agoraphobic symptoms.[17]His self-harming has left him with scars on both arms so he wears long sleeves. Observations on the evidence[18]I found the claimant’s evidence to be honest and compelling. Although he had not provided medical information, beyond a historic note from his GP, he was candid that he had not seen a doctor recently and that he had stopped taking medication in 2020 as it didn’t seem to help his symptoms. He explained that he was able to mask his symptoms while at work and that the routine of a job was helpful for his condition. His evidence was almost entirely about how his condition impacted on him in his personal life. These were not matters that a doctor, or indeed his employer, were able to comment on or dispute.[19]Mr Maguire also gave an honest account. From his perspective there were “no issues” and he described the claimant as the “best worker he had come across”. However, he could not comment on the effects experienced by the claimant outside work. He did confirm that the claimant needed to be reminded to take breaks.[20]Mr Cormack drew my attention to the fact that the claimant had not mentioned his disability in various of the respondent’s documents including his CV. I do not consider this is significant. It is not surprising that a employee, or prospective employee, does not bring his condition to an employer’s attention. This is especially so when the person is able to mask his condition and function effectively in the workplace.[21]In his evidence, and in his disability impact statement, the claimant said that he struggled to plan and organise himself and that he got mixed up with dates and times. That did not accord with the evidence from Mr Maguire that he was able to carry out instructions and attended work every day and was punctual. I do not find that that effect has been established in this hearing although I do not suggest that the claimant was not honest about that.
Relevant law
[22]Under the Equality Act, section 6, a person has a disability if that person has “a physical or mental impairment” which has a “substantial and long-term adverse effect” on their ability to carry out “normal day-to-day activities”’ — S.6(1). The burden of proof is on the claimant to show that he or she satisfies this definition.[23]A “substantial” effect means more than minor or trivial. Unless an effect is minor or trivial, it is substantial.[24]Tribunals should focus on what the person cannot do ( or can only do with difficulty) rather than what they can do.[25]Schedule 1 Paragraph 2(1) provides that the effect is “long-term” if(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected.[26]Schedule 1 para 2(2) provides that if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. “Likely to recur” in this context means it “could well happen”.[27]The Tribunal, when carrying out its assessment, must disregard events taking place after the alleged discriminatory act ( McDougall v Richmond Adult Community College 2008 ICR 431.) and must ask what was the likelihood of the substantial adverse effect recurring at the time of the alleged discrimination. Discussion and decision[28]I have considered the question of disability between 4 November 2024, when the claimant started work for the respondent in Prestwick until 5 March 2025, the latest possible date of dismissal.[29]The EAT gave guidance in Goodwin v Patent Office [1999] IRLR 4 as to the correct approach. Tribunals should look at the evidence by reference to four different questions:(i) did the claimant have a mental and/or physical impairment?(ii) did the impairment affect the claimant’s ability to carry out normal dayto-day activities?(iii) was the adverse effect substantial? and(iv) was the adverse effect long term?[30]I will structure my decision accordingly. Did the claimant have a mental impairment at the relevant time?[31]Mr Cormack submitted that the claimant had not established he had an impairment. He does not dispute that the claimant has scars from historic selfharm. However, the respondent relies on the fact that there is no medical evidence for the relevant time. The respondent’s documents regarding fitness for work said he was fit for work and did not suggest further assessment was required. Mr Cormack suggested that any stress and anxiety was a reaction to events as he perceived them at work.[32]I am not persuaded by these submissions. The claimant’s evidence was convincing. While medical evidence may be helpful, it is not an absolute requirement and the claimant’s evidence was of a condition that had existed for many years. He gave cogent evidence that he had, in the past, been diagnosed with the condition and had been admitted to a psychiatric ward. He had provided photographs of his scars form self-harm that were not disputed. His clear evidence was that the symptoms he described were ongoing throughout the whole period. The symptoms may have been aggravated by the claimant’s perception of what had happened at work, but I am satisfied that there was an underlying cause of depression and anxiety.[33]I do not consider that the claimant suffers from an impairment of “stress” although this may have aggravated his symptoms from time to time. .[34]I conclude that the claimant , at the relevant time had a mental impairment of anxiety and depression . Did that impairment affect the claimant’s ability to carry out normal day-to day activities?[35]The respondent relied on evidence from Mr Maguire that the claimant had been an exceptionally good worker. He was able to follow instructions, arrived on time and did not have a day off. However, the focus is not on what the claimant could do, but what he could not do. The claimant’s evidence was that he had been unable to socialise, struggled with personal hygiene and washing clothes. He was not able to cook, beyond a microwave meal or sandwiches. He was unable to use public transport. Although he could mask his condition at work, it was relevant that he stressed that his job was routine and largely solitary. He was able to drive there. Mr Maguire confirmed that although part of a team, the claimant’s duties were largely performed on his own. The issues of socialising, hygiene, cooking and transport continued outside work.[36]I consider that the depression and anxiety did affect the claimant’s ability to carry out these day-to day activities. Was the adverse effect substantial?[37]Again, the respondent’s position was that there was insufficient evidence of this. However, having accepted the claimant’s evidence, I consider it was substantial at the relevant time in respect of personal hygiene, shopping, using public transport and socialising. I do not consider that a substantial adverse effect has been established in relation to eating. Living on a diet of microwave meals and sandwiches is a limitation that does not go beyond the normal difference in ability that may exist among people. Was the adverse effect long term?