THE INDUSTRIAL TRIBUNALS

     	      CASE REFS:	4135/17
1733/18
CLAIMANT:			Anthony McCullagh

RESPONDENT:		Campbell Catering (NI) Ltd, t/a Aramark

DECISION 

The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:

Employment Judge:		Employment Judge Murray

Members:				Mr I Atcheson
					Mr E Grant

Appearances:

The claimant represented himself.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

THE CLAIM

1.	The claimant claimed disability discrimination, in the form of direct discrimination and failure to make reasonable adjustments; sex discrimination; and unfair dismissal, in the form of constructive dismissal.  The claimant alleged unlawful discrimination in the form of victimisation following the lodgement of his first claim form on 24 June 2017.  The claimant also alleged unlawful deduction from wages and breach of contract.

Amendment application

2.	At the outset of the hearing the claimant sought an amendment of his claim to include firstly, a victimisation claim and secondly a whistleblowing claim.

3.	Mr Hamill for the respondent agreed that a victimisation claim was contained in the second claim form, namely that the claimant alleges that he was forced out of his job because he had lodged a claim with the tribunal.  The date of presentation of that first claim form was 24 June 2017.  It appeared to be the case that victimisation on grounds of disability and sex discrimination was being claimed.  It was thus agreed that there was no requirement for the claimant to apply to amend to include that claim.

4.	The scope of the amendment in relation to the whistleblowing claim was set out in the part of the second paragraph of the claimant’s statement which states as follows:

	“And I also brought to Yvonne Powers attention that a member of staff was on benefits and only allowed to do 16hrs per week and he was doing more hours but only being put through for 16 per week.  I believe since I brought all these points to my Line Manager she was not happy with this.  And it had an effect in my future prospects with the company especially after my injury”. (sic).

5.	In a break prior the hearing starting, the claimant was given the opportunity to confirm the scope of the amendment sought with the assistance of a member of staff from the Labour Relations Agency.  The claimant provided the scope of the amendment in writing as follows:

	“The whistleblowing claim is.  When I started employment with Aramark the member of staff [redacted] was claiming Benefits of 16 hours per week, but the company was giving him more hours and then paying him at a later date, he was still receiving benefits.  I brought this to the attention of my regional manager Yvonne Power, during a phone call around Sept October time 2016.

	Anthony McCullagh” (sic)

6.	The claimant gave evidence in relation to whether it was not reasonably practicable for him to have presented a whistleblowing claim before the date of his statement which was written by him on 15 June 2018.  Mr Hamill cross-examined the claimant in relation to the time-point.

7.	The following decision on the amendment application was provided orally at the hearing:

		“(1)	This is the decision of the tribunal on the claimant’s application to amend his claim to include the allegations set out in paragraph 2 of his statement and clarified in the document produced by the claimant today following his consultation with the Labour Relations Agency at lunchtime.  This matter was referred to in the claimant’s statement and it was therefore raised by the Employment Judge at the outset of the hearing as to whether this formed part of the claimant’s claim, namely that he was treated detrimentally because of whistleblowing.

		(2)	The allegation was not contained in the first claim form.  The claimant makes a link between raising the issue concerned and subsequent poor treatment in a document in October which was sent to the tribunal following the response form being lodged by the respondent.

		(3)	Despite this, the claimant does not refer to it in his second claim form which was lodged following his resignation by letter dated 1 January 2018.  Even if the alleged detriment comprised a continuing act the last act was the resignation.  Time therefore expired on 1 or 2 April 2018 (2 January being the date the resignation was to take effect).

		(4)	The claim of whistleblowing contained in the claimant’s statement dated 15 June 2018 is therefore clearly out of time.

		(5)	The test for the tribunal is whether it was reasonably feasible for the claimant to bring it within the time-limit.  It is up to the claimant to convince us of this.  We are not persuaded to extend time in the following circumstances:

		(i)	Where the claimant raised a specific link in October 2017 in his document and, despite this, did not include it in his second claim form which was presented on 19 January 2018;

		(ii)	This case has been intensively case managed with six CMDs;

		(iii)	The claimant applied to amend his claim twice: the first amendment was agreed and the second amendment was rejected and prompted the second claim being lodged;

		(iv)	It is clear that the claimant had sources of advice and information which he availed of namely, a Citizens Advice Bureau, the Equality Commission and the LRA and he conducted his own researches on-line;

		 (v)	The claimant has been working in a job since January 2018 and has not been off sick in that period.  His current job involves paperwork.

		(6)	For all of these reasons we decline the amendment”.

THE ISSUES

8.	The issues for the tribunal therefore were as follows:

	(1)	Was the claimant at the relevant times disabled within the meaning of DDA in relation to his Achilles tendon injury and his depression/anxiety?

	(2)	Was the respondent under a duty to make reasonable adjustments, firstly in relation to the claimant returning to work during his recovery period from an Achilles tendon injury and secondly, in relation to the claimant returning to work whilst suffering from work-related stress, depression and anxiety?  If such a duty arose was there a failure to make reasonable adjustments in the following respects as outlined in the agreed statement of issues:

		“a.	Not facilitating the Claimant’s return to work when requested.

		b.	Not referring the Claimant to Occupational Health at an earlier stage.

		c.	Not holding a welfare meeting sooner than 14th September 2017.

		d.	Not concluding the Claimant’s grievance in a timely manner”.

	(3)	Was the claimant subjected to direct discrimination in relation to a comment at a meeting on 14 September 2017 with Mr Walsh when the phrase “bite the bullet” was used by Mr Walsh?  Did the failure to allow the claimant back to work amount to direct disability discrimination?

	(4)	Was there a sufficiently serious breach of the implied duty of trust and confidence, or any other repudiatory breach of contract which warranted the claimant resigning in response?  Did the claimant resign in response to any such breach or was it for another reason; did he resign without undue delay, and did that resignation thus amount to a dismissal which was unfair?  

	(5)	Was the claimant victimised on grounds of disability and/or sex on grounds of the protected act of lodging his claim form with the tribunal on 24 June 2017?

