Mr R Craggs v BMS Electrical Services Limited — 2019

The claimant, an electrician employed from 1 June 2013, suffered a heart attack on 31 October 2017 and remained off work on sick leave with a heart condition and later depression. On the holiday pay issue, the tribunal rejected a separate claim for four additional days but held that his non-guaranteed overtime formed part of normal remuneration under Bear Scotland and awarded holiday pay for 17.25 hours per week over the four-week statutory leave period, producing £1,114.40 gross.

The constructive unfair dismissal claim failed. Applying the Weston Excavating, Omilaju and Kaur authorities, the tribunal held that the post-absence contact issues, the 15 May welfare meeting and the handling of the grievance did not amount to a fundamental breach of contract. It found that the claimant had affirmed the contract by agreeing to wait for the occupational health report, and that the respondent's invitation to a grievance meeting on 9 July 2018 came within a reasonable time after the report, so his resignation that day did not amount to a dismissal under s.95(1)(c) ERA 1996.

The disability discrimination claim under s.15 Equality Act 2010 succeeded. The tribunal found both the heart condition and depression were disabilities, that the respondent knew or ought reasonably to have known, and that the relevant unfavourable treatment arose from disability-related sickness absence. It upheld complaints about the lack of contact during a six-month absence, the failure to provide requested policies and meeting documents, and the failure to deal with the grievance in a reasonable time. A separate remedies hearing of half a day was directed.