[38]It is clear that the claimant has had the impairment of anxiety and depression from an early age. He gave evidence of this starting when he was 11. Although the severity of the symptoms has varied through the period, even at its best, he has been unable to socialise and has had issues with personal hygiene. Over the last 4 years, his ability to go to shops and use public transport has got worse. I am satisfied that the substantial adverse effects identified in these respects have lasted for more than 12 months at the relevant time.[39]I therefore conclude that the claimant was disabled at the relevant time. Application to amend[40]Mr Cormack drew my attention to an outstanding application to amend made by the claimant. This is contained in an email from the claimant to the Tribunal on 2 September 2025. Section 11 of that email sets out a claim of failure to make reasonable adjustments. In correspondence, the Tribunal had indicated had that this application would be considered at this preliminary hearing was originally listed for 18 September 2025. Unfortunately, that hearing had to be postponed and was relisted to today’s date. We are therefore now much closer to the final hearing dates than anticipated.[41]The respondent objects to the application on the grounds that it was made too late, with the hearing due to start on 5 November, it was out of time and the respondent would be prejudiced as it would need to amend its response and to bring an additional witness.[42]Mr Morgan disputed that a different witness would be required but I accepted the respondent’s position on that which was that it was HR that would deal with such adjustments. Mr Morgan drew my attention to paragraphs 16 and 17 of the paper apart to his ET1 that he said contained the reasonable adjustments claim he wished to make. Having reviewed that document, I agreed that a claim of failure to make reasonable adjustments was set out there. This application is therefore providing further particulars of that claim and not really an application to amend to add a new complaint. I appreciate this specific complaint was not set out in the case management note from the hearing on 26 June 2025. However, the claimant did not withdraw it. He is a vulnerable party litigant and he explained that he had not understood that the reasonable adjustment claim had not been included. He will be prejudiced if he is unable to bring the complaint that he had intended to make. I consider the balance of prejudice favours granting the application.[43]I ordered that the respondent would have time to amend its ET3 to respond to the amended claim. The date on which it must send a paper copy of the bundle to the claimant will also be delayed. Both should be done by 29 October 2025. The claimant agreed he would not be disadvantaged by this later date.[44]Finally, I apologised that the tribunal administration had overlooked that the respondent had agreed to judicial mediation. I will refer the matter to the VicePresident so see whether this can be arranged before the final hearing but there is no guarantee that this will be possible.[1]The claimant has brought the following complaints relating to his employment with the respondent and its termination as follows:-a. Automatic unfair dismissal under s104 of the Employment Rights Act 1996.b. An allegation that his dismissal amounted to direct disability discrimination under s13 of the Equality Act 2010 and discrimination arising from disability under s15 of the Act.c. He also alleges that the respondent failed to follow their own dismissal procedures and that this amounts to both discrimination arising from disability under s15 of the Act and victimisation under s27 of the Act.d. A claim for an alleged failure to comply with the duty to make reasonable adjustments in respect of the date on which his permanent contract with the respondent commenced.e. Wrongful dismissal in respect of an alleged failure to pay notice.f. Unlawful deduction of wages.[2]The respondent resists the claims. One of their primary defences in respect of the claims relating to the termination of the claimant’s employment was that they denied the claimant had been dismissed. However, this point was conceded during the respondent’s submissions and it was accepted that the claimant was dismissed by the respondent on 10 March 2025. Preliminary issues[3]At the outset of the hearing, there was an outstanding application for one of the respondent’s witnesses to give evidence remotely by way of Cloud Video Platform. This witness was a late addition, being called to give evidence relevant to the reasonable adjustments claim which had been added by way of amendment granted on 17 October 2025. The claimant did not oppose this and the Tribunal granted the application for the witness to attend remotely.[4]There was also an issue regarding an email which appears in the file of productions at pp110-111. It is an email from ACAS to the respondent informing them that the claimant had commenced Early Conciliation which had been redacted to remove the detail of what the claimant had said to ACAS. This was done to comply with s18(7) of the Employment Tribunals Act 1996. Mr Cormack raised the question of whether the claimant would consent to an unredacted copy being produced.[5]The claimant would not consent and also objected to the email being included as he did not see the relevance of it. However, it is commencing Early Conciliation on which the claimant relies as his protected act for the purposes of his victimisation claim and the respondent argues that they were not aware of this until after the alleged detriments were said to have been done. The Tribunal considered that this email is clearly relevant evidence if it demonstrates when the respondent was made aware of the claimant’s Early Conciliation.[6]For this reason, the Tribunal permitted the redacted email to be lodged. However, if the claimant was not willing to consent to the detail of his complaint being disclosed then s18(7) of the Employment Tribunals Act means that this information is not admissible and should be redacted. Evidence[7]The Tribunal heard evidence from the following witnesses:-a. The claimant.b. John Hannan (JH) – lead commercial operations manager at the respondent’s Kilmarnock depot.c. David Reid (DR) – the claimant’s line manager.d. Rose Walker (RW) – a recruitment consultant who dealt with the claimant’s recruitment.[8]RW gave evidence remotely by way of Cloud Video Platform. All other witnesses gave evidence in person.