Claimant v DFDS (Guernsey) Limited

The tribunal found the respondent breached the implied term of mutual trust and confidence by failing to explore or respond to requests for shore-side redeployment over many months, failing to act on vacancies in February-March 2023, September-October 2023, and February-March 2024, and failing to properly consider the Occupational Health report. The claimant resigned because of these cumulative failures and because the respondent refused to allow him to return to work after he obtained his ENG1 certificate in March 2024.

Having found a constructive dismissal, the tribunal held the dismissal was unfair. The respondent's asserted reasons (capability, contravention of enactment, some other substantial reason) were not the actual reasons for the breach of contract. The tribunal found no fair reason for the constructive dismissal and did not need to consider the reasonableness test.

The respondent had PCPs relating to medical standards (ENG1), working at sea in all conditions, and manual handling/physical duties. These put the claimant at a substantial disadvantage. The tribunal found it was a reasonable adjustment to facilitate temporary or permanent redeployment to a shore-based Operations Coordinator role at DFDS A/S, especially in April 2023, September-October 2023, and February-March 2024 when vacancies existed. The respondent failed to take steps to facilitate this, including during a phased return following the Occupational Health report recommendations. This was a continuing omission until the claimant resigned.

The claimant compared himself to a junior officer given an HR role in 2012-13, but the tribunal found this was not an appropriate comparator due to changes in the respondent's approach to taxation rules in recent years. The claimant did not establish he was treated less favourably than any comparator in the relevant time period. The reason he was not redeployed was not because of his disability, but because the respondent assumed he wanted to try returning to sea first and did not see redeployment as their urgent responsibility.

The claim related to alleged comments at a November 2023 meeting that the claimant would return 'as a passenger', but there was no evidence of what was said at the meeting or that the Occupational Health report was discussed. The claimant did not name the colleague who sent a potentially offensive joke message, preventing proper investigation. The tribunal found no unwanted conduct by the respondent at the alleged meeting and the complaint about the joke itself was not what the claim was about.

The tribunal considered whether the breaches of contract leading to constructive dismissal were unfavourable treatment because of something arising from disability (absence or inability to do full duties). However, the failures were due to the respondent believing the claimant wanted to try sea work first, lack of designated line management responsibility, absence of vacancies at particular times, and failure to proactively track vacancies — not because of something arising from the disability. The failure to review the OH report promptly was due to the ENG3 certificate being issued for non-disability reasons.