Mr E Nowicki v Clipper Logistics plc — 2019

Mr Nowicki began work with Clipper in November 2015 and later transferred to the Duke warehouse at Burton-on-Trent. The tribunal accepted that his son was disabled by reason of autism. It also found that Clipper accommodated Mr Nowicki’s fit notes for plantar fasciitis, granted flexible working in February 2017, and later dealt with occupational health issues arising in 2018.

The direct disability discrimination claim and the harassment claim both failed. On the training allegations, the tribunal accepted that Mr Nowicki was not trained on DNA trucks and was not trained for an admin role, but found no less favourable treatment because there was no actual or hypothetical comparator and the admin work required a full 12-hour shift for continuity reasons. On the March 2018 night shift, the tribunal accepted that Mr Nowicki believed he had been threatened with dismissal, but found that the notes and oral evidence did not support that conclusion and that Mr Baker and Mr Ludlow were seeking a workable way forward rather than forcing him out.

The tribunal also rejected the allegations that Mr Nowicki had been singled out by managers, including the shoe checks, break monitoring, the 9 July incident involving Mr Zoltan, and the allegation that false facts were given to occupational health. It found Mr Baker’s evidence credible on the safety shoe issue, accepted that the occupational health referral was objective, and held that the criticism of the report was a disagreement with opinion rather than proof of falsity. Applying section 26, the tribunal held that Mr Nowicki’s perception of bullying did not make the conduct harassment on the facts found.

The unlawful deduction from wages claim succeeded in the sum of £155.54 gross. The tribunal found that Mr Nowicki’s own calculation was unclear and that the respondent’s records pointed to a different figure, but after concluding there had been no written agreement to the pay change it accepted Clipper’s revised position and ordered payment of £155.54.