Mr J Chica Arango v Interhigh Education Ltd — 2022

Mr J Chica Arango worked for Interhigh Education Ltd as a Spanish teacher from 14 December 2007 until 31 August 2020. The case arose from the respondent's harmonisation exercise and proposed new contract. The tribunal accepted that harmonising terms and conditions was a potentially sound business reason, but it found the consultation process was procedurally unfair in material respects. In particular, it held that the promised 10% increase was misleading on the figures before it: the claimant's pay would have moved from £20,925.32 to £21,181.47, an increase of £256.18 a year, and he was not given a clear personalised statement of his hours and salary.

The tribunal also considered the way the claimant was dealt with while off sick in summer 2020. It found that repeated contact about meetings and the termination process added unnecessary pressure when he was trying to recover, and it regarded the absence of an occupational health referral as a factor, though not decisive on its own. On that basis the unfair dismissal claim succeeded. The tribunal said a Polkey deduction might be relevant at remedy, but remedy was left for a later hearing.

On the disability claims, a preliminary ruling had found the claimant disabled from 1 August 2020 with adaptive or adjustment disorder with anxiety. The tribunal dismissed the section 15 claim because the decision to give notice of dismissal had been made on 19 June 2020, before the disability date, and because it did not accept that any inability to understand or sign the new contract arose from disability. It also found that by the 3 August 2020 return-to-work meeting the respondent knew of the disability from the medical information provided.

The reasonable adjustments claim also failed. The tribunal treated the requirement to sign the new terms by 31 August 2020 as a continuing PCP into the disability period, but held that the claimant was able to participate meaningfully in the consultation and grievance process in August 2020 and was not placed at a substantial disadvantage compared with a non-disabled person. It therefore did not go on to decide what adjustments, if any, would have been required.

The harassment claim related to disability was dismissed. The tribunal accepted that some comments in August 2020, including discussion about whether he had considered changing career and references to the medical benefits of the new contract, were related to disability, but held that in context they were made in a courteous and supportive return-to-work discussion and did not create a hostile, intimidating, degrading, humiliating or offensive environment. The part-time worker claim failed because the claimant did not prove less favourable treatment when compared with full-time workers; the tribunal found the non-contact-time allowance was pro rata.

The breach of contract claim succeeded. The contract gave a notice period of one Term, which the tribunal treated as four months, and it found the claimant was not paid the full contractual notice pay because payment stopped at 31 August 2020, with SSP paid during the sickness period from 29 May to 3 August 2020. The exact monetary amount was left to be determined at remedy because the tribunal did not have payslips enabling a full calculation.