Member McCullagh Tribunal Member Martin Mr G R Black v Limited (in Liquidation) and 1 other — 2021

The Tribunal found that the claimant's only contractual entitlement during sickness absence was statutory sick pay. It rejected his case that a second contract had been agreed in 2016 giving him 12 months' full pay during sickness absence, and found that previous payment of full pay for short absences did not create an entitlement to enhanced sick pay for long-term absence. It also found that any bonus was discretionary and that the decision not to pay a 2018 bonus was not exercised capriciously, given the business performance and financial position.

The respondents accepted that the claimant was disabled by reason of Chronic Lymphatic Leukaemia and that his wife was disabled. The Tribunal also found that the claimant was disabled by depression from June 2018, and that the respondents knew or ought to have known of that disability from 25 June 2019. The disability discrimination claims were dismissed. The Tribunal found that some alleged treatment had not occurred, some did not amount to less favourable or unfavourable treatment, and other treatment was not because of disability or did not relate to disability. The failure to pay enhanced sick pay was found to be unfavourable treatment because of absence arising from disability, but it was held to be a proportionate means of achieving the legitimate aim of protecting the financial viability of the business.

The unfair dismissal claim succeeded. The Tribunal found that cancelling the claimant's fuel card without consultation or notice was, by itself, a repudiatory breach of contract. It also found that, viewed cumulatively with the handling of the claimant's grievance, the conduct amounted to a breach of the implied term of mutual trust and confidence. The claimant had not affirmed the contract and resigned in response to the breach, so he was constructively dismissed and the dismissal was unfair.

For remedy, the Tribunal found that the claimant had taken reasonable steps to mitigate his loss. It applied a 10% uplift for unreasonable failure to comply with the Acas Code in certain respects, but restricted the compensatory award to the statutory cap of £60,000. Together with a basic award of £3,150, the total award was £63,150.