[9]There was an agreed file of documents prepared by the parties running to 230 pages. A reference to a page number below is a reference to a page in that file.[10]This was not a case where there was a significant dispute of fact. The sequence of events was, for the most part, a matter of agreement between the parties. This was not a case which turned on the credibility or reliability of witnesses.[11]The only real issue of dispute between the parties related to telephone calls which the respondent’s witnesses (JH and DR) said they made to the claimant in December 2024 and January 2025. The claimant denied receiving any calls. This was not a case where there was a misunderstanding; the respondent’s evidence was that calls were made, not answered and voicemails were left for the claimant whereas the claimant asserted that no missed calls were received by him and no voicemails were left for him.[12]The respondent produced screenshots of calls made to the claimant at pp99, 100, 102, 103 and 104. These show the time and date of the calls as well as the telephone number called (which the claimant accepted was his telephone number). In contrast, the claimant, other than denying receiving these calls, produced no evidence to support his position. For example, he did not produce the call log from his own mobile phone to show that he had no missed calls on the dates and time in question.[13]The Tribunal prefers the evidence of the respondent’s witnesses in relation to this matter. They have produced contemporaneous evidence which corroborates the oral evidence given by their witnesses whilst the claimant has not.[14]There is a similar dispute about letters which JH said he sent around the same time; the claimant denies receiving these. JH did not retain copies of these letters so there is not the same corroborating evidence as there is for the phone calls. However, the Tribunal considers that sending letters would be consistent with the fact that JH and DR were trying to make contact with the claimant as evidenced by the call logs. For these reasons, the Tribunal accepts the evidence of JH that these letters were sent. Findings in fact[15]The Tribunal made the following relevant findings in fact.[16]The claimant has had issues with his mental health for a prolonged period. The details of this are set out in a judgment sent to the parties on 20 October 2025 in which the claimant was found to be disabled for the purposes of the Equality Act. The present Tribunal does not propose to set out those findings in detail and the previous judgment is referred to for its terms.[17]The claimant commenced employment with the respondent on a seasonal contract on 4 November 2024. He was based at Prestwick Airport and worked on a night shift.[18]During his employment at Prestwick, the claimant was put forward by a colleague for a permanent job with the respondent under its “refer a friend scheme”.[19]The recruitment exercise being carried out at this time was being done by Reed Recruitment on behalf of the respondent. Reed uses an online application system called “SuccessFactors”. Only employees of Reed have access to this system and managers at the respondent cannot access it.[20]The claimant completed an online application for the permanent contract (p61) and as part of this he answered yes to the question “Do you have a disability?”.[21]The permanent role to which the claimant was being recruited was based at the respondent’s Kilmarnock delivery office and was a day shift role.[22]On 6 December 2024, the claimant was interviewed by JH, the lead commercial operations manager at Kilmarnock. JH completed an interview form (pp64-66). The form records (p66) that the claimant explained that his current contract ended on 23 December 2024 and that the claimant had asked to start the permanent contract on 6 January 2025. JH had no issue with this and his position was recorded on the form.[23]The claimant did not inform JH during the interview that he had any medical or health conditions. In particular, he did not suggest that the reason why he wanted a later start date was connected to any health condition.[24]The claimant’s reason for asking for this start date was to allow time for him to adjust from being on night shift to being on day shift.[25]The claimant was successful at interview and, on 9 December 2024, received an email (pp67-68) from RW, an employee of Reid Recruitment, confirming this. The email stated that his start date was to be 23 December 2024.[26]On 9 December 2024, RW also had a phone call with the claimant to confirm he had been successful. In that call, she asked about his notice period from his current role. She also asked if he had any medical conditions or required any reasonable adjustments. She recorded on SuccessFactors (p61) that the claimant’s answer to both questions as “no”.[27]The reason for 23 December 2024 being given as the start date was that the respondent had required that all those being recruited as part of the same recruitment exercise as the claimant had to start employment on or before 23 December 2024. Reed did not have any discretion to start someone after this date as part of that recruitment process.[28]On 12 and 13 December 2024, the claimant had an email exchange with another employee of Reed, Olibisi Arewa (pp69-70). It was explained to the claimant that he could not have two positions with the respondent at the same time and so his seasonal contract had to end before his permanent contract could begin. The exchange concluded with an arrangement that the claimant’s seasonal contract would end on 22 December and his permanent contract would begin on 23 December 2024.[29]At no point during any of the discussions or correspondence with anyone from Reed Recruitment did the claimant say that the start date for his permanent contract caused him any difficulties because of, or connected to, his disability.[30]The claimant commenced his employment on 23 December 2024. On that date, he completed an online induction. As part of that, new employees complete a health questionnaire. This is a confidential process and the questionnaire is not seen by the respondent (p196). It is reviewed by an occupational health adviser and a certificate is issued to the respondent. This can confirm that the employee is fit to do the role, is fit with adjustments, is not fit or that further information is required.[31]The claimant disclosed his mental health condition and this initially resulted in a need for further information (p96). An assessment from one of the OH advisers was arranged for 2 January 2025 and the outcome of that assessment was that the claimant was fit for the role (p101). No further information about the claimant’s health conditions was set out in either of the certificates issued in respect of the claimant.