	(6)	Was there an unlawful deduction from wages in relation to loan repayments?

	(7)	Was there a breach of the claimant’s contract in relation to failure to pay four days’ company sick pay?

THE LAW 

9.	The Disability Discrimination Act 1996 (as amended) (“the DDA”) deals with discrimination on grounds of disability.

10.	The provisions on the definition of disability are set out at Section 1 and Schedule 1 of the DDA.  Under Section 2(2) of Schedule 1 an impairment can be treated as having a substantial adverse effect if it is likely to recur.  The “deduced effects” provisions, whereby the beneficial effect of medical treatment is discounted, are set out at Section 6 of Schedule 1.

11.	The provisions on direct discrimination and failure to make reasonable adjustments are set out at Sections 3A and 4A respectively of the DDA.  The provisions on victimisation are set out at Section 55 of the DDA.

	12.	The employer’s duty to make reasonable adjustments is outlined in the DDA at s4A and states, insofar as is relevant to these proceedings, as follows:

		“4A –	(1)	Where –

				(a)	a provision, criterion or practice applied by or on behalf of an employer, … 

	places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

13.	In the case of Rowan v The Environment Agency [2008] IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached.  The steps relevant to this case, are as follows:-   

(i) 	Identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;

(ii) 	Identify the non-disabled comparator (where appropriate);

(iii) 	Identify the nature and extent of the substantial disadvantage suffered by the claimant.

14.	If the duty to make reasonable adjustments arises the tribunal then goes on to determine whether the proposed adjustment is reasonable in the circumstances to prevent the PCP placing the claimant at that substantial disadvantage.  This is an objective test.
 
15.	The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA and in subsequent authorities, apply to these proceedings.  The claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen and that it has been breached.  If the claimant proves such facts the burden shifts to the employer to prove either, that no such duty arises or, that it has not been breached.

16.	It is for the claimant to prove facts from which a tribunal could conclude that an act of direct discrimination on grounds of disability occurred.  If he does so, the burden of proof shifts to the respondent to provide an untainted explanation.

17.	Detriment is determined using the Shamoon test which is whether a reasonable worker would, or might take, the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of being disadvantaged.

18.	The Sex Discrimination (Northern Ireland) Order 1976 (as amended) renders various types of sex discrimination unlawful.  At Article 3 the provisions on direct sex discrimination are set out.  At Article 6 are set out the provisions for victimisation.  It is for the claimant to prove detriment and it is for the claimant to prove facts from which we could conclude that an act of sex discrimination has occurred.  If the claimant proves such facts the burden of proof shifts to the employer to provide an untainted explanation.  

19.	The initial burden in the constructive unfair dismissal claim is on the claimant to prove that he was dismissed in that his resignation should be treated as a dismissal.  

20.	The case of Western Excavating  v  Sharp Limited [1978] IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

(i) 	There must be a breach of contract by the employer;

(ii) 	The breach must be sufficiently serious to justify the employee resigning;

(iii) 	The employee must leave in response to the breach and not for some other unconnected reason; and

(iv) 	The employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise he may be deemed to have waived the breach of contract. 

21.	As regards the delay point there is no fixed time within which an employee must make up his mind to resign in response to a breach of contract; the surrounding circumstances are key.

22.	Under the “last straw” principle, an employee can be justified in resigning following a relatively minor event if it is the last in a series of acts one or more of which amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. (Omilaju [2005] IRLR 35 CA). 

23.	The case of Malik [1997] 3 All ER 1 (HL) confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee.  If the employer breaches that term, it can amount to repudiation of the contract.

SOURCES OF EVIDENCE

24.	The tribunal heard evidence from the claimant on his own behalf together with evidence from Ms Montgomery, a Tesco Manager who attended on witness summons at the request of the claimant.

25.	The tribunal heard evidence for the respondent from: Mrs Power, Regional Manager; Mrs Cooke of HR; Mr Walsh, Regional Support Manager; Mr McAuley, Operations Manager; and Mrs Mackey of HR.

26.	The tribunal had regard to the witnesses’ written statements (save for Ms Montgomery who gave her evidence-in-chief orally); to the oral evidence of the witnesses; and to the documentary evidence to which the tribunal was referred.  The tribunal found the following principal facts proven on a balance of probabilities and reached the following conclusions having applied the law to the facts found.

Credibility and Reliability of Witnesses

27.	We had concerns about the credibility and reliability of the evidence of Ms Cooke, Ms Power and Ms Montgomery in relation to the Tesco manager comment issue as set out in this decision.

28.	We also had concerns about the claimant’s reliability and credibility in relation to his exaggeration of the continuing effect of his Achilles tendon injury.  He was also unreliable and somewhat evasive in relation to when he applied for his new job and on the nature and extent of his involvement in that process.

29.	The evidence about the timing of his application for the claimant’s new job was elicited with difficulty from him in that he only produced relevant documents in that regard during the course of the tribunal hearing.  Whilst the claimant initially stated that he applied for the job in December or around Christmas time and that it was a very short process, the documents that the claimant belatedly produced showed that the process must have started, at the latest, in late October 2017 and was much more involved.

FINDINGS OF FACT AND CONCLUSIONS

30.	The claimant was employed as a Chef Manager by the respondent from 11 August 2016 until the date of his resignation by letter of 1 January 2018.  The claimant stated a new job on 2 January 2018 earning a higher salary than he had earned with the respondent.

31.	The claimant’s job involved working for the respondent on a contract they had in a 24 hour canteen in a Tesco distribution centre.  His job also involved him in dealing with paperwork in an office adjacent to the industrial kitchen/deli.  It was common case that the respondent was very busy dealing with several large contracts (one of which was the Tesco contract) and the respondent had at the relevant time a shortage of staff.

32.	The claimant sustained a rupture to his Achilles tendon whilst playing sport on 
12 January 2017 and this meant that he was, for an initial period, in plaster on crutches and subsequently in a therapeutic knee-high ‘Vacuped’ boot.  It was common case that the claimant’s mobility was adversely affected by the injury for a period.

