Claimant v Birmingham City Council

Respondent admitted constructive unfair dismissal on basis of breach of implied term of trust and confidence. Admitted breach primarily concerned failure to take into account Mr Barratt's email of 15 November 2021 (containing Mr Marsh's confession) during disciplinary process against Claimant. Last straw was pressing ahead with disciplinary hearing despite Claimant's professed inability to attend or make written representations.

Tribunal found two instances of direct age discrimination (Lee Marsh passing wind on Claimant and telling him he could get rid of him in December 2020; Mr Marsh avoiding contact with Claimant from 25 October 2021) and two instances of age-related harassment (March 2021 threat, 5 November 2021 chair incident). However, all claims failed due to time limits: last discriminatory act 5 November 2021, early conciliation started 31 October 2022 (6 months late). Tribunal declined to extend time on just and equitable grounds, finding no adequate explanation for delay.

Tribunal found that in March 2021, Lee Marsh telling Claimant not to mess with him because he snaps and hits very hard, and on 5 November 2021, Lee Marsh threatening Claimant with physical violence involving a chair, constituted age-related harassment. However, claims failed on time limit grounds as they were presented approximately 6 months out of time and tribunal declined to extend time on just and equitable basis.

All disability discrimination claims failed because none of the relevant conduct was related to or because of the protected characteristic of disability. Tribunal rejected Claimant's allegations of malice or institutional disregard for mental health, finding no evidential basis for claim that managers wanted to 'get rid of' Claimant or deliberately harm him due to his mental health conditions (anxiety, depressive disorder, PTSD). Conduct complained of had legitimate non-discriminatory explanations.

All disability-related harassment claims failed because the relevant conduct was not related to disability. Tribunal found no evidence supporting Claimant's belief that conduct was motivated by malice towards his mental health or deliberate attempt to exacerbate his illness. The fact that events may have worsened Claimant's mental health does not in itself make the conduct disability-related harassment.

All victimisation complaints failed because there was no causal connection between any detriment suffered by Claimant and any protected act. Tribunal found no evidence of conscious or unconscious victimising motive. Decisions regarding disciplinary process, grievance handling, and communications with Claimant were made for legitimate operational reasons unconnected to his complaints of discrimination.

Section 15 claim about constructive dismissal failed despite tribunal accepting that Claimant's actions on 5 November 2021 arose in consequence of his PTSD. Tribunal found the connection between the 'something arising' (November 2021 conduct) and the resignation (October 2022) was too distant and remote. Claimant resigned in response to events occurring after 5 November 2021 (continuation of disciplinary process, rejection of grievance) which did not themselves arise in consequence of disability.

First reasonable adjustments claim (policy requiring sick employees to communicate directly with employer unless verbal consent given for third party liaison) failed because Respondent made necessary adjustment immediately on 22 September 2022 by accepting communication via trade union representative. Second claim (lack of one-to-one meetings/stress risk assessments) failed because Respondent had no knowledge and could not reasonably have known Claimant would be placed at substantial disadvantage, and proposed adjustment unlikely to have avoided the disadvantage.

Respondent conceded during closing submissions that Claimant was not paid compensation for one day's accrued but untaken annual leave when his employment ended. This claim therefore succeeded by admission.

Claim for backdated pay rise failed. Tribunal found there was no unlawful deduction: the pay rise was paid in January 2023 final payslip. The payslip showed basic salary retroactive payment and sick pay retroactive, with a deduction for 'Sickness Offset Retroactive' representing the period when Claimant was on statutory sick pay only. This was consistent with Respondent's normal payroll practice and not an unauthorised deduction.