[32]The claimant’s first day of work at Kilmarnock was 24 December 2024 and he attended the depot where he was assigned to DR’s team. DR manages all new starts and the claimant was sent out to shadow a more experienced postal worker on that day.[33]The next two days were Christmas and Boxing Day. The claimant returned to the depot on 27 December 2024 and was again sent out to shadow a more experienced employee.[34]The claimant had expected to be paid his final wage from his seasonal role on 27 December but nothing was received on that date. He asked DR about this when he returned to the depot after being out with the other worker. DR did not have any knowledge about this as the payment related to a different depot and contract.[35]DR took the claimant to the office and rang payroll for the claimant to query why the claimant had not been paid. Payroll could not assist; they had a payment due to the claimant on 31 December 2024 but this did not match the sum which the claimant believed was due. Given that the payment related to a seasonal contract, the claimant was advised that he should send an email to a mailbox that was set up for seasonal contract queries.[36]DR told the claimant that he could go into the canteen to draft this email. However, the claimant did not have all the time and dates of the work he had done under the seasonal contract to hand; it was at home on his computer. DR allowed the claimant to leave early to go home and get the information he needed. The claimant sent the email to the relevant email address that evening.[37]The claimant never received a reply to this email and he did not chase this up with anyone at the respondent. However, it is not in dispute that all the sums owed to the claimant in terms of wages had been paid by the time of the final hearing.[38]The claimant found the situation with his pay stressful and he did not sleep that night. On 28 December 2024, he did not feel fit to go to work and emailed DR at 8.24 am to let him know (p98). The email states that he would not be able to come into work due to significant levels of stress and anxiety but does not explain what has caused this. The email goes on to state this was predicted to last for 7 days but that if the level of stress and anxiety decreases before that time then the claimant may be able to return sooner.[39]This email is the last contact, of any kind, which the claimant makes with the respondent.[40]DR replied to the email on the same day (p98) acknowledging it and asking the claimant to contact JH about his absence.[41]The respondent has an attendance procedure (pp165-187). This requires employees who are absent from work due to ill health to keep in touch with managers (p167). If contact is not maintained then managers will record the absence as unauthorised and a “no contact” letter will be issued (p168). Certification of the absence is also required; up to 7 days can be self-certified; more than 7 days requires a certificate from a doctor (p168). If an employee continues to fail to keep in contact with their managers then this can result in disciplinary action up to and including dismissal.[42]The respondent attempted to contact to discuss his absence. Phone records (pp99, 100, 102,103 and 104) show that the following calls were made to the claimant’s mobile phone number, either by DR or JH (they both called but could not remember which specific calls were made by each of them):-a.28 December 2024 at 12.13pm.b.30 December 2024 at 11.38am.c.7 January 2025 at 11.29am.d.8 January 2025 at 1.30pm.e.20 January 2025 at 10.28amf.20 January 2025 at 10.29am.[43]None of these calls were answered and voicemail messages were left for the claimant asking him to contact the office to discuss his absence. The claimant did not return any of these calls nor reply to the voicemail messages.[44]JH also sent two letters in January 2025 asking the claimant to contact him. He could not recall the dates of these letters and had not retained copies. The second letter informed the claimant that if he did not respond by 21 January 2025 then JH would consider that he had left the respondent’s employment. The claimant did not reply to these letters.[45]JH accepted that he did not follow the respondent’s attendance procedure in relation to a failure to maintain contact by the claimant. He had felt that it was better given the claimant’s short time with the respondent to try to resolve matters informally.[46]Given the claimant’s lack of response to his letters, JH considered that the claimant’s employment had ended on 21 January 2025. He processed this through the respondent’s system. For reasons which no-one could explain, the claimant did not receive any notification of this until March 2025.[47]On 22 January 2025, the claimant commenced Early Conciliation with ACAS. He did so because he had not received any reply to his email of 27 December and no-one could explain what happened with his wages. He did not speak to anyone at ACAS and the Early Conciliation process ended on 5 March 2025 with the certificate being issued that day (p1).[48]On 7 March 2025, the respondent received an email from ACAS (pp110-111) confirming that the claimant had commenced Early Conciliation. This was sent to a general email address which the respondent had previously asked ACAS to send Early Conciliation notification. Neither JH nor DR had sight of this email until after the present claim had been lodged. The email confirmed that Early Conciliation had concluded on 5 March 2025.[49]Payments were made to the claimant on 31 December 2024, 31 January 2025, 28 February 2025 and 30 May 2025. These were not accompanied by any explanation of how they had been calculated or what sums were being paid other than the payslips issued at the time (pp118-121).[50]On 10 March 2025, the claimant received a letter from the respondent dated 5 March 2025 (p105) confirming that his employment had ended on 21 January 2025 and enclosing documents such as his P45. He did not query this letter or the date of termination with anyone, either JH, DR or the payroll department who issued the letter.[51]It is agreed by parties that the claimant was paid £377.37 a week. Submissions[52]Both parties gave oral submissions. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant law
