in person For the v Respondent — 2017

Mr W. Lema began work for DHL Supply Chain Ltd in 2010 and was moved from warehouse work into administration, and later into the freezer section, because of his back condition. The tribunal preferred the respondent's evidence on the disputed factual issues and treated the case as turning largely on medical appointments, shift-change requests, grievance handling and whether the respondent ought to have referred the claimant to occupational health.

The unfair dismissal complaint was dismissed because the tribunal held that it had no jurisdiction: the claimant had not communicated any resignation until the tribunal claim form was received by the respondent on 5 April 2016, so the claim had been presented before the effective date of termination. Applying s.111 and s.95(1)(c) ERA 1996, the tribunal also said that, even if jurisdiction existed, no repudiatory breach of the implied term of trust and confidence had been proved and there was no constructive dismissal. The related dismissal complaint based on public interest disclosure failed for the same reason.

The disability discrimination allegations, including harassment and victimisation, were dismissed. Applying Igen v Wong and the reasonable-adjustments framework in ss.20 and 21 Equality Act 2010, the tribunal found that the pleaded incidents were not shown to be discriminatory: the 8 August 2015 confrontation with Jonathan Berks, the 4 September meeting clash, the October rest-day confusion, the 9 October and later leave requests, the 25 November allocation to ambient, and the grievance arrangements were explained by short notice, lack of documentary evidence, administrative confusion or individual decisions. The tribunal accepted that a referral to occupational health in November 2015 had not been made, but held that this was an oversight rather than a fundamental breach or unlawful discrimination.

The unlawful deduction from wages and breach of contract complaints failed because the claimant chose not to work from 23 December 2015 onwards although he was able to work, and his earlier sick pay for 12 October to 23 November 2015 was later paid. The only complaint upheld was unpaid accrued holiday pay, which the tribunal said was well founded but left to be quantified, if not agreed, at a later remedies hearing.