in person For the v Mr S Ball – partner — 2021

The claimant, a principal recruitment consultant employed since October 2011, suffered a bipolar breakdown in October 2016 and remained disabled at the material time. The tribunal found that the respondent asked him to resign in February 2018, issued a final performance warning in March 2018 without any prior capability procedure, withheld commission for a period, and on 18 November 2019 Mr Heynen told him he was mentally unwell and sent him home. Where the evidence conflicted, the tribunal preferred the claimant's account, supported on the February 2018 resignation conversation by his partner Ms Wood and on the November 2019 incident by the contemporaneous call to Ms Wood.

The constructive unfair dismissal claim failed. The tribunal held that the respondent's conduct amounted to fundamental breaches of the implied term of trust and confidence, but found that the claimant affirmed the contract rather than resigning in response to those breaches. It relied on the fact that he resigned on notice, had previously returned after an earlier resignation, and continued to communicate in a way that showed he remained open to a return to work. Applying Western Excavating and Mahmud, the tribunal therefore dismissed the constructive dismissal claim.

The tribunal upheld direct disability discrimination in relation to the invitation to resign and the 18 November 2019 remark, finding that a non-disabled comparator would not have been treated in that way and that the respondent had no non-discriminatory explanation. It also upheld discrimination arising from disability under s.15 Equality Act 2010 in relation to sick pay, withdrawal of clients, withheld commission, the resignation suggestion, the final warning and the November 2019 incident. The respondent relied on business viability and performance management as legitimate aims, but the tribunal held the treatment was not proportionate. The reasonable adjustments claim also succeeded: the tribunal accepted that performance proceedings were a PCP that put the claimant at a substantial disadvantage and found that the respondent did not take reasonable steps, including seeking medical advice, running a proper review process, or offering an appeal against the warning.

The unlawful deduction from wages claim was dismissed. The claimant accepted that the commission element had been paid by the time of the hearing, and the tribunal rejected the sick pay argument because the contract provided for three months' full sick pay only; the undated policy document relied on by the claimant was not shown to govern his contractual entitlement. On remedy, the tribunal rejected aggravated damages and personal injury damages for lack of evidential support, limited past loss to four months on the basis that the claimant could have sought a better-paid role within six months, and used a midpoint figure for commission because of the lack of corroborative evidence. It awarded £27,401.01 in total, comprising £5,249 for loss of earnings and commission, £20,000 for injury to feelings, and £2,152.01 interest.