[53]Section 104 of the Employment Rights Act 1996 (ERA) deems any dismissal to be unfair where the reason for the dismissal is that the employee asserted a statutory right.[54]It was held in Maund v Penwith District Council [1984] IRLR 24 that the burden of proof regarding the reason for dismissal lies with the employer unless the employee does not have the requisite length of service to pursue a claim of “ordinary” unfair dismissal. If that is the case then the onus is on the employee.[55]The reason for a dismissal was described by Cairns, LJ in Abernethy v Mott Hay and Anderson [1974] IRLR 213 (approved by the House of Lords in subsequent decisions such as W Devis & Sons Ltd v Atkins [1977] AC 931 and West Midlands Co-operative Society v Tipton [1986] IRLR 112) as follows:- “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[56]The Equality Act 2010 protects individuals from discrimination on the grounds of various protected characteristics. These include, for the purposes of this case, disability.[57]The definition of direct discrimination in the 2010 Act is as follows:- “13 Direct discrimination A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[58]These provisions do not stand on their own and any discrimination must be in the context of the provisions of the Act which makes it unlawful to discriminate in particular circumstances. The relevant provision in this case is:- “39 Employees and applicants An employer (A) must not discriminate against an employee of A's (B)— by dismissing B.”[59]The burden of proof in claims under the 2010 Act is set out in s136:- “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[60]The burden of proving the facts referred to in s136(2) lies with the claimant. If this subsection is satisfied, however, then the burden shifts to the respondent to satisfy subsection 3.[61]Although the test for direct discrimination forms a single question, the caselaw indicates that it is often helpful to separate this into two elements; the less favourable treatment and the reason for that less favourable treatment.[62]In order for there to be less favourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).[63]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (s23 of the Equality Act 2010). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (see, for example, Chief Constable of West Yorkshire Police v Vento [2001 IRLR 124).[64]However, a difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International [2007] IRLR 246). The Tribunal needs evidence from which it could draw an inference that race was the reason for the difference in treatment.[65]It is important to remember that unreasonable or unfair behaviour is not enough to allow for an inference of direct discrimination (Bahl v The Law Society [2004] IRLR 799).[66]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong [2005] ICR 931 (as approved by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870).[67]Any detriment does not have to be solely by reason of the protected characteristic; if any protected characteristic has a ‘significant influence’ on the treatment of a claimant then direct discrimination is made out. (Nagarajan v London Regional Transport [1999] ICR 877, HL; Villalba v Merrill Lynch and Co Inc and ors 2007 ICR 469, EAT. In Igen (above) Lord Justice Peter Gibson clarified that for an influence to be ‘significant’ it does not have to be of great importance and is something more than trivial.[68]The definition of discrimination arising from disability in the 2010 Act is as follows:- “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[69]Guidance as to how to apply the test under s15 was given in Pnaiser v NHS England [2016] IRLR 170, EAT:-a. Was there unfavourable treatment and by whom?b. What caused the treatment, or what was the reason for it?c. Was the cause/reason 'something' arising in consequence of the claimant's disability?d. This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator.e. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.[70]In terms of justification, the EAT in MacCulloch v ICI [2008] IRLR 846 set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941:- “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways [2005] IRLR 862 at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at pp.30–31. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.”[71]The duty to make reasonable adjustments is set out in s20 of the Equality Act with s21 making a breach of the duty an unlawful act. The relevant provisions of s20 are:- “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice (PCP) of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) …(5) …(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.”[72]In relation to the duty to make adjustments, the degree to which any adjustment would overcome the disadvantage to the claimant is relevant to whether the adjustment is reasonable (HM Prison Service v Johnson [2007] IRLR 951). Further, the duty is intended to integrate disabled people into the workplace and this is also relevant to whether any adjustment is reasonable (O'Hanlon v Revenue and Customs Comrs [2007] IRLR 404).[73]Paragraph 20 of Schedule 8 of the Equality Act provides that the duty is not engaged if the employer did not know, or could not be reasonably expected to know, that the disabled person has a disability and was likely to be placed at a disadvantage. There is, therefore, two matters about which an employer must have knowledge for the duty to be engaged.[74]The case of A Ltd v X [2020] ICR 199 sets out guidance for Tribunals in assessing the employer’s knowledge of disability:- “In determining whether the employer had requisite knowledge for section 15(2) purposes, the following principles are uncontroversial between the parties in this appeal:(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.(2) The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) longterm effect, see Donelien v Liberata UK LtdUKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.(3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.(4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, " it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so] ", per Langstaff P in Donelien EAT at paragraph 31.(5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows: "5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."(6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so ( Ridout v TC Group [1998] IRLR 628 ; SoS for Work and Pensions v Alam [2010] ICR 665 ).(7) Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[75]The test for victimisation is set out in s27 of the Equality Act 2010:- “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(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.”[76]It is important to distinguish between cases where the alleged detriment has a connection to the protected act but is not “because” of it from those cases where the detriment is directly because of the protected act.