Mr Rajat Kumar, Lay Representative For the v Respondent — 2017

The claimant, a bus driver, brought complaints arising from his February 2016 grievance about Mr Mota, later disciplinary action, sickness absence management, and the decision not to pay company sick pay after 25 January 2017. At the start of the hearing he withdrew the disability discrimination complaint. The tribunal then heard the religion or belief discrimination complaint, the victimisation complaint, the constructive dismissal claim, and the unlawful deduction from wages claim.

On religion or belief, the tribunal found that Mr Parry had carried out a reasonable investigation into the claimant's complaint about Mr Mota and that there was no evidence of any improper motive linked to the claimant being Sikh. It rejected the claimant's case that the written warning after the 13 November 2016 road traffic accident, the handling of the grievance, or the 24 January 2017 counter discussion were because of religion or belief. The tribunal also found that the different sanctions imposed on the claimant, Mr Hendricks and Mr Spencer were explained by the different seriousness of the incidents, not by religion or belief.

The tribunal rejected the victimisation claim. It accepted that the claimant's February 2016 complaint about Mr Mota could amount to a protected act, but found that the 3 November 2016 capability interview was triggered by the Oracle sickness absence records, which showed four absences in a rolling six-month period, rather than by the protected act. It also rejected the allegation that the grievance and disciplinary handling amounted to harassment or discriminatory treatment.

On constructive dismissal, the tribunal found that the respondent was in breach of contract when it withheld company sick pay from 25 January 2017, because the relevant terms allowed withholding sick pay only in defined circumstances after investigation, and the disciplinary suspension wording did not apply on these facts. However, it held that the breach was not fundamental or repudiatory, because the respondent was seeking to keep the employment relationship in place and to have the claimant engage with the disciplinary and grievance procedures. The claimant was therefore not constructively dismissed when he resigned on 15 March 2017. The tribunal upheld the unlawful deduction from wages claim in respect of the withheld company sick pay, but the amount of remedy was left to a later hearing.