Mr J Clarke v – Trainee Solicitor GMS Engineering Limited — 2020

The tribunal held that Mr Clarke was disabled within section 6 of the Equality Act 2010 by reason of depression. It accepted that he had a mental impairment and found that, from December 2018 onwards, the effects were substantial and long-term, including low mood, difficulty getting out of bed, reduced motivation, problems with eating and personal hygiene, social withdrawal, and ongoing suicidal thoughts. It rejected the respondents' argument that his later return to work meant the statutory test was not met.

On the section 26 Equality Act claim, the tribunal found that Mr Gall had promised to keep the claimant's disclosure about his attempted suicide confidential, but later told Mr White and Mr Wilson about it. It also found that on 9 January 2019 Mr White said words to the effect that he did not know how he felt about working alongside the claimant with his suicidal thoughts. The tribunal held that both matters were unwanted conduct related to disability and that, applying section 26(4), they had the effect of violating the claimant's dignity and creating a humiliating or degrading environment. It accepted the claimant's evidence that he felt shocked, embarrassed, annoyed, and low, and that the incident set back his recovery. It rejected the claim so far as it depended on Mr Wilson's disclosure to his mother, holding that this was not something done in the course of employment for section 109 purposes.

On constructive unfair dismissal, the tribunal held that Mr Gall's disclosure of the confidential information was a fundamental breach of the implied term of mutual trust and confidence. It found that the claimant resigned in response to that breach by email on 1 March 2019 and had not affirmed the contract, despite the period of time between the January disclosure and resignation, because he was off sick and focused on recovery. The tribunal referred to Western Excavating, Malik, Morrow, Chindove, and the test for whether there had been affirmation in the circumstances.

For remedy, the tribunal awarded a basic award of £1,016, past loss of £8,226.68, future loss of £2,799.61, loss of statutory rights of £350, injury to feelings of £8,800, and interest of £1,172.13, producing a total award of £22,364.42. It rejected the respondents' arguments on mitigation and contributory conduct, and said there was no double counting between the unfair dismissal and Equality Act compensation heads. It assessed injury to feelings at the top of the lower Vento band.