Mr G Davies v Tithebarn Ltd and 2 others — 2021

Mr Davies worked for Tithebarn Ltd as a sales representative from 23 June 2014 until his dismissal in September 2020. The tribunal accepted that he was disabled within the Equality Act 2010, with anxiety and depression, and that the respondents knew of those conditions. The dispute arose after the March 2018 merger with Minsups, which led to changes to sales territories, group ordering and stock management, followed later by long-term sickness absence and redundancy consultation.

On the early disability allegations, the tribunal preferred Ms Biddle's evidence about the 10 September 2018 telephone call and found that her question about why some days were better than others was a genuine enquiry rather than aggressive or condescending treatment. It also found that Mr Armstrong's 30 January 2019 call about returning stock and answering customer complaints was frustrated but not harassing, and that the 5 September 2019 letter about fit notes and possible discipline was a legitimate attempt to secure engagement and authorise sickness absence.

The grievance process partly succeeded. John Melling upheld the complaints that customers had been allowed to contact the claimant during sickness absence and that an invoice relating to his studies had not been paid, but rejected the remaining grievances. In the appeal process, Ms Kaye initially postponed the hearing after reviewing occupational health and psychiatric evidence; the tribunal held that delaying the hearing to obtain clearer medical evidence was a proportionate step aimed at securing a fair hearing. In that context the respondent said it would fund CBT sessions up to £1,400.

The tribunal rejected the allegation that the redundancy process was discriminatory or unreasonable. It found there was a genuine redundancy situation, that the claimant was consulted, and that the vacancy process was designed to be fair and measurable for all affected sales representatives. The claimant was given an extension to 22 July 2020 and was suggested to seek assistance from his wife, but his application was still late and he was unfit for interview when the process closed. The tribunal found no evidence that the process had been manipulated to exclude him.

The only discrimination finding that succeeded concerned John Melling's comments in the dismissal appeal that minimised how difficult the application process had been. The tribunal found those remarks created an offensive environment and were related to the claimant's disability because they were directed at what he could not do. The same comments also made the dismissal unfair to that limited extent, although the tribunal held that the redundancy dismissal would have occurred in any event.

Most other claims failed. The tribunal rejected direct discrimination, victimisation, the reasonable adjustments complaint, and the remaining harassment allegations, and it found that the commission and bonus claim was not proved. It held that there was no compensation for unfair dismissal because of Polkey and section 123 of the Employment Rights Act 1996, but recorded that the claimant was entitled to an injury to feelings award for the appeal-hearing comments; the extracted text does not state a quantified award.