Claimant v Sainsburys Supermarkets Ltd

Tribunal found that while certain facts were proved (e.g. the email about unsuccessful application, comments about working when sick), these did not constitute less favourable treatment because of disability. The tribunal found the respondent would have treated any colleague in the same way.

Tribunal found respondent failed to make reasonable adjustments in two respects: (1) failing to adapt the absence management policy by disregarding disability-related absences occurring before adjustments were made, and (2) failing to adjust working hours to 9.30pm-7.30am to avoid claimant working beyond contracted hours for handovers. These failures put the claimant at substantial disadvantage due to his ankylosing spondylitis causing pain, fatigue and increased absences.

Tribunal found respondent discriminated against claimant arising from disability by: dealing with him under absence management policy, paying only statutory sick pay after 19 May 2023, giving him a formal written warning for absence, halving his bonus due to the warning, and informing him he had not passed probation. All arose from increased absences and reduced ability to work excess hours due to his ankylosing spondylitis. Treatment was not a proportionate means of achieving legitimate aims because adjustments had not been properly implemented.

Tribunal found the proven disability discrimination, failure to make reasonable adjustments, and failure to pay company sick pay were sufficiently serious to constitute fundamental breaches of the implied term of mutual trust and confidence. Claimant resigned in response to these breaches after waiting for grievance outcome, which was reasonable. He did not affirm the contract.

Tribunal found claimant was entitled to six weeks less one day of company sick pay from 19 May 2023 (225 hours), but was only paid statutory sick pay. The respondent had a legal obligation to pay company sick pay to eligible employees despite the policy being stated as 'non-contractual'. Claimant had legitimate expectation of payment and refusal was perverse/irrational.

While the tribunal found the respondent required the claimant to work additional hours beyond contract, this specific breach of contract claim was subsumed into the constructive dismissal finding. The tribunal found failures to make adjustments and other breaches constituted fundamental breach of the implied term of trust and confidence.