33.	The claimant’s sick lines (“fit notes”) fall into the following categories:

	(1)	The claimant submitted his first fit note in relation to this injury and it was dated 6 February 2017 and stated he was not fit for work due to the Achilles tendon injury.  

	(2)	The claimant subsequently submitted five fit notes (the first of which was dated 21 February 2017 and the last dated 6 June 2017) on which the claimant’s doctor ticked a box beside a pro forma comment: “May be fit subject to comments below”.  No specific adjustments were indicated by the doctor nor were comments made in the relevant box on the fit notes in that first period of absence. 

	(3)	The claimant submitted fit notes from 3 July 2017 until his resignation and all of the fit notes in that second period of absence cite ‘work-related stress’ and certify him unfit to work at all.

34.	The claimant was thus out of the workplace from the date of his injury in 
mid-January 2017 until his resignation in January 2018.  The first period of sickness absence was because of the aftermath of the Achilles tendon injury (January to
July 2017) and the second period of sickness absence was primarily in relation to the claimant’s depression (July 2017 to January 2018).

The first period of the sickness absence

35.	The claimant’s case is that during this first period of absence (when the claimant was off sick with the Achilles tendon problem and the doctor had ticked the box saying he may be fit subject to some accommodation) he should have been allowed back to work with appropriate adjustments.  The period in issue for that element of the disability discrimination claim is therefore from 21 February 2017 (being the date of the first fit note when it is certified that he “may be fit”) to 3 July 2017 when he was certified to be completely unfit for work.  The impairment in issue is the tear in the claimant’s Achilles tendon.

36.	The first issue in relation to the first period involves an assessment of firstly, whether the claimant suffered from a disability within the meaning of DDA; secondly, whether the duty to make reasonable adjustments arose; and thirdly, whether any such duty was breached.
	
37.	We do not accept the claimant’s evidence in tribunal which was that his mobility continues to be seriously affected due to his Achilles injury and that it comes and goes to the extent that it should be regarded as having a substantial adverse effect.  The claimant’s point was that the medical evidence shows that he had only 90% function recovered by August 2017 and he stated that he suffers intermittent pain and he has difficulty putting on his socks. The primary reasons for our conclusion on this are: 

	(1) 	The medical evidence does not support the claimant’s account; 

	(2) 	The claimant started his new job on 2 January 2018 and that new job involves driving round several sites in Northern Ireland, meeting with trainees, observing them working in canteens together with completing paperwork at home.  

38.	The claimant’s duties are therefore incompatible with the level of difficulty outlined by him.  We are not satisfied that he satisfies the test for disability during the first period when he was off work due to the Achilles tendon injury.  The reason for this relates to two elements of the statutory test which the claimant does not satisfy namely the substantial adverse effect and the long term effect of the injury on day-to-day activities.  There is no doubt that during the period when he was on crutches and using the boot that there was an adverse effect on his mobility.  Even if the claimant met the test of substantial adverse effect during that period the Achilles tendon injury ceased to be a major feature (according to the medical evidence) by 
7 August 2017.  At best therefore the claimant can show that there was an adverse effect on his day-to-day activities from the date of the injury in late January until the beginning of August 2017 and during that period his physical condition improved.  Whilst it might therefore have had a substantial adverse effect on day to day activities initially, it improved steadily until he regained 90% of the function by the time of the medical examination on 7 August 2017 i.e. less than seven months after the injury.

39.	As the claimant has failed to meet the test for disability in relation to the Achilles tendon problem during the first period (February-July 2017), there was no disability within the meaning of the DDA and therefore no duty to make reasonable adjustments arose.  There was also therefore no direct discrimination.  That aspect of the claimant’s DDA claim therefore fails.

40.	Even if the claimant had met the test for disability in the first period, our view on the issue of the adjustments is that he would nevertheless have failed in this part of his DDA claim.  The adjustment in issue by the time of the tribunal was that the claimant should have been allowed to return to work to carry out at least one and a half hours’ paperwork each day.  This was the respondent’s assessment of the proportion of the claimant’s job which involved paperwork.  The claimant stated that his job involved approximately two hours of paperwork in an office per day but that even the lesser period should have been given to him.

41.	The two main points made by the respondent on this aspect of the claim were:

	(1)	That everyone on site was required to wear personal protection equipment (PPE) which includes safety boots and, as the claimant was unable to wear safety boots, he could not be allowed on site.  

	(2)	That, whilst the claimant might have been accommodated with a car parking space close to the door to the building, the access to the office required him to walk through a corridor which was the access point for the canteen and the warehouse and therefore involved deliveries and people going in and out of the canteen.  This often led to spillages and water and mud on the floor rendering the floor slippery.  

42.	There was no dispute over the fact that the key part of the floor in the corridor could be slippery because it was wet and/or muddy.  The claimant agreed with Ms Power’s description of the area as set out in her statement:

	“… the possibility of floor surfaces being slippery, for him to get access to corridor, which has the kitchen, office and staff toilets off it (the back doors area are a double set which are the main delivery area also, the corridors area smooth and shiny and can be dangerous with the smallest amount of water which easily can off cage wheels from deliveries”.  (sic).

43.	The claimant’s point on this was that any health and safety or risk in that regard applied to everybody and should not have been used as a reason to keep him off site.  During the period when the claimant was wearing the therapeutic boot however the claimant agreed that his mobility was adversely affected.

44.	In our judgment the respondent was entitled to take a conservative view of the risks for the claimant in circumstances where he was using a boot, this clearly had an adverse effect on his mobility, and there was the real risk that he might slip and injure himself.  We can understand why the respondent’s managers were very wary about letting the claimant back on site in these circumstances and this is aside from the issue of the number of hours of paperwork or the wearing of PPE.

