Claimant v The Arbib Education Trust

The tribunal found no less favourable treatment on grounds of disability itself. The claimant received enhanced sick pay, and decisions about his pay review were driven by factors that would have applied to a hypothetical comparator in the same circumstances apart from disability.

The claimant was told on 29 March 2022 that his future sick pay entitlement would be reduced if he fell ill again in his second year of employment, depending on when that illness started. This was unfavourable treatment arising in consequence of disability and was not a proportionate means of achieving a legitimate aim because the letter was unclear and SC did not intend the claimant's future sick pay rights to be totally unaffected by the enhanced sick pay.

The claimant was sent a pay review letter on 28 November 2022 informing him that he would not receive an inflationary pay increase. The reasons for that decision included that the claimant had been compelled to take sickness absence due to suffering with his disability. The decision not to award a pay review was unjustified unfavourable treatment arising in consequence of disability.

The claimant's pay was not reduced retrospectively. He was paid for hours worked in accordance with the policy. The reasonable employee would not regard themselves as disadvantaged by being paid in accordance with the policy.

The comment on 30 November 2022 that the claimant was 'new in post and hadn't yet reached the point of taking on the full responsibilities of the Finance and IT Director role' was explained as a potentially discriminatory reason for not getting a pay rise, but it did not meet the statutory test for harassing effect because it was not reasonable for it to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment.

The statement by his line manager on 12 December 2022 that the claimant had not acknowledged the impact his sickness had had on others, specifically on the line manager himself, and the business, could reasonably be regarded as hostile and offensive in all circumstances. The juxtaposition of those two and the particular comment by a line manager could justifiably be regarded as hostile and offensive.

The statement by his line manager in a document which was provided to the claimant on 6 February 2023 that he could not agree or disagree with the list of work the claimant stated he had completed could reasonably be regarded as humiliating for the claimant to read that his line manager's opinion was dismissive of the work he had done and reasonably regarded as creating an offensive atmosphere.

The claimant's pay appeal dated 8 December 2022 was not sent to the Trustees of the respondent's pay committee, contrary to policy. This denied the claimant the opportunity to be heard at an appeal hearing when the policy provided that his achievements would be considered by the pay committee and had the consequence that his allegations of discrimination were not considered by them. The burden of disproving victimisation transferred to the respondent and they failed to discharge it.

The respondent told the claimant the following untrue statements: that his statement of appeal had been considered by specific members of the pay committee when it had not been and that the pay appeal had been upheld when it had not been considered under the policy but upheld under an ad hoc short form process. The claimant was falsely told that the appeal statement had gone forward to the Trustees in his outcome letter. This was a detriment to him.

The respondent failed to provide the claimant with pay appeal emails in advance of his grievance hearing on 22 February 2023. This was disadvantageous to him because they were the only record of the decision making by which he was awarded the inflationary pay award that was part of his grievance. The burden of disproving that the reason why he wasn't given them was that of one or more of the protected acts passes to the respondent and they've not been able to discharge it.

The respondent, in the grievance outcome, failed to uphold the claimant's allegation of discrimination in relation to his pay review. In the absence of evidence from the investigator or any evidence from the Pay Committee, the tribunal was not satisfied that the respondent had satisfied the burden of proving that the decision to reject the allegations in the grievance that the claimant had been discriminated against was not influenced by the fact that the claimant had raised discrimination complaints.

The claimant was constructively dismissed and this was unlawful discrimination contrary to s.15 Equality Act 2010 and/or victimisation contrary to s.27 Equality Act 2010. The acts of the respondent amounted to conduct which was likely to destroy or seriously damage the trust and confidence the claimant had in them. The discriminatory or otherwise unlawful matters were a sufficient contribution to the overall repudiatory breach as to render the constructive dismissal discriminatory.

The communications concerned only the claimant's own personal position. The tribunal was not satisfied that the claimant believed at the time he made the communication that the disclosure was in the public interest because it was exclusively connected with his own position. Any belief that the communication was in the public interest was not a reasonable one to hold and the communications were not protected disclosures.

The complaint of automatic unfair dismissal contrary to s.103A Employment Rights Act 1996 is not well founded and is dismissed because the claimant had not made protected disclosures.