Miss G Crew, Counsel For the v Mr N Henry, Consultant — 2019

The tribunal found that the claimant had Asperger's syndrome and PTSD, and that the respondent had constructive knowledge of the PTSD but not of Asperger's. It accepted that the claimant had worked successfully under the previous owner, Mr Pasquino, and that the relationship changed after the respondent bought the restaurant in June 2018. The tribunal found a pattern of intemperate conduct by the respondent, including shouting, swearing, threats and unfair chastisement, although it also noted that the claimant sometimes behaved poorly, including lateness, being hung over and using his phone at work.

On the unfair dismissal claim, the tribunal held that the respondent's conduct amounted to a fundamental breach of the implied term of trust and confidence. It found that the incident on 16 August 2019, when the claimant arrived late and not fit for work and was sent home, was capable of amounting to a last straw, and that the claimant resigned the following day in response to that breach. The dismissal was therefore constructive and unfair because the respondent identified no potentially fair reason. On the wrongful dismissal issue, the tribunal held that the claimant was not guilty of gross misconduct and was entitled to his statutory minimum notice period.

The disability discrimination claims failed except for harassment. The tribunal rejected direct discrimination because it found no actual or constructive knowledge of Asperger's and noted evidence that the respondent shouted at a non-disabled waitress in a similar way. It also rejected discrimination arising from disability because the treatment complained of was not linked to PTSD; if there was a disability-related link, it was to Asperger's, which the respondent did not know about. The reasonable adjustments claim also failed because the duty did not arise on the facts found.

Harassment in relation to disability succeeded. Applying the approach in Hartley, the tribunal found that the unwanted conduct was related at least in part to Asperger's because it was directed not only at the claimant's conduct but also at how he presented, namely being shy, quiet and not engaging with customers in the way the respondent wanted. The tribunal also found the claim was brought in time as part of a continuing act. Separately, the tribunal found a breach of the obligation to provide written particulars of employment and said any award under s.38 Employment Act 2002 would be between two and four weeks' pay at the remedy hearing.