Mr Ian Boyles v Mr Richard Clarke Mavericks Motorcycles Ltd — 2022

Mr Boyles worked for Mavericks Motorcycles Ltd from 25 April 2016, initially on an annual salary of £22,500 which increased to £32,500 from 24 May 2017. The tribunal found that he developed kidney cancer in 2019, underwent surgery on 2 August 2019, and that Mr Clarke knew of the diagnosis before the sickness absence. It also found that the business was very small and depended heavily on Mr Boyles' mechanical and engineering skills, and that although both principal witnesses were partisan, Mr Boyles was the more candid witness.

On wages, the tribunal found repeated late or missing payments from 2017 onwards, including continuing underpayments after the May 2017 pay rise. It held that there was an unbroken series of deductions for limitation purposes, that some informal agreement to shortfalls was not in writing and was not always given before the due date, and that the failure to pay the full contractual salary was not because of disability but because of the company's finances and Mr Clarke's decision not to fund the shortfall personally. It also held that the later change to five-day working after the claimant's return from sickness was not reflected in a compliant section 4 statement of changes, although the original April 2016 contract satisfied section 1.

The disability discrimination claims were dismissed. The tribunal held that the direct discrimination allegations, the section 15 allegations and the reasonable adjustments allegations all failed because the relevant treatment was not because of disability or because of something arising from disability, and because the pleaded PCPs were not established or did not show the necessary substantial disadvantage. It found that the proposed increase in duties in late 2019 and January 2020 was driven by Mr Clarke's wish to step away from day-to-day workshop management and focus on other business plans, and that the grievance delay from late March 2020 was influenced by the business move, lockdown and later by the anticipation of tribunal proceedings rather than by the claimant's disability.

The harassment claim succeeded only on the 6 February 2020 request for copies of the 2019 Med 3 certificates. The tribunal found that this was unwanted conduct related to disability because it concerned sick pay arising from disability-related absence and had the statutory effect, but it dismissed the August and September 2019 return-to-work messages and the reference to the certificates as 'unverified'. It also found that the overall cumulative conduct, including the attempted imposition of extra responsibilities, the 'unverified' sick note reference, and the handling of the grievance, breached trust and confidence and amounted to constructive unfair dismissal. No remedy was determined in this judgment, and a separate remedy hearing was ordered.