45.	One of the claimant’s complaints was that there was a failure to conduct a risk assessment on him.  The claimant attended a training event on 30 March 2017 whilst still in his boot and he agreed in evidence that his mobility was clearly affected and that he was in such discomfort that he had to remove his boot and rest his leg on a chair.  Both Mrs Power and Mrs Cooke observed this.  Mrs Power spoke to the claimant and it was agreed between them that the claimant would come back to her when his mobility improved.  Both Mrs Cooke and Mrs Power were entitled to consider their observation of the claimant’s difficulties at the training day as one of several matters in their subsequent assessment of whether a return to work was feasible.

46.	In the email chain with managers between February and April 2017 the claimant himself stated on numerous occasions to Mrs Power that he had problems with mobility and it was left that he was to get back to her when he improved.  We do not fault Mrs Power for waiting for that.  We also do not find that managers had to do a formal risk assessment because she was entitled to assess, from her own knowledge, from what the claimant was telling her and from the fit notes, as to what was possible or not in that workplace especially given that PPE was a requirement and she knew the risk of the corridor being slippery.

47.	Given that this aspect of the disability discrimination claim fails, the only remaining relevance of the failure to let the claimant back into the workplace during the first period (namely from 21 February 2017 until 3 July 2017) is in relation to whether or not that amounted to, or contributed to, a repudiatory breach of contract which ultimately warranted the claimant resigning in response to it.  We refer to this in relation to the unfair dismissal aspect of the claim below.

The second period of the sickness absence

48.	The claimant’s case is that because the employer refused to allow him back to work his depressive illness recurred (the claimant had suffered from depression in the past) and the claimant was, from 3 July 2017, unfit for work due to stress.  

49.	It is clear from the medical evidence that the depressive illness which the claimant had suffered from in the past recurred and the claimant’s point was that this was caused because he was out of the workplace.  This led to sick lines from the doctor certifying the claimant to be unfit from 3 July 2017 and he remained on sick lines which stated that he was completely unfit for work until he resigned in January 2018.  Whilst the Achilles tendon issue was noted on the sick line of 3 July 2017 along with work-related stress, the remaining sick lines cited work-related stress only and on none of them was the box ticked to suggest that adjustments could be considered.  It is significant that the fit notes were completed by the claimant’s GP.

50.	As regards the claim that there should have been adjustments made for him during this second period, the points made by the claimant on this were that the respondent should have supported him and should have sent him to Occupational Health to see if he could go back to work.

51.	The first issue is whether or not the claimant was disabled within the meaning of DDA in relation to his depression during that second period.  It was uncontested that the claimant was on anti-depressant medication throughout that period (the first prescription date was 3 July 2017) and that that medication was increased in the period before the tribunal hearing.  The claimant has therefore been on this medication for well over a year.  Neither of the psychiatrists’ reports however address the issue of how the claimant would have been affected by the impairment without his medication.
52.	We find that the claimant falls within the definition of disability on the basis of deduced effects (ie, discounting the effects of the medication) on the basis that, at the relevant time it was likely to last one year or more and on the basis of a recurring condition so he satisfies the substantial element and the long-term element.  The impairment in issue is depression with associated anxiety.  Mr Hamill rightly conceded that it was open to the tribunal to make such a finding in relation to this period and this medical condition.

53.	The next issue involves an assessment of firstly, whether or not the claimant was treated less favourably on grounds of his condition (direct discrimination) and/or, secondly, whether the duty to make reasonable adjustments arose because a PCP put the claimant at a substantial disadvantage due to this impairment and the respondent failed to make any adjustments which would have been reasonable in the circumstances.  In addition the claimant alleged victimisation because he had lodged a claim with the tribunal on 24 June 2017.

54.	A key event relied upon by the claimant was the “bite the bullet” comment which was made during the absence review meeting on 14 September 2017 with
Darren Walsh his line manager.  Mrs Cooke of HR was also in attendance at that meeting.

55.	In the course of that meeting on 14 September 2017 when there was discussion about how the claimant might return to work.  Mr Walsh stated that there were two options namely, firstly, a “softly softly” approach where he would go back gradually or, secondly, that he could jump in and “bite the bullet” and go back in one go.  The claimant characterised this as Mr Walsh taking a dismissive approach to his depressive illness by telling the claimant that he should bite the bullet and go back to work.  

56.	We do not accept the interpretation placed by the claimant on that conversation.  We accept Mr Walsh’s evidence that it was a passing comment in the context of describing possibilities about returning to work as this was what the claimant wanted to do despite the import of his GP’s fit notes which continued to certify him as unfit.  It is not the case that Mr Walsh was putting the claimant under pressure to return to work.  The fact that the notes of that meeting simply record that a phased return was discussed support Mr Walsh’s contention that the comment was made innocently in passing.  At no point in either the internal process nor in tribunal did Mr Walsh deny making the comment.  We therefore reject the claimant’s case that this comment amounted to disability discrimination and/or breach of contract.

57.	The second aspect of this part of the disability discrimination claim is in relation to reasonable adjustments in this second period.  The first issue is to identify the PCP placing the claimant at a substantial disadvantage due to his impairment of depression and anxiety.  The PCP relied upon was the failure to refer him to OH and the alleged failure to support him.  The disadvantage which the claimant seems to identify is that he thus could not return to work, this meant that he was under increasing pressure because he was not earning his salary and he then developed financial difficulties.  

58.	We find that the failure to refer the claimant to OH during the second period did not cause the disadvantage relied upon in circumstances where the claimant’s own doctor was certifying him unfit without qualification.  A non-disabled comparator would likely have been treated the same and the claimant has thus failed to show less favourable treatment.  We are also not convinced that the claimant has shown this to be a detriment.  The claim of direct discrimination therefore fails.

59.	The claimant was out of the workplace because he was certified to be unfit due to his depressive illness by his doctor.  In these circumstances we do not regard it as a reasonable adjustment to facilitate his return to work to refer him to Occupational Health.  We do not accept the claimant’s case that he was pressing for an Occupational Health referral in the meeting with Mr Walsh because:

	(1)	The notes of the meeting of 14 September 2017 do not mention this, as all references are to the claimant’s GP assessing his fitness.

	(2)	The claimant does not mention any OH referral complaint in his letter of 16 September 2017 in which he complains about several aspects of that meeting.