[77]For example, in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, it was held that a refusal of a reference did not amount to victimisation on the basis that it was not refused because of the fact that the claimant had brought a race discrimination but because of the imminence of the hearing in the case and the respondent’s desire to protect their position in the litigation.[78]The principles set out above in relation to detriment, “significant influence” and the burden of proof apply equally to a victimisation claim as they do to a claim for direct discrimination.[79]An employee is entitled to notice of the termination of their employment. The amount of any such notice can be found in the contract of employment or by way of the minimum statutory notice to be found in section 86 of the Employment Rights Act 1996 which is based on length of service.[80]Where an employer does not give the correct notice of dismissal then an employee can recover damages for this breach of contract equivalent to the salary they have lost for the relevant period.[81]The Tribunal was given the power to hear breach of contract claims by the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994.[82]Section 13 of the Employment Rights Act 1996 (ERA) provides that an employer shall not make a deduction from a worker’s wages unless this is authorised by statute, a provision in the worker’s contract or by the previous written consent of the worker.[83]In terms of s13(3) ERA, a deduction of wages arises in circumstances where the total amount of wages paid by an employer to a worker on any occasion is less than the total amount of wages properly payable on that occasion. Decision – unfair dismissal[84]The Tribunal will deal with each of the claims brought by the claimant in turn. Although most of them arise in respect of the same matter (that is, the claimant’s dismissal), there are different issues to be addressed in determining each claim that makes it more sensible to deal with each in turn.[85]The first claim which the Tribunal will address is the claim for unfair dismissal. The respondent now accepts that the claimant was dismissed and that this occurred on 10 March 2025 when he received the letter dated 5 March 2025 confirming that his employment had ended. The Tribunal agrees that, as a matter of law, the effective date of termination is 10 March 2025 when the claimant was informed that his employment had been terminated.[86]The respondent correctly accepts that the issues which the claimant raised about his wages would fall within the scope of asserting a statutory right in terms of s104 ERA (specifically, he was asserting a deduction of wages contrary to s13 ERA).[87]The question then is whether the sole or principal reason for the claimant’s dismissal was that he had asserted this statutory right. The claimant had less than 2 years’ service and so the burden of proof in terms of the reason for dismissal lies on him.[88]The claimant led no evidence whatsoever that even suggests that the issue he raised with his wages had any influence at all on the decision to dismiss him, let alone that it was the sole or principal reason for his dismissal.[89]In particular, JH had no involvement in the wages issue and there was no evidence that this was in his mind when making the decision to dismiss. Whilst DR did have limited involvement in the wages issue, he was not involved in the decision to dismiss at all. Further, he had sought to help the claimant by contacting payroll and letting the claimant finish early on 27 December 2024 to go home and draft an email to payroll. These are not the actions of someone who would then want to sack the claimant for raising the issue.[90]Rather, the clear reason for the claimant’s dismissal was that he was not attending work and had failed to make or maintain any contact with the respondent. This was clearly the reason in JH’s mind when he made the decision to dismiss and no other conclusion can be reached from the evidence heard by the Tribunal. There was simply no evidence of any reason why JH dismissed the claimant other than that he was not attending work and was not maintaining any contact.[91]For these reasons, the claim of unfair dismissal is not well-founded and is hereby dismissed. Decision – direct disability discrimination[92]The Tribunal has already found, as set out above, that the reason for the claimant’s dismissal was his non-attendance at work and the failure to maintain contact. On the face of it, this is sufficient to dispose of the direct discrimination claim because the claimant was not dismissed because of his disability.[93]However, the Tribunal has gone on to consider whether it could draw an inference that the claimant’s disability had sufficient influence over the decision to dismiss the claimant to amount to direct discrimination. For the following reasons, the Tribunal considers that the claimant’s disability had no influence over the decision to dismiss the claimant.[94]First, and fundamentally, JH had no knowledge of the claimant’s disability at all. The claimant never informed him of any disability and he never received any information from any other source that the claimant was disabled.[95]The claimant relies on the fact that he indicated that he was disabled in the online application through SuccessFactors (p61) but this was a system used by Reed Recruitment and not the respondent; there was no evidence that JH had access to this, let alone that he had actually seen this information.[96]The claimant also relies on the health questionnaire that he completed but this was confidential and would not be disclosed to any manager (p196). There was certainly no evidence that JH had ever seen this. At most, the respondent would have received the certificate (which recorded the outcome of the health assessment) at p101 that the claimant was fit for his role.[97]Finally, there was the email the claimant sent on 28 December 2024 informing DR that he was unfit for work which was shared with JH. However, all this does is state that the claimant was suffering stress and anxiety on that date (and possibly for up to a further 7 days). There is nothing in that email from which JH could know, or reasonably have known, that the claimant had a disability.[98]It is axiomatic that if there is a fact unknown to someone then that fact cannot have influenced any decision they have made. JH did not know that the claimant had a disability and so the claimant’s dismissal cannot have been influenced by that disability.[99]Second, there was no evidence led by the claimant as to how any other employee in the same circumstances was or would have been treated. The Tribunal cannot, therefore, conclude that there was an actual comparator who was treated more favourably or that a hypothetical comparator would have been treated more favourably.