In person v Mr. Mehat, H.R. Manager — 2022

From March to May 2020 the claimant, a part-time driver at the Erdington branch, was on sick/self-isolation leave after an isolation note to 1 April 2020. The tribunal found the respondent selected furlough from an anonymised list of active employees using a random process, and that the claimant was excluded because he was off sick. It rejected the claimant's evidence that Mr Allen told him not to return to work, finding instead that he chose to self-isolate when he was not furloughed and then did not provide further fit notes or other medical evidence required by the contract.

On the constructive unfair dismissal claim, the tribunal held that the respondent's failure to reply promptly to some emails, the involvement of Mr Mehat in the first grievance meeting, the absence of a stage 3 meeting, the delay in sending notes, and the handling of the grievance did not amount to a repudiatory breach of the implied term of trust and confidence. It accepted the pandemic context, the pressure on the HR function, and the evidence that the notes of the grievance and appeal were broadly accurate and not fabricated. The claimant therefore failed to show that he resigned in response to any fundamental breach.

The direct age and sex discrimination claims were out of time in principle, but the tribunal extended time on a just and equitable basis because the claimant had been pursuing the grievance process and there was no evidential prejudice to the respondent. The claims still failed on the merits: the tribunal found no prima facie case that age or sex influenced the furlough or return-to-work decisions, held that the female employees relied on were not proper comparators, and found that Mr Basham was not a comparator for the claimant's case because he was of similar age and the respondent's later backdating decision was based on his continuing sick notes. The unlawful deduction claim also failed because the reduced April and May wages were held to be lawful under the contract, which required self-certification and fit notes for continuing absence after the first seven days. All claims were dismissed and no financial award was made.