Mrs R Robertson v Wickes Building Supplies Limited — 2022

Mrs R Robertson worked for Wickes Building Supplies Limited from 20 November 2016, first as a kitchen and bathroom advisor and later as a store colleague. The respondent accepted that she had a disability within section 6 of the Equality Act 2010, namely recurrent depressive disorder with emotionally unstable personality disorder, and that it knew, or could reasonably have been expected to know, of that disability.

The tribunal accepted that, in an appraisal in 2018, Ms Maxine Porter told the claimant she would not be put forward for a design consultant role because she needed to get her attendance sorted out and did not have the right mindset or mental strength for the position. It also accepted that Ms Porter made comments in front of colleagues about managing the claimant out of the business and words to the effect of, "A design consultant? Really? Have you seen the state she's in?" The tribunal found that the promotion refusal was direct disability discrimination and that the comments were direct disability discrimination and harassment, but all disability discrimination complaints were ultimately dismissed because they were out of time and it was not just and equitable to extend time.

The tribunal found that the claimant raised a formal grievance in June 2019 and was told it would be investigated, but never received a written outcome. It accepted her evidence that the outcome letter was not received and found the respondent had failed to comply with its grievance policy, which required decisions to be communicated in writing. That failure was treated as a continuing breach of the implied term of trust and confidence. The claimant resigned without notice on 21 May 2021 in response to that breach, so her constructive dismissal claim succeeded, and her wrongful dismissal claim for notice pay also succeeded. A remedy hearing was left to follow for those dismissal claims.

On pay, the tribunal found that the respondent had not shown any lawful basis for the deductions from wages in August and September 2020 and had not produced a meaningful explanation of the alleged overpayment calculations. It therefore held that there had been an unauthorised deduction from wages and ordered payment of £1,123.89 net. The claim for accrued holiday pay was agreed at the hearing in the sum of £570.10 net. The monetary awards made in this judgment therefore total £1,693.99, with tax and national insurance liabilities on the respondent for those sums.