[100]It is not surprising that the respondent dismissed an employee who ceased attending work and who did not reply to repeated attempts to contact them to find out what was happening. The Tribunal considers that any employee who, for whatever reason, behaved in the same way as the claimant would have been treated in the same way. There would need to be very compelling evidence that others were, or would have been, treated differently for the Tribunal to conclude that the claimant was being treated less favourably and there was simply no evidence at all on this point.[101]For all these reasons, the claim for direct disability discrimination is not well- Decision – discrimination arising from disability[102]The claimant relies on two matters as amounting to unfavourable treatment in respect of this claim; his dismissal and the failure by the respondent to follow their own procedures in respect of absence and no contact from the employee.[103]In relation to the latter matter, there is no dispute that the respondent did fail to follow their own procedures.[104]The Tribunal finds that the reason for the claimant’s dismissal and the respondent’s failure to follow their own procedures was the claimant’s nonattendance at work and his lack of contact. The Tribunal bases this conclusion on what it set out above in relation to the unfair dismissal claim.[105]The Tribunal finds that this reason is “something” arising from disability; it accepts the claimant’s uncontested evidence that his behaviour in this regard was a manifestation of his disability. The Tribunal does note, however, that the claimant was not wholly incapable of engaging in communication given that he attended the occupational health call on 2 January 2025 and was capable of contacting ACAS on 22 January 2025.[106]The claimant’s dismissal and the respondent’s failure to follow their own procedures are, therefore, acts of discrimination arising from disability.[107]However, the Tribunal considers that the respondent benefits from the statutory defence under s15(2) of the Equality Act because it considers that the respondent, specifically JH as the person who carried out the treatment in question, did not know nor could he have reasonably have known that the claimant had the disability in question.[108]The Tribunal has reached this conclusion on the same basis as it has in respect of the direct discrimination claim above. There was nothing said to JH by the claimant or anyone else which provided him with express knowledge of the claimant’s disability. Neither was there any evidence that he had had sight of any of the forms in which the claimant had disclosed he had a disability.[109]The only thing from which it might be said that JH could have had reasonably known that the claimant was disabled was the email of 27 December 2024. However, as set out above, this said nothing more than that the claimant was suffering from stress and anxiety on that given day. The Tribunal considers that this, on its own, is not sufficient for it to conclude that JH could reasonably have known that the claimant had a disability.[110]Of course, further investigations by JH about what was causing the claimant to suffer stress and anxiety would likely have led to him learning about the claimant’s disability. However, he was prevented from making such investigations because the claimant ceased to make all contact with him and the respondent generally. He and DR made every reasonable effort to contact the claimant and he simply did not respond.[111]At its highest, all that can be said is that JH knew that the claimant had a health issue on 27 December 2024 that prevented him coming to work but the Tribunal is satisfied that, given the lack of any further information from the claimant, it was unreasonable for JH to be expected to know that the claimant “suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long- term effect” as per A Ltd v X (above).[112]For this reason, the claim of discrimination arising from disability is not well- Decision – victimisation[113]The claimant relies on ACAS Early Conciliation as the protected act for the purposes of the victimisation claim. However, there is no evidence from which the Tribunal could conclude that this amounts to something falling within the scope of s27(2) of the Equality Act.[114]When asked by the Judge why he engaged with ACAS when he did, the claimant’s evidence was that it was because the issue with his wages due on 27 December 2024 had still not been paid by this point, he had had no response to his email about this and no-one was willing to help him. None of this has any connection to a complaint under the Equality Act; the claimant has never alleged at any stage of the case that the issue with his wages was a contravention of the Act.[115]The claimant led no other evidence about what he said to ACAS; he did not give any oral evidence about this, he did not lodge a screenshot of what information he had provided to ACAS and the one document which may have contained relevant information (that is, the email from ACAS to the respondent) had been redacted to remove the details of the complaint because the claimant would not consent to this information being disclosed.[116]The Tribunal, therefore, finds that there was no protected act and, in the absence of any protected act, the victimisation claim has no merit at all.[117]However, even if commencing Early Conciliation had been a protected act, JH was not aware of it when he had failed to follow the respondent’s procedures and when he made the decision to dismissed on 21 January 2025. Indeed, he did all of this before the claimant had even commenced Early Conciliation.[118]The respondent as an organisation was not aware of the claimant having commenced Early Conciliation until 7 March 2025 which is two days after they had written to the claimant confirming the termination of his employment.[119]There is, therefore, no basis on which the Tribunal could conclude that Early Conciliation had any influence on the respondent’s action given that they did not know about it until after everything that is alleged to be victimisation had occurred.[120]For these reasons, the Tribunal finds that the claim for victimisation is not well- Decision – reasonable adjustments[121]The first question for the Tribunal in determining whether the duty to make reasonable adjustments was engaged in this case is what PCP was being applied by the respondent.