	(3)	It was common case that the claimant in the meeting stated several times that he would not return to work until compensated by the respondent for loss of wages.

	(4)	If the claimant had pressed Mr Walsh for an OH referral it would have been at odds with the import of his own GP’s sick lines.

DDA Findings

60.	In summary the disability discrimination claim fails in the first period because the claimant does not meet the test for disability and fails in the second period because the claimant has not shown that there is a reasonable adjustment that would have addressed any PCP that put him at a substantial disadvantage.  Referring the claimant to Occupational Health would not have rendered him fit for work in circumstances where he was getting sick lines from his own doctor certifying him unfit to work.  If it had been the case that the claimant was pressing to return to work the GP’s fit notes would have reflected this by the GP ticking the relevant box as the GP had done before.

61.	In addition the ‘bite the bullet’ comment made by Mr Walsh did not in the circumstances amount to adverse treatment on grounds of the claimant’s disability nor (insofar as this was the claimant’s allegation) did it amount to harassment.  That aspect of the claimant’s case therefore fails.

62.	We do not find a lack of support of the claimant and reject the claimant’s case that there was delay in arranging the absence review meeting and that that amounted to discrimination.

63.	Between February and April 2017 the claimant’s mobility was adversely affected.  At the beginning of May the claimant told Mrs Power that she was starting to get depressed.  In May Mrs Cooke was trying to arrange to meet the claimant and the venue was changed at his request to Dunsilly House.  An OHS appointment was arranged for 19 June 2017.  

64.	Having assessed all the evidence during the relevant period we do not accept the claimant’s case that there was a lack of support of him by managers.

Grievance process

65.	The first grievance process dealt with a grievance which was raised in several emails from the claimant during the period 14 June 2017 to 4 August 2017.  Mr Walsh on 24 August 2017 contacted the claimant to try to arrange an absence review meeting which ultimately took place on 14 September 2017.  A written outcome was given on 19 September 2017 by Mr McAuley.

66.	A second grievance process began following the claimant’s meeting on 14 September 2017 with Mr Walsh, centring on the complaint about the ‘bite the bullet’ comment.  From the end of September until November there were numerous emails in relation to the second grievance hearing and the appeal hearings in that there were several attempts to arrange these hearings.  There were reasons on both sides for the hearings not taking place earlier in that the claimant was not available at various points and he was also sick with the flu.  In addition there were venue issues and diary issues with the relevant Managers.  Ultimately the second grievance hearing took place on the telephone (by agreement) on 9 October 2017 and there was an outcome to that on 23 October 2017.

67.	It appears from the documents that there were two appeal hearings listed for 14 and 16 November 2017 which did not take place because of the claimant’s ill-health and the claimant ultimately resigned before the appeal hearings could go ahead.

68.	In summary, we are satisfied in the circumstances that there was no undue or unjustifiable delay in dealing with the claimant in arranging meetings or in responding to him.  

69.	It is clear from the emails and sick lines that by the beginning of July the claimant was not fit for work at all due to the relapse in his depressive symptoms.  The recurrence of the claimant’s depression was an unfortunate consequence of his inability to attend work but we do not find the respondent to be at fault for that relapse in the claimant’s health.  

Victimisation claim

70.	The claimant’s claim was that he was victimised following the protected act of lodging his first claim of sex and disability discrimination with the tribunal.  The date that claim was lodged was 24 June 2017 and the claimant’s allegation was that lodging that claim ‘signed his death warrant’ with the respondent.

71.	The issue for us is whether the claimant has proved facts from which we could conclude that any adverse acts which occurred after 24 June 2017 amounted to less favourable treatment on unlawful grounds in that managers were consciously or unconsciously motivated to treat the claimant adversely because he had lodged his claim with the tribunal.

72.	We reject the claims of victimisation and our principal reasons for so finding are:

(1)	We accept the respondent’s account for the acts and events complained of by the claimant and we do not find any taint of discrimination.

	(2)	The claimant resigned because he obtained a new job following a long period of sickness absence for which the respondent was not culpable.

	(3)	There was no undue delay nor any material flaw in the procedures and processes preceding the claimant’s decision to resign.

The decision to resign

73.	The claimant resigned by letter of 1 January 2018 with effect from 2 January 2018 which was the day that he started his new job.
	
74.	In the tribunal the claimant pointed to two particular events which he stated devastated him and caused him to resign namely;

	(1)	The ‘bite the bullet’ comment which occurred on 14 September 2017; and 

	(2)	The letter following that on 19 September 2017 when Ms Cooke of HR stated:

	“I do not believe that there is any merit in arranging either a further absence meeting or an Occupational Health Referral at this time, given that you remain unfit for work.  I would request that you contact us when you feel fit enough to discuss a return to work and attend either of these meetings following consultation with your doctor”.

75.	Ms Cooke in her statement for this tribunal gave the following reason for deciding not to refer the claimant to Occupational Health:

	“At his meeting with Darren Walsh on the 14th September 2017 Tony did mention that he was suffering from depression.  At that point we would normally have referred him again to OHC for that reason – however, at this meeting he quite clearly stated several times that he would not be returning to work until he was compensated by Aramark and I was satisfied that in light of his ongoing ill health and what he was communicating to the company, a referral at that time would serve no purpose”.

76.	The claimant in evidence also stated that he felt that the respondent no longer wanted him in the company and that he was being managed out.  He stated that he then reconsidered and decided that he would stay with the company as he was hoping that he had a future.  Mr Hamill argued that this amounted to the claimant waiving any breach of contract as he no longer regarded the ‘bite the bullet’ comment of 14 September 2017 nor the prior events as repudiatory breaches of contract.

77.	The claimant gave very unsatisfactory evidence in relation to the timing of his decision to leave the company.  He was on sick leave and stated that he was therefore confused about dates and yet during that period he was able to apply for a new job, to arrange and rearrange an interview, to attend for that interview, to gather the paperwork for the required vetting process and to draw up a lengthy letter of resignation to the respondent.

