in person For the v Respondent — 2023

The claimant, a responsive repairs plumber, had a recurrent back condition. The tribunal found the respondent ought reasonably to have known he was disabled by 25 February 2020 and had actual knowledge by the occupational health report of 16 March 2020. It held that the 2 March 2020 absence meeting should have included a review period and that the respondent should then have implemented the occupational health recommendations for a lumbar support, a limit of 10 kg on lifting and pushing, assistance from a colleague if possible, and access to an osteopath. It also found later disability discrimination in the 30 June 2021 invitation to a second formal absence meeting, the exclusion from the employee WhatsApp group, the reduction to half pay from August 2021, and the failure from 1 December 2021 to consider amended duties recommended by the GP.

The tribunal held that the 13 July 2021 grievance was a protected act under the Equality Act because it complained in substance about failure to implement occupational health recommendations and unequal support, but it was not a protected disclosure because the claimant did not show a genuine and reasonable belief that the communication was made in the public interest. Victimisation was upheld only for the failures to progress the grievance and to facilitate a return to work; the allegations based on sick pay and notice pay were rejected. The tribunal treated the disability discrimination as conduct extending over a period, so the earlier 2020 acts were in time.

On dismissal, the tribunal found that the respondent's ongoing failure to deal with the grievance and return-to-work issues, together with the pay dispute, amounted to a repudiatory breach of the implied term of mutual trust and confidence. The claimant resigned on 25 January 2022 with notice expiring on 25 February 2022 and was constructively and unfairly dismissed. The protected-disclosure detriment claim and the automatic unfair dismissal claim under s.103A ERA failed.

On remedy, the tribunal awarded a basic award of £5,139 and £500 for loss of statutory rights, plus £15,000 for injury to feelings, £7,000 for personal injury, past and future earnings loss, £676 for medical expenses, £5,737.40 for breach of contract sick pay, £1,827.15 for notice pay, and £4,555.98 for holiday pay. It also made a 25% ACAS uplift on the relevant compensation, grossed up the award for tax, and made a preparation time order of £1,560, producing a total sum payable of £134,411.83.