Mr P Hunt v RT Keedwell Group Ltd — 2023

The claimant, an HGV driver with COPD, told the respondent on 22 March 2020 that he was concerned about coronavirus and should be treated as clinically vulnerable. The tribunal accepted that the respondent had knowledge of his disability by 22 March 2020. It also accepted that the claimant later raised concerns in September 2020 about the condition of the Hensall hygiene facilities, and held that those concerns amounted to a protected disclosure made to the respondent for the purposes of s43C ERA 1996. The tribunal did not accept the separate alleged disclosure said to have been made by Paul Munroe to Karen Mudford, because the claimant was not present and there was insufficient evidence of what was said.

The tribunal rejected the claimant's whistleblowing detriment case. It accepted that he was paid SSP when he was off work and that the respondent refused to furlough him in November 2020, but found that those decisions were not made because of the protected disclosure. The respondent had applied to the CJRS guidance and Treasury Directions then in force, concluded that its business was not in a position to use furlough at that time, and paid SSP as the available alternative. On that evidence, the tribunal held that the necessary causation for a s47B claim was absent.

The disability discrimination claims failed for different reasons. Under s15 Equality Act 2010, the tribunal accepted that the claimant's need to shield was something arising in consequence of disability and that SSP/refusal of furlough were unfavourable treatment, but it held that the respondent's aims of staffing management and compliance with the CJRS were legitimate and that the response was proportionate. For indirect discrimination and reasonable adjustments, the tribunal accepted the pleaded PCPs about working or staying home on SSP, but held that furlough was not a reasonable adjustment because the respondent could not use the CJRS at the relevant time, and that the suggested alternative role and additional protective measures would not have changed the claimant's position while he was shielding.

The tribunal also dismissed the harassment and victimisation claims. It held that the refusal to furlough was not shown to be conduct related to disability for s26 purposes, and that the claimant had not been subjected to the complained-of detriment because of any protected act for s27 purposes. The tribunal accepted that the claimant was upset by the respondent's position, but it found that the conduct complained of did not satisfy the statutory tests.

The unfair dismissal and wrongful dismissal claims failed because the tribunal found no repudiatory breach of contract. It accepted that there had been a delay in PPE on 27 July 2020, that the replacement truck was dirty on delivery, and that there had been one occasion in September 2020 when the toilet facilities were unsatisfactory, but it found these were isolated matters that were resolved and did not amount to a continuing breach of the implied term of mutual trust and confidence. The claimant resigned on 26 November 2020 because of the furlough dispute, but the tribunal held that this was not a resignation in response to a contractual breach and that he had in any event affirmed the contract by continuing in employment after the earlier issues.