78.	Mr Hamill raised a point about causation (ie what caused the claimant to resign when he did) arguing that the claimant resigned by letter of 1 January because he was due to start his new job the next day and that it was nothing to do with any previous adverse events.  

79.	The claimant’s behaviour in pursuing the grievance and pursuing the emails after the ‘bite the bullet’ comment do not indicate to us someone who felt that his contract has been breached to the extent that he could no longer work for the company.

80.	In the claimant’s resignation letter he gave 18 grounds for his resignation.  That letter states as follows:-

			“01/01/2018

		Dear Mrs Cooke

		I am writing to inform you that I am resigning from my position of Chef Manager with immediate effect.  Please accept this as my formal letter of resignation and a termination of our contract.  I feel that I am left with no choice but to resign in light of my experiences regarding the way I have been treated by this Company.  I will be asking the Employment Judge to add on to my other complaints (Constructive Dismissal) for the following reasons.

		a) 	Refusing to let me back into the workplace, or even attempting to make any reasonable adjustments in connection with my health.

		b) 	Not upholding any of the grievances I have put forward to the company over the period of my incapacity.  On the contrary all the meetings felt like I was at a disciplinary meeting, there was never any 2 way conversations about how can we get you back into the workplace.

		c) 	Not carrying out proper investigations in to my grievances.  The same manager doing the grievances.

		d) 	Threatening me with disciplinary action because I had complained about the situation that I was in.  Trying to dishearten me, and to get me to leave the company, I was being intimidated and victimised because I had put in ET1.

		e) 	Not looking after my health and well being by refusing to send me to OH for a health assessment for depression and anxiety.  No confidential helpline sent out to me.  No help was offered to get me back on my feet and into the workplace.
	
		f) 	Only having one welfare meeting in a period of a year, and at that meeting I was told “to bite the bullet and get back to work”.

		g) 	Not investigating my grievance about members of my staff calling me “gay”.  I feel my reputation has been damaged.

		h) 	Two grievance appeals have not been actioned yet and arranged in the proper time.

		i) 	Not taken my grievances seriously by nominating a bookkeeper to hear them and I believe she would not have the experience to action these properly.  Aramark is large enough company to have an experienced managers deal with my appeals.

		j) 	Yvonne Power, a Regional Manager actively telling staff not to be in contact with me.  It meant that I could not ask anyone to come to my grievance meeting.  In short, the company took away my right to be accompanied by another employee at a grievance meeting.

		k) 	I complained about Holly Mackey threatening to discipline me, and she was at my grievance meeting taking notes, which was biased towards me.  She also refused to send me the handwritten notes.

		l) 	Not receiving most of the handwritten notes following my grievances for me to check and sign.

		m) 	I complained about the way the grievance manager Danny McCauley carried out his investigation, and following that he was also the one put in charge to investigate the grievance about himself.  Aramark is a big enough company to have lots of managers to use someone who is not already involved and have a unbiased opinion.

		n) 	My work related stress and depression became [sic] under health and safety act and my employer had a duty of care towards me.  The duty of care I have received was to tell me “to bite the bullet and get back to work” and to refuse sending me to OH.  My last contact letter I received on 19 September 2017 and it told me there was no merit in arranging a Occupational health report.  There has been absolutely no contact about trying to get me back into the workplace since then.

		o) 	The line manager Darren Walsh’s deliberately lying in the notes about his words “to bite the bullet” by not mentioning it.

		p) 	At the case management discussion I was intimidated by the presence of Holly Mackey, HR officer.

		q) 	Not receiving my company sick pay during my sickness.

		r) 	Failing to decide on appropriate action with my grievances in a timely manner.  My first grievance took 100 days.

		Because the Management structure in Aramark catering never put any commitment and effort to try and help me in my recovery process, and because they never tried to accommodate me back into the workplace with reasonable adjustments, I am put in the position of resigning and into defending my claims.  I would not be here today if my employer supported me in my situation and didn’t go against me with their actions.  

		Anthony McCullagh”

81.	In tribunal the key points relied upon were the ‘bite the bullet’ comment on 14 September 2017 and the content of the letter of 19 September 2017 from Ms Cooke set out at paragraph 74 above.

82.	It was the claimant’s case in addition that the following matters cumulatively amounted to a breach of the implied term of trust and confidence and warranted his resignation.  We reject the claimant’s case in this regard and set out the matters and our findings on them below.  The points where we find shortcomings on managers’ part do not on their own or cumulatively amount to any repudiatory breach of contract and they did not justify the claimant resigning in response.

	(1)	The failure to make adjustments to enable him to return to work during his recovery from the Achilles tendon injury.  We find that the managers were justified in waiting until the claimant’s mobility improved.  The chain of emails do not show the respondent to be unresponsive to the claimant and we find that there was no undue or unjustifiable delay in dealing with him.  

	(2)	That the phrase ‘bite the bullet’ was used by Mr Walsh at the meeting on 14 September 2017.  We reject the claimant’s account and interpretation of that conversation as set out above.

	(3)	That the claimant was required to work for one day due to his Achilles injury because his employer could not get anyone to cover this role.  We do not accept the claimant’s evidence on this.  He came into work and, of his own volition, worked on on 13 January 2017.  Mrs Power organised cover from 2.30 pm that day until 6.30 pm.  The claimant’s texts that day are at odds with his claim that he was forced to work as they show that he voluntarily went in and worked.  Mrs Power also gave evidence denying this and she made reference in her evidence to his previous problems with his knee when he would assess himself whether he was able to go into work.  

	(4)	That he did not receive four days’ company sick pay.  The claimant was not entitled to this under his contract as he had not acquired sufficient service at the relevant time.  (See paragraph 102 below).

