ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111053/2019 Hearing by Cloud Video Platform on 7, 8, and December 2021, and February 2022; and Members’ Meetings on February, March and April 2022 Employment Judge: M A Macleod Tribunal Member: R Dearle Tribunal Member: A Atkinson A MacNab v Represented by Ms S Shiels Solicitor Stena Drilling — 2022

The claimant, a Barge Engineer on the Stena Carron, complained about the handling of his April 2018 appraisal, the performance improvement plan (PIP) that followed, his early disembarkation after the appraisal meeting, the handling of two grievances, sick pay, and alleged disability discrimination. The tribunal found that Mr Miller had prepared performance concerns in advance and that Ms Boston added broader and vaguer objectives to the PIP, but it did not accept that this showed a repudiatory breach of contract. It also accepted that the claimant was upset after the appraisal meeting and that the onboard medic later recommended early disembarkation and follow-up with his own GP.

The constructive dismissal claim failed. The tribunal accepted that some aspects of the respondent's conduct could have been better, including the way the PIP was handled and the call and email inviting the claimant to an Aberdeen meeting before he had seen his GP. It nevertheless held that Mr Miller was entitled to raise performance issues in the appraisal, that the PIP process was not itself a breach of contract, that the claimant's return to Inverness was arranged with family collection, and that the grievance process was moving forward once Dr Adeleke reported on 30 May 2019 that the claimant was fit to engage with it. The tribunal did not accept that the respondent had deliberately stalled the grievance to pressure the claimant into leaving, and it found that the claimant's lack of pay was a significant factor in his resignation.

The disability discrimination claim was dismissed as out of time. The tribunal held that the alleged discriminatory acts all arose by 6 April 2018, while the claim was not presented until 19 September 2019 and early conciliation did not begin until 19 July 2019. Applying the authorities it cited on time limits and just and equitable extensions, it found no evidence explaining the delay and no basis on which to allow the claim to proceed. It therefore did not go on to determine whether the claimant was disabled or to decide the direct discrimination allegations on their merits.

On pay, the tribunal held that the claimant had received MLC sick pay from 1 April 2018 for the full 16-week period ending 21 July 2018, and that he had not proved an unlawful deprivation of sick pay. At the start of the hearing the respondent admitted liability on the accrued holiday pay point, and the parties said that head of claim was expected to settle, so the tribunal made no decision on it and no award was made. Because none of the adjudicated claims succeeded, the judgment recorded that no tribunal award was payable.