Ms I Bayliss, counsel For the v Respondent — 2022

Mr Matei was employed as a Chef de Partie from 2 January 2020 under terms and conditions that incorporated a contractual sickness absence reporting procedure. The tribunal found that he had previously failed to report absences properly in February, March and July 2020, had been reminded of the procedure on 21 September 2020, and then failed to attend a shift on 1 October 2020 while contacting a colleague rather than Mr Wilkinson. He was dismissed for gross misconduct after a disciplinary hearing chaired by Ms Kerton, and he did not appeal.

The claim under section 15 Equality Act 2010 failed. The tribunal accepted that Mr Matei was disabled because he is HIV positive, but found that the dismissal was because he breached the contractual absence-reporting procedure, not because of absences themselves or because of something arising in consequence of disability. It rejected the argument that embarrassment about disclosing his HIV status caused the procedural breach, finding that he could have contacted his manager with the same explanation he gave a colleague and that he had in any event resolved to tell his manager. The tribunal therefore found no causative link between any disability-related matter and the dismissal. It also said that a section 15(2) knowledge defence was not made out because the respondent knew he was HIV positive before the dismissal decision.

The wrongful dismissal claim also failed. The tribunal held that the requirement to report absence to a manager was contractual, had been explained to the claimant after previous breaches, and was important to the respondent's business. It found that the claimant's repeated disregard of the procedure, including the 1 October absence, undermined trust and confidence and amounted to repudiatory breach. On that basis the respondent was entitled to accept the breach and dismiss summarily without notice. The tribunal recorded a divided view on whether the claimant's explanation to a colleague on 1 October was truthful, but all members agreed that he did not contact his manager and breached the reporting procedure.