Mr. J B Bithell v Ministry of Defence HELD BY: CVP — 2021

The claimant worked as a storekeeper/driver at Llanrwst from 17 October 2017, handling PPE, canoes, mountain bikes and general stores work in a two-storey building. The tribunal found the respondent knew of his musculo-skeletal conditions from the recruitment interview and throughout employment, but did not know and ought not reasonably to have known that he was disabled by dyslexia. It also found that the physical layout and working practices required regular carrying of kit and equipment up and down stairs, and that this caused pain and discomfort.

On whistleblowing and health and safety, the tribunal found protected disclosures in respect of PPE records, buoyancy aids/canoes and mountain bike servicing, but not the security gate. It found that the claimant was designated to carry out health and safety activities for PPE, the canoe fleet and mountain bikes, and that the only detriment made out was the Lyon incident, when he was reprimanded after emailing a PPE training company with his line manager's approval and after challenging the re-dating of PPE records. The tribunal treated that response as a detriment because of both the protected disclosure and the health and safety activity.

On disability discrimination, the tribunal held that the claimant's musculo-skeletal conditions amounted to a disability, but that dyslexia did not. It found that the parking-related allegations of direct discrimination and harassment were presented out of time and that it would not be just and equitable to extend time. Victimisation also failed. The disability discrimination claim succeeded only in relation to indirect discrimination and reasonable adjustments for the two-storey store and the repeated lifting and carrying of equipment on stairs, which the tribunal found put the claimant at a substantial disadvantage through pain and discomfort.

The tribunal accepted that the respondent did not generally regard the claimant as underperforming, but it did find that he was sometimes seen as irritating or disobedient when he acted outside established procedure. It found that the claimant's resignation on 8 August 2019, effective 30 August 2019, followed a cumulative course of conduct including the failure to make adjustments, workload issues after Ms Howes went on maternity leave, the reprimand over the PPE disclosure, and the July 2019 email from Richard Wells. It held that the claimant was constructively unfairly dismissed and that the principal reasons for dismissal fell within s.103A and s.100 ERA.

On pay, the tribunal found weekly pay without overtime was £375.60 and regular overtime averaged £27.84 per week. It calculated accrued holiday pay at £1,492.73, deducted £1,016.18 already paid, and found £486.25 outstanding. Remedy for the remaining successful claims was reserved to a later hearing, save for that holiday pay sum.