Mr S Johnson v Robert (known as Robin) Webb and 1 other — 2022

The claimant was the sole on-site service/contracts manager for KOA's Kingsmead development. He had cancer treatment in 2015, after which the respondents kept his salary in place and temporarily absorbed some of his duties. For time-limit purposes, the tribunal treated the allegations as part of conduct extending over a period, then went on to decide the claims on their merits.

By 2018 the board was concerned about the claimant's timekeeping, his retention of information about CCTV and fob programming, and his practice of doing and charging residents for additional work during working hours. It sought HR advice, issued draft revised terms, and told him to stop programming fobs and doing private work on company time. The tribunal found this was a genuine attempt to regularise the employment relationship, not a repudiatory breach, and found that the claimant was given the draft contract to consider rather than being required to sign it immediately.

The constructive unfair dismissal complaint therefore failed because the claimant was not dismissed: he resigned on 18 March 2020 while off sick with work-related stress and anxiety, and the tribunal found no last straw or fundamental breach. The automatic unfair dismissal complaint under section 104 ERA 1996 also failed because the tribunal was not satisfied that he was dismissed for asserting a relevant statutory right, including the expense complaint he raised in grievance.

The disability discrimination claim under section 15 Equality Act 2010 failed. The tribunal accepted that the claimant was disabled by reason of cancer, but found no unfavourable treatment arising in consequence of disability: the performance management, requests for instructions on fobs and CCTV, and the performance improvement plan were driven by operational and performance concerns, not by his cancer. The harassment complaint failed for the same reason. The tribunal found the reference to cancer in the grievance outcome letter was an inept attempt to identify when performance changed, not an intended suggestion that disability caused poorer work, and it was not reasonable to characterise it as creating a hostile environment.

The direct age discrimination claim also failed because the claimant did not identify a comparator or facts from which age-based treatment could be inferred, and the retirement-related enquiries were found to be about succession planning for a sole employee. No monetary remedy was awarded.