[122]From the evidence heard by the Tribunal, the Tribunal finds that the PCP was that all those being employed as part of the relevant recruitment exercise must commence employment on or before 23 December 2024. The evidence from RW was that this was the requirement put in place by the respondent for the particular recruitment exercise in which the claimant was recruited.[123]The claimant had contended for a PCP that the respondent required a change of shift patterns from night shift to day shift without any break. This was undoubtedly the consequence for the claimant arising from his particular circumstances (that is, having an existing seasonal contract with the respondent and choosing to work under that contract up until the last day before he started his permanent contract). However, based on the evidence, that was not the PCP being applied by the respondent; all the respondent was requiring was people being recruited to start on or before 23 December 2024.[124]In terms of knowledge, the position is different in respect of this claim than the other claims. The reason for this is that those involved in organising the start of the claimant’s permanent contract were different from those involved in the later issues during his absence. In particular, neither DR nor JH were involved in this (other than JH carrying out the interview) and the start date for the claimant was organised by employees of Reed Recruitment acting as agents for the respondent.[125]Those individuals did have access to the SuccessFactors system on which the claimant had indicated that he had a disability when making his application. The Tribunal considers that those individuals at Reed Recruitment had, or could reasonably have had, knowledge that the claimant was disabled as a result of this disclosure.[126]However, no-one at Reed Recruitment nor anyone directly employed by the respondent could have known or could reasonably have known that the PCP being applied would place the claimant at a substantial disadvantage in comparison to people who were not disabled.[127]Whilst it is not in dispute that the claimant asked for a later start date, he did not, at any point, link this to his disability or say anything which anyone acting for the respondent could have reasonably concluded that this request was in any way connected to his disability. The claimant gave no evidence at the hearing that he had said that his request for a later start date was connected to his disability and none of the contemporaneous documents contain anything which could reasonably be read as raising such an issue.[128]The Tribunal does not consider that the fact that he asked for a delay in his start date means that the respondent could reasonably have known that the PCP was placing him at a disadvantage compared to someone who is nondisabled. The Tribunal considers that any employee moving from night to day shift (or vice versa) may well ask for a period to allow them to adjust. Nothing about the claimant’s request was such that it would only be made by a disabled person and anyone changing their working and living patterns in this way would face some issues whilst they adjust.[129]The lack of relevant knowledge would be sufficient, on its own, for the Tribunal to determine that the duty to make reasonable adjustments was not engaged but there was also no evidence led by the claimant that the PCP did place him at a substantial disadvantage; he commenced work on 23 December with no issue and worked 24 December with no issue; he then had Christmas and Boxing Day off; he returned to work on 27 December 2024. On the face of it, the claimant transitioned from night to day shift with no apparent difficulty.[130]In his evidence, he sought to suggest that one of the reasons for the stress and anxiety that made him go off work on 28 December was the change in shift patterns. The Tribunal notes that the claimant made no mention of this at the time and it was clear from his evidence that the event which triggered his absence was the fact he was not paid his wages as expected on 27 December.[131]In these circumstances, the Tribunal finds that the duty to make reasonable adjustments was not engaged in the present case.[132]For all these reasons, the Tribunal considers that the claim of a breach of the duty to make reasonable adjustments is not well-founded and is hereby dismissed. Decision – deduction of wages[133]It is not in dispute that the claimant was not paid the wages he was entitled to be paid on 27 December 2024. It is also not in dispute that those sums have been paid subsequently and the claimant is not owed any further wages from the respondent.[134]In these circumstances, the Tribunal makes a declaration that the respondent unlawfully deducted the claimant’s wages due on 27 December 2024 but does not make any order for the respondent to pay any amount deducted because the Tribunal is satisfied that the sums owed in respect of that deduction have already been paid. Decision – breach of contract[135]There is no dispute that the claimant was dismissed without notice. He was, on the face of it, dismissed in breach of contract as a result.[136]The respondent argues that the claimant’s failure to attend work and maintain contact with the respondent during his absence amounted to a fundamental breach of contract by the claimant meaning that the respondent was no longer bound by the contract.[137]The Tribunal can see some force in that argument; boiled down to its essence, a contract of employment is an agreement that the employer will provide work, the employee will do that work and the employer will pay for that work. If either party does not comply with any of these fundamental components of the agreement between them then they have breached the contract. There is no question that the claimant was not complying with his end of the agreement as he was not turning up to do the work being provided by the respondent.[138]However, the reality of working life is that such a simplistic approach to the employment contract will not work in practice. People get ill and so contracts of employment provide for that circumstance. In the present case, there were policies and procedures in place within the respondent to deal with absences and even to deal with circumstances where an employee did not maintain contact during an absence. Those policies and procedures were not followed by the respondent in the present case.[139]In these circumstances, the Tribunal does not consider that the claimant’s actions were such that, when the contract is looked at as a whole, he had fundamentally breached the contract.[140]The claimant was, therefore, entitled to one week’s notice of his dismissal and this was not provided. The Tribunal, therefore, awards the claimant damages for this breach of contract equal to one week’s wage, that is, £377.37.