Mr David Grayson v HI Weldrick Ltd — 2022

Mr Grayson worked as a prescription delivery driver and was absent from work from 20 August 2020 because of left arm problems. The respondent accepted that he was disabled by reason of damage to the ligaments in his left arm, but the tribunal found that it did not have knowledge that the disability was long-term until it received Dr Dann's occupational health report on 9 March 2021. The tribunal also determined that the effective date of termination was 1 April 2021, being the date on which the respondent received the resignation by email after office hours on 31 March 2021 and by hard copy letter.

The unfair dismissal case was put on the basis that the respondent's conduct on 10 February 2021 and at the meeting on 26 March 2021 amounted to pressure to return to work and a repudiatory breach of the implied term of trust and confidence. The tribunal found that the second occupational health referral was a reasonable step in light of the prolonged absence and the updated medical position, that the Holmfirth appointment was appropriate even though it involved travel, and that Miss Brown did not pressure the claimant to return in a different role. It also found that the claimant asked how long his job could be kept open and raised dismissal himself in the 26 March meeting, and that the respondent's notes were broadly accurate.

Applying Western Excavating, Malik, Post Office v Roberts and Buckland, the tribunal held that there was no fundamental breach of contract and therefore no dismissal, so the unfair dismissal claim failed. The section 15 claim failed because the tribunal did not find unfavourable treatment on the facts it accepted, and because the respondent did not have the relevant knowledge before 9 March 2021. The section 26 harassment claim also failed because the tribunal found the alleged acts in Table A were not proved and, in any event, the conduct it did find was not unwanted conduct related to disability. All claims were dismissed. At the start of the hearing, the claimant's application to amend the claim to include holiday pay was refused as an out-of-time and prejudicial amendment.