A tribunal case dealing with Diabetes

[TrueBlueTerrier]

https://assets.publishing.service.gov.u ... easons.pdf" onclick="window.open(this.href);return false;

Too long to publish here (16 pages) but the conclusion is posted below:

Conclusion

69. Moving on from there we ask the first question: was the claimant treated unfavourably by the respondent? The answer is: yes he was because company sick pay was stopped. There is no doubt in the Tribunal’s judgment that it amounts to unfavourable treatment.

70. Was that decision done because of something arising in consequence of the claimant's disability? In our judgment the claimant was treated unfavourably because he could not reasonably attend the meeting called at short notice by Mr Hayhurst on 9th June for the 10th because of a prior and longstanding medical appointment on a Saturday morning at a Diabetic Retinopathy Screening Service, something that he made known to Mr Hayhurst. In our judgment, the need for the claimant to attend that medical appointment and thus his inability to attend his appointment with Mr Hayhurst clearly arose in consequence of his disability: it is an eye condition relating to his diabetes at the Diabetic Retinopathy Clinic.

71. Having answered the first two questions in favour of the claimant we move on to consider whether the respondent can show that the treatment was a proportionate of achieving a legitimate aim.

72. I have stated above that “legitimate aim” was not pleaded. However, it was introduced by Mr Bailey-Gibbs as part of his response, and in his written submissions to the Tribunal in paragraphs 31 and 32 he has stated this:

“The respondent is entitled to require the claimant to attend a meeting to discuss his sickness absence, particularly whilst in receipt of company sick pay. If the claimant fails to adhere then the respondent is justified in withholding company sick pay in those circumstances. The legitimate aim is ensuring that the sick pay provisions are not subjected to abuse and misuse. The proportionate means of achieving that is the application of the respondent’s sick pay policy which may ultimately result in pay being withheld.”

73. In our judgment the actions of Mr Rigby did not amount to abuse of misuse of the sick pay policy. In our judgment the claimant had complied with all of the conditions imposed upon him and the manager was aware from the sick note that he was genuinely off sick for the reasons stated and he was aware of the Diabetic Retinopathy appointment, the claimant having told him. The claimant told him of his conditions; he told the manager that he had grievances; he told the manager of a genuine disability related reason as to why he could not attend the meeting, and in our judgment the decision to withhold the sick pay was one that related to the failure to attend the meeting because of a genuine disability related reason.

74. Whilst we accept that management must be entitled to impose its sick pay policy on all employees including those with disabilities, we do not accept that the decision of Mr Hayhurst in this case was a proportionate means of achieving a legitimate aim. The proportionate means in our judgment was as he flagged up in his discussions with the grievance officer, that he should have merely said “ok, no meeting on the Saturday”. He should then invite the claimant to another meeting. He did not do that, he made the decision to stop company sick pay when he clearly knew why the claimant could not attend. That decision was based, in our judgment, on the claimant's condition not upon a need to enforce the policy on that Saturday morning.

75. In our judgment the claimant succeeds in relation to allegation number two that there was an act of discrimination arising from disability.

Remedy
76. Before we give our conclusions on the question of remedy we are pleased to note that through their solicitor the respondent has formally apologised to the claimant. We are pleased to note that Mr Hayhurst has steadfastly remained in the Tribunal throughout notwithstanding our findings against him. We hope that the claimant is able to, after this judgment, put these matters behind him and that he will be able to return and will be well received on that return.

77. In terms of remedy, we have heard the submissions from the claimant and we have heard from the respondent. We note that the Tribunal is compensating the claimant for the one finding in his favour. There is no doubt in our mind that this is in the lower band of Vento which places it somewhere between £800 and £8,400. Having regard to the submissions made by Mr Bailey-Gibbs and the cases he has quoted, and the submissions of the claimant, the Tribunal’s view is that the appropriate award is the sum of £4,000 which will attract statutory interest of £368.22.

[General Mannerheim]

Remedy
76. Before we give our conclusions on the question of remedy we are pleased to note that through their solicitor the respondent has formally apologised to the claimant. We are pleased to note that Mr Hayhurst has steadfastly remained in the Tribunal throughout notwithstanding our findings against him. We hope that the claimant is able to, after this judgment, put these matters behind him and that he will be able to return and will be well received on that return.

What planet are these judges on?
They may well be no immediate repercussions as let's face it even Royal Mail managers are not that thick, they will bide their time and get him some other way. It might take a few years but once your cards marked your f****d.
Also talk of a pyrrhic victory.... the poor guys gone through having his pay stopped been shat on by management and no doubt been through a very horrific tribunal case and all he gets is just over £4000.

[rubberbond]

The point at 7.2 is interesting
“The respondent is entitled to require the claimant to attend a meeting to discuss his sickness absence, particularly whilst in receipt of company sick pay. If the claimant fails to adhere then the respondent is justified in withholding company sick pay in those circumstances. The legitimate aim is ensuring that the sick pay provisions are not subjected to abuse and misuse. The proportionate means of achieving that is the application of the respondent’s sick pay policy which may ultimately result in pay being withheld.”
From what I understand it is not part of the sick pay policy ,because the company specifically states that all absences are deemed to be genuine, so if that is the case , why do they feel the need to call a meeting to discuss your absence.

[General Mannerheim]

The point at 7.2 is interesting
“The respondent is entitled to require the claimant to attend a meeting to discuss his sickness absence, particularly whilst in receipt of company sick pay. If the claimant fails to adhere then the respondent is justified in withholding company sick pay in those circumstances. The legitimate aim is ensuring that the sick pay provisions are not subjected to abuse and misuse. The proportionate means of achieving that is the application of the respondent’s sick pay policy which may ultimately result in pay being withheld.”
From what I understand it is not part of the sick pay policy ,because the company specifically states that all absences are deemed to be genuine, so if that is the case , why do they feel the need to call a meeting to discuss your absence.

It's because like most tribunals where a postie has to defend himself without a proper legal representative or union lawyer then Royal Mail lawyers usually (Weightmans) will flim flam the tribunal judges.....their brief would have used the above crap as that's what happens in most normal employers when they are justified in stopping pay but as we know ALL absence is supposed to be genuine in Royal Mail only you'd never get one of their briefs to concede that point unless you make them.