	(5)	That staff were told not to contact him by Mrs Power.  We accept Mrs Power’s evidence which was that the Acting Manager contacted her to complain that the claimant was ringing his staff and questioning them during their shifts stating: 

			“Anthony Mccullagh phoned into the kitchen today and started to ask questions he caught me off guard as I wasn’t answering my mobile to him.  I informed him that I am not allowed to engage in conversations with people who are on Sick leave accept if it’s a call about returning to work or renewing a sick line.” (sic)

		It was in this context that she told the Acting Manager that he should not be taking calls from the claimant unless it was to do with his sick leave. We do not find this to amount to a breach of contract and it was justifiable in the circumstances.

	(6)	That he was not given the right to be accompanied at a grievance hearing in July 2017.  

		The claimant decided himself not to bring anyone to the grievance meeting stating in his email of 5 July 2017:

		“Also as all my staff have been told not to contact me about anything, the means in effect that Aramark is not letting me bring anyone with me to my grievance meeting which is also against the Acas code of practice.”  

	(7)	That there was no investigation of the “gay” comment allegation raised by the claimant in his grievance email of 16 September 2017 when he also complained about ‘bite the bullet’ comment on 14 September 2017.  It is clear from the documents that managers could not investigate that at first because the claimant refused to say who he alleged made the comment, or who told him about it and, when he did finally give that information, the relevant people had left the organisation and could not be questioned.  In these circumstances, this did not amount to, or contribute to, a breach of contract and, of itself, was not enough to warrant the claimant resigning.

	(8)	That his job was advertised on the website when he was still employed.  The advertisement was placed on 10 October 2017 and was clearly an advertisement for a temporary role.  We accept the respondent’s managers’ evidence which was that this was for someone to fill in while the claimant was off sick as the arrangement that the Acting Manager fill in for him was not a permanent arrangement given the general shortage of staff.  There was nothing untoward about the fact, and timing, of this advertisement.  Indeed the claimant ultimately accepted this in evidence in tribunal.

	(9)	That there was a conflict of interest with Mr McAuley investigating all of the claimant’s grievances.  We do not regard this as a flaw in procedures in this case.  Even if this did constitute a flaw it was not sufficiently serious to warrant the claimant resigning in response.

	(10)	That the SSP1 was not provided in time so that he could put in a claim for ESA.  It is clear from the documents that the claimant’s managers pursued this point immediately after it was raised by the claimant with them in August with the Payroll Department which is based in England and the relevant document was sent in early September 2017.  When the claimant was paid his benefits in November 2017 they were backdated.  This clearly gave him cash flow problems for a period but this was not sufficient, on its own, to warrant his resignation two months later.  In addition the managers whom the claimant accuses of wanting to get rid of him passed the query in a timely way to the relevant office in England.  We find that this did not amount to, or contribute to, any breach of contract.

	(11)	That Ms Mackey ignored the claimant after a CMD at the tribunal on 16 October 2017.  Ms Mackey denied the claimant’s account of this encounter.  It was the claimant’s case that this was indicative of the respondent’s attitude towards him.  We believe Ms Mackey on this point primarily because the claimant specifically mentions the CMD in his letter of resignation at paragraph (p) but makes no mention of this allegation.  The fact that the claimant belatedly and emphatically raised this allegation reflected adversely on his reliability as a witness.

	(12)	That the deduction of the loan repayments was unlawful.  See our findings on this below.  As the claimant had agreed in advance to repay any loan in instalments and had done this in writing then it was not an unlawful deduction and the claimant in tribunal confirmed that he actually still owes the respondent the balance.

	(13)	That the appeal process was not carried out in a timely manner.  The documentation shows that there were reasonable attempts to arrange this bearing in mind the reasons for the dates of meetings.  The claimant relied heavily on the paragraph in the grievance procedure which states as follows:-

		“You will be notified of the decision, in writing, normally within ten working days of the meeting, including your right of appeal”. (Emphasis added).

In the circumstances in this case we are satisfied that there was no undue or unjustifiable delay in dealing with the grievance.  The reason for any delays were related to both the claimant and the relevant managers and we do find any of them to be culpable for any adverse delay.  

	(14)	That the claimant was not referred to Occupational Health for his depression.  We do not find the respondent culpable for this for the reasons set out at paragraph 59 above.  It therefore did not amount to, or contribute to any breach of contract.

83.	Causation is a key issue in this case in that on the claimant’s evidence what caused him to resign was getting another job.  In circumstances where the claimant was clear in his evidence that he had decided at one point that, despite any devastation or annoyance at the bite the bullet comment and the letter of 19 September, he had decided to stay with the employer, we find this to amount to a waiver of any breach of contract.  To be clear, we do not find those two events to constitute a breach of contract in any event in view of the facts we have found.

84.	In summary our finding is that there was no breach of contract nor a last straw event close enough in time to the resignation to allow the claimant to discharge the burden of proving a breach of contract warranting his resignation.  The claimant resigned because he got a better paid job and we therefore find that the cause of the resignation was the fact that the claimant secured a better paid job.  We reject the claimant’s case that the ‘bite the bullet’ comment on 14 September 2017 and the letter of 19 September 2017 featured in his decision to resign over three months later as his clear evidence was that, whatever his feelings were about those matters, they had subsided to the extent that he had decided that he would stay with the respondent.

Threat of disciplinary action

85.	The claimant complained about the response of managers to his email of 22 June 2017 when he stated:  “As I said in my last email, which as usual Aramark has not even got the manners to acknowledge … .”   

86.	The Company’s response from Ms Mackey of 22 June 2017 included the following:-

“Please note your comment about the company not having “manners” to acknowledge your email is not appropriate and I would advise you to carefully consider the tone and content of future emails.  Email correspondence is acknowledged at the earliest opportunity and we will ensure that your complaints are addressed within the grievance procedure.  Should you continue to express your dissatisfaction in inappropriate terms, you should be aware that it may warrant consideration under the disciplinary procedure.  I trust this will not be the case going forward”.

87.	We do not find this response to be unreasonable as it was clearly an attempt to ‘nip in the bud’ an issue with the tone of the claimant’s correspondence as a whole.  We therefore find that it did not amount to nor contribute to a breach of contract.

Tesco Manager comment

88.	The issue about the Tesco Manager comment emerged after the claimant obtained documents in preparation for tribunal in that on one of the emails dated May 2017 Mrs Cooke had written in pen: “client does not want him back”.  The client was Tesco and Ms Montgomery of that company gave evidence to us at the claimant’s request.  Ms Montgomery stated in evidence that she could not recollect any such conversation and Mrs Power and Mrs Cooke stated that they could not recollect any such conversation.  

89.	We were dissatisfied with their evidence about this point as it was equivocal and unconvincing and no convincing explanation was given for that phrase appearing on the document.  We therefore accept that Mrs Cooke’s handwritten note on that email refers to the client (being Tesco) not wanting the claimant back in the workplace.  This was during the period when the claimant was absent from work with his Achilles tendon problem where his doctor’s sick lines said that he might be fit to come back subject to some unspecified accommodation.  

90.	The issue for this tribunal is whether or not this advances the claimant’s case that he suffered discrimination and/or that he was constructively dismissed.  Even if it is correct that a Tesco manager communicated to the claimant’s managers that they did not want him in the workplace when he was in the therapeutic boot, or alternatively, if the respondent’s managers communicated this to the claimant when it was not true, the height of the point here relates to the veracity of the relevant managers.  In the circumstances in this case where several key matters were not in dispute between the parties the veracity of managers on this point is not relevant to whether the duty to make reasonable adjustments arose and was breached.  It is also not relevant to any assessment of whether the failure to let the claimant back to work with adjustments amounted to, or contributed to, a breach of contract warranting his resignation.

91.	A key issue in this case is whether we accept that there were reasonable grounds for delaying the claimant’s return because of the agreed risk of slipping in the corridor on the way to the office and the agreed inability of the claimant to wear PPE.  Our view as set out above is that in this workplace with the real possibility of slipping even in the short access corridor to the office, managers were justified in waiting longer until the claimant’s mobility improved.  The mobility issue was then supplanted by the claimant’s depressive illness which rendered him completely unfit to work and this latter period of incapacity was not the respondent’s fault.

92.     The Tesco Manager issue is therefore irrelevant to the issues in the case except in relation to credibility.  Given that both sides agreed on the key points about access to the office and about the claimant’s mobility during that period, credibility is not relevant to our assessment of that point.  Credibility of those managers is also not key to our assessment of what could, or should, have been done when the claimant was unfit due to his depressive illness.

Sex discrimination

93.	The claimant alleged that there was failure to put in place adjustments to get him back to work following his Achilles tendon injury when in contrast, a female colleague was given adjustments to enable her to change her shifts.  The claimant’s case was that this amounted to less favourable treatment on grounds of sex.

94.	We considered the medical evidence which was produced to us in relation to that comparator Ms IV.  As a result of that medical evidence Ms IV’s shift pattern was changed.  It was not therefore the case that she was unfit to carry out her duties but rather the adjustment in issue was in relation to her pattern of work.  

95.	We find that Ms IV is not a valid comparator in that her circumstances were not comparable to the claimant’s as she had no mobility problems, she could wear PPE and she could complete all her duties.

96.	As the issue in the claimant’s circumstances was that he had mobility issues to the extent that he was not able to wear some of the PPE, an appropriate comparator is a female employee with similar mobility issues and inability to wear the PPE.  We heard no evidence to show that such a comparator would have been treated any differently and we therefore do not find that there was any less favourable treatment.

97.	Insofar as the claimant alleged that his treatment during his depressive illness should be compared to that given to Ms IV, we find that the claimant has failed to show that she is a valid comparator in circumstances where he was completely unfit to work according to his fit notes from his GP whereas Ms IV was fit to work on an adjusted shift pattern.

98.	A valid comparator would be a female who was unable to work at all and we had no evidence that such a comparator would have been treated any differently to the claimant. 

99.	The claimant’s claim of sex discrimination therefore fails on the basis that no less favourable treatment has been shown.

Unlawful deduction from wages

100.	This claim concerned a loan advanced to the claimant.  The loan was in relation to a change to the pay cycle to a four-weekly pay cycle.  The claimant and other employees were given options in relation to whether or not they wished to receive a loan to help them in the initial transitionary period.  The claimant opted to receive a loan on the basis that he would repay it in instalments and this agreement was committed to writing.  There therefore was a clear contractual basis for the subsequent deduction from wages in advance of the circumstances giving rise to the deduction.  The unlawful deduction from wages claim is therefore dismissed.

101.	In evidence the claimant confirmed that he was liable to repay the loan and that a sum remains owing.  The respondent did not pursue that outstanding sum in these proceedings as no counterclaim had been lodged.

Breach of contract

102.	This related to the claim for four days’ company sick pay.  It was clear under the contract that the entitlement to company sick pay arose once six months’ service had occurred.  The claimant fell ill before that point and therefore had no entitlement under the contract to company sick pay.  That element of the claim is therefore dismissed.

SUMMARY

103.	The claimant was not disabled within the meaning of DDA during the first period of absence.  Even if he had met the test for disability we reject the case that there were reasonable adjustments that could have been made that the respondent failed to implement, and we reject the claim of direction discrimination.

104.	The claimant was disabled within the meaning of DDA in the second period of absence.  The claims of direct discrimination, harassment and victimisation are dismissed for the reasons set out above.

105.	The sex discrimination claim fails as we have found that no less favourable treatment occurred and the comparator relied upon was not a valid comparator.

106.	The claim of unfair dismissal in the form of constructive dismissal is dismissed as the claimant has not shown the requisite breach of contract nor last straw event.  In addition we find that, even if a breach of contract had occurred, the claimant had waived any such breach and the real reason for his resignation was because he had obtained another job.

107.	The claims of breach of contract and/or unlawful deduction from wages in respect of loan repayments fail as the claimant was contractually obliged to repay the loan.

108.	The claim relating to company sick pay fails as there was no contractual obligation to pay it in the circumstances.

109.	The claims are therefore dismissed in their entirety. 

	
Employment Judge:

Date and place of hearing:  10-14 September 2018, Belfast.

Date decision recorded in register and issued to parties: