Annex 1

Chippenham & Trowbridge CC Claim A51YJ932
ANNEX 1 Page 1 of 37
BETWEEN: MR DOUGLAS GARDINER CLAIMANT
AND
EXSTO UK LTD & OTHERS RESPONDENTS
Annex 1
The claimant will refer throughout to a company called HR Genius their own
description is as follows.
“HR Genius' are the number one provider of Employment Law and Health &
Safety services in the UK. Since we were established in 1983 our experience has
enabled us to provide our services to over 26,000 businesses. HR Genius is
integrated into their HR and health & safety departments allowing business
owners, directors or senior managers to save time on worrying about staff-
related or safety issues and concentrate on what really matters; making their
business a success.
The size of HR Genius ensures that we have been able to attract and retain the
very best employees from the HR, Health & Safety and Legal Services Industry
and create this specialist service for every business. Our financial strength
means that we are able to offer this at a fraction of the real cost and guarantee
the continued quality to each and every one of our customers.
We can guide you through any issue you may have, whether related to
Employment Law or Health & Safety at work. Our years of experience allow us to
offer an ever-increasing list of services to mirror an in-house human resources
department.”
With the emphasis upon
a) “HR Genius is integrated into their HR and health & safety departments
allowing business owners, directors or senior managers to save time on
worrying about staff-related or safety issues and concentrate on what
really matters; making their business a success.”
b) “The size of HR Genius ensures that we have been able to attract and
retain the very best employees from the HR, Health & Safety and Legal
Services Industry and create this specialist service for every business.”
c) “We can guide you through any issue you may have, whether related to
Employment Law or Health & Safety at work.”

In Italics the Judgment 1400500/2011
EMPLOYMENT TRIBUNALS
Claimant: Mr DIGardiner
First Respondent: ExstoUKLtd
Second Respondent: Mr J Baxevanidis
Third Respondent: Mr Jean-Marc Penelon
Heard at: Bristol
On: 7 September 2011 & 8 September 2011
Before: Employment Judge Owen
Mr A Edwards
Dr B Tirohl
Representation Claimant: Assisted by his father, Mr J Gardiner
Respondents: Mr Reynolds of Peninsula Business Services Limited
JUDGMENT having been sent to the parties on 23 September 2011 and reasons
having been requested on 24 September 2011 in accordance, with Rule 30(5) of
the Rules of Procedure 2004.

The introduction of the judgment makes the statement there were five staff
this may be a trivial observation but there were in fact seven staff. In 2006
there were thirty, now only two remain as employees in the UK.
REASONS
1. “These are claims for unfair constructive dismissal, race discrimination,
disability discrimination and unpaid or withheld wages, and/or holiday pay. The
core facts are as follows. Mr Gardiner worked for Exsto from 18 August 2003
until, he gave three months notice of resignation on 28 February 2011 so that
his employment actually ended on 28 May 2011. He brought these proceedings
during that notice period. The facts have been disputed to a significant extent,
so we record what is agreed. The claimant was Design Manager in the Exsto
office in Wiltshire with just five staff including not only the claimant but his
manager Mr Baxevanidis who is Greek. Line management was in France and
the relevant managers are Mr Penelon, Sales Manager and Mr Torres, Chief
Executive. The company is a supplier of Polymer solutions and Mr Gardiner
was the only designer in the UK office. He designed parts and concepts for the
petrol and gas industry.”
Employee Position 2010 Current Position Service Education
Mr Alcock Project
Engineer
Resigned 2002-2011 Engineering
Degree
Mr
Baxevandis
(Greek)
General
Manager
Oil and Gas
Business
Manager
2003-Present Engineering
Degree
Mr Gardiner Design
Manager
Unfit for work 2003-2010 A level
Mr Lewis Accountant Made redundant 2005-2011 Chartered
Mr Farrell Project
Manager
Degree
Mr Bezard
(French)
Proposals
Engineer
Sales Engineer 2006-Present Engineering
Degree
Mr Carew Project
Engineer
Degree

2. The conflict on the facts has to be resolved by the Tribunal. We will begin by
dealing with issues relevant to the contention of constructive unfair dismissal.
The claimant set out the core allegations in paragraph 5.2 of his ET1. There
are various matters capable individually or collectively of amounting to a
fundamental breach or breaches of contract. We remind ourselves that the
burden is on a claimant to satisfy us of three matters on the balance of
probability if he is to show that he was constructively dismissed. Firstly, he
must prove that there were individual or collective breaches which amounted
to a fundamental breach of contract (which in this case is asserted to be the
duty of trust and confidence). Secondly, a claimant must show that he
resigned entirely or mainly because of that and thirdly, he must prove that he
did not act too hastily or delay too long. Those three requirements are of
course cumulative. The claimant must prove all three.
3. There has been a considerable amount of evidence in this case and some of
the allegations and some of the matters recorded in the claimant's documents
offer long standing complaints and resentments that go back long before this
matter surfaced in early December 2010. We have looked at those earlier
issues and do not believe that they were matters that amounted to any breach
of trust and confidence. We have concluded that the claimant can only
succeed if he 'can satisfy us by reference to the allegations made in the ET1,
which are in themselves numerous, but all arise in December 2010 or later.
With those issues in mind, therefore, we find the facts as follows.
The observation is correct however it must be pointed out that the
claimants’ original grievance related to the conduct of the company on the 9th
of December involving a “confidential” discussion with Mr Penelon on the 9th
of December and in writing was:
From: Doug Gardiner
Sent: 10 December 2010 06:41
To:John Baxevanidis
Subject: Sickness
Dear John
I will not be in the office for the rest of the day due to stress, from which I was suffering
already, but was aggravated by bullying in the office yesterday morning.
I will be seeing my Doctor at 10:30am today.
Kind Regards,
Doug GARDINER.
The later grievances were in response to a letter received by the claimant on
the 16th
of December and related to the conduct of the company from the 6th
of December 2010 onwards as does the ET1.
It was the company under the guidance of Peninsular Business Services that
stirred up the past making illegal deductions from salary to disrupt and
undermine the claimants’ claims, thus creating further confrontational issues
that were not part of the original complaints and well beyond the capability of
the claimant who by that time was and remains unfit for work.

4. The claimant was well represented by his father, a lay person, and these
events arose because at the end of November he visited Mr and Mrs
Gardiner senior in Spain, where they have lived in retirement for many
years. He was due to return to the United Kingdom on Saturday 4
December 2010, but was unable to fly from Alicante airport because of a day
long strike by Spanish air traffic controllers. Mr Gardiner therefore returned to
his parents home and was in due course transferred to a flight which left
Alicante early afternoon of Wednesday 8 December 2010, which meant that he
did not return to work on the Monday but only on Thursday 9 December
last. On 4 December the claimant had telephoned a colleague, Mr Bezard,
and he had asked that colleague to tell their manager Mr Baxevanidis that he
would be unable to return to work until Thursday 9 December. Mr Bezard
duly did so.
5. The claimant reported to work at 7.45 am on Thursday 9 December. When Mr
Baxevanidis was in the office he tried to speak to him but was told that they
should have a chat later. The claimant objects, he says, to the brisk way in
which he was told to do so, but we do not find that was objectionable, and it is
clear that the manager wanted to talk to the claimant when they could be
alone, the office being small. An opportunity arose at about 10.30 am when
other members of staff were in a separate room. That conversation is agreed
to have taken no more than 5 or 10 minutes, but it is the background to
everything that happened later. The claimant's case and his central complaint
of fundamental breach of contract is that he was bullied and harassed by Mr
'Baxevanidis. The employer's view is that this was a conversation that he was:
entitled to have without any convening formalities on a day to day basis with
someone whom he managed; the only proviso being that it ought to be
private. (As noted it was)
The fact
“we do not find that was objectionable”
Is a point of view, which is beyond the powers of the tribunal.
The claimant felt threatened, it was clear the manager wanted to speak to
the claimant he was unsettled by the comments relating to the manager of
another employee, still very unsettled by that earlier event the claimant
politely knocked on the closed office door of the manager approaching the
manger to find out the reason for the threatening behaviour.
The approach was made in a private office separated from other offices by
doors and a corridor, this office was the most suitable place to have the
discussion. The brisk treatment received unsettled the claimant further and
later for the manager to come unannounced to corner the claimant in his office
at his desk when all of the employees were in a pre arranged meeting was
unacceptable.

6. We have heard evidence from both parties and seen the letters that were
written about that meeting and our conclusion is that the claimant was
somewhat anxious about his position and wanted to explain it at some length.
He had already tried to have this chat earlier, On the other hand Mr
Baxevanidis wanted to tell the claimant why he, the Manager, was very
unhappy. Mr Gardiner has confirmed that although he described the
manager's conversation as "vicious" and "aggressive" Mr Baxevanidis did not
shout or use offensive or abusive language. And we so find.
The fact
“the claimant was somewhat anxious about his position”
Is true as stated in the e-mail dated 10/12/10
The true fact of the evidence is the claimant was anxious and wanted to
establish the reasons.. for the abrupt comment of Mr Bezard
“the boss is not happy with you”
Followed by, the surly attitude of Mr Baxevanidis.
“we’ll have a chat later” – “get on with your work” which are in the right
context reasonable requests it was the delivery that was unacceptable.
The fact
The claimant “wanted to explain it at some length”
Is also an error, and is based upon the statement of Mr Baxevanidis written a
full week after the event and unlawful salary deductions, in truth the claimant
was rendered virtually speechless by the unwelcome advances of Mr
Baxevanidis who in a vicious attack reeled of an unacceptable lengthy
explanation of his position without even considering the claimants capability to
deal with the situation.
Mr Baxevanidis had mixed conduct with capability.
The claimant is in total agreement with the public approach of HR-Genius the
approach of Mr Baxavanidis was unacceptable, bad for moral and the
company, the message is the one the claimant tried to deliver to the tribunal
however the claimant was at the time incapable of such argument.

Staff Problems: Conduct or Capability
The claimants conduct was in error labelled as unacceptable by MR Baxevanidis
and other staff but as the HR Genius website states:
“Many employers confuse conduct and capability”
The claimant was unintentionally trapped in Spain by industrial action in an
issue of capability not conduct. The claimant as per the company handbook
had dutifully informed the company of incapability; the company was aware
but by its conduct converted the claimants’ incapability into unacceptable
conduct.
Simply: the claimant had no choice (capability) the employer did (conduct).
Extract from the HR-Genius “Staff Problems: Conduct or Capability
“If one of your employees is not working to the level you expect, you need to tackle
that by following the correct procedure depending on whether or not the problem
is down to conduct or capability. An employee’s failure to work to the expected
standard, their behavior, their attendance or how they follow instructions could be
as a result of a conduct or a capability issue, and you need to identify which it is.
Many employers confuse conduct and capability issues
And you need to keep them separate. You need to look at why your employee’s
performance is below standard and determine if it is because they cannot work to
the required standard or because they will not. If they cannot, then it is a
capability issue, whereas if they will not, then it is a conduct issue.”

Capability
Capability focuses on what an employee is or is not able to do. Capability covers
more than just skills, as it can also look at attitude, flexibility, qualifications and
health. Where there is a capability issue, you need to identify the problem and see
what you can reasonably do to help your employee fix that problem.
The problem in capability situations is whatever the employee cannot do that you
are concerned about. This can be a failure to meet performance levels, not passing
a test, poor attendance or any other issue where the employee is unintentionally
failing to perform to the level expected of them. It is the fact that it is unintentional
that makes it a capability issue because they are not choosing to work below the
standard you want.
The cause of the problem will help you to work out how to address it. Capability
issues usually fall into one of two categories: skill or ability. You need to work out if
the problem is because they do not have the skills necessary to do the job to the
standard you want or because they do not have the ability to do so.
Where the employee does not have the skills, you should see if you can help them
to gain those skills. This would generally involve some form of training as well as
setting targets so that you can see how they are improving. The amount of training,
the difficulty of the targets and the time allowed for improvements would all
depend on what you can provide and how quickly you need them to improve.
Training does not necessarily have to be a long and involved process. It could be as
simple as sitting down with the employee and showing them what to do and then
giving them a reference guide to refer to afterwards to remind them of what is
needed.
Where the employee doesn’t have the ability to perform to the required standard,
then it is unlikely to be something that can be fixed by training. Unlike skills, which
can often be picked up, if the ability is not there, it can rarely be gained through
training. In these circumstances, you should look to see if you can move work
around to make up for the lack of ability or see if there is other work better suited
to this employee.

Conduct
Conduct focuses on what the employee is or is not willing to do. Unlike capability,
conduct issues are as a result of choice. If an employee will not work in a certain
way, or to the required standard, then they are making a conscious decision not to
do what is expected of them even though they are able to do what is wanted. An
employee can expect to face the consequences of their choice and should
understand that they may be more severe than if it was a capability issue.
Conduct issues fall into three areas: misconduct, serious misconduct and gross
misconduct. The same act can fall into any of these three categories depending on
its severity. For example, theft could come into any of the categories depending on
the items stolen. Theft of office supplies is likely to be seen as misconduct, theft of
photocopying resources by copying a large number of documents without paying
anything for it may be seen as serious misconduct and theft of petty cash will
probably be seen as gross misconduct. However, this will not be the same in each
company and some businesses, particularly those in the retail sector, will take a
zero tolerance approach to theft.
The most serious forms of unacceptable behavior are known as gross misconduct
and generally include acts like theft at work, violence at work, harassment of other
employees or customers and breach of the health and safety rules. It is important
to remember that, in order to be considered as gross misconduct, the behavior has
to be of the sort that is so severe that, if found, will bring the contract to an
immediate end. For this reason, issues that can be considered as misconduct in
some industries may be considered as gross misconduct in others. If the working
relationship can still continue, then it will be misconduct or serious misconduct
depending on the severity of the issue.
An important factor for misconduct is that your employees should understand the
possible consequences of their actions. As misconduct is about choice, you need to
make sure that they understand the choice that they are making. They need to
decide if they are prepared to risk the consequences of not doing what is expected
of them. If they could not be reasonably expected to know that what they are
doing is wrong then it will not be a conduct issue.

It is not surprising at all that the claimant reacted the way he did. He was
totally shocked and as found by the tribunal “taken aback by criticism” of Mr
Baxevanidis.
7. The first thing that the manager wanted to say was that the claimant should
have phoned in to report direct to him. Mr Gardiner agreed that he had not but
contended that he had not got the manager's telephone number. That may
have soured things further because after hearing the evidence our conclusion
is that that could not be true. It is inconceivable that an intelligent man who
had worked for Exsto for several years did not know the local Bath telephone
number of the office. He had a land line available at his parent's home, and if
he did not have a number for the personal mobile of Mr Baxevanids he could
have obtained this from his friend and colleague Mr Bezard. He acknowledged
also then that he did not make any attempt to get an earlier flight than that
offered by the airline for 8 December. The manager's comment was that he
(Mr Baxevanidis) should have been contacted direct and that the claimant
should have tried to get an earlier flight, because everyone knew that Exsto's
office was a very busy one. Mr Baxevanidis also pointed out that he, the
Manager, had looked on line and found flights available for the previous
Monday. We accept that the claimant was taken aback by criticism. However,
this was a conversation that the manager was entitled to have. We do not find
that Mr Baxevanidis ever went beyond what was permissible in being direct
and critical of an employee.
This whole paragraph is objectionable and is the root of the claimants’
current incapacity.
No matter the circumstances no manager is permitted to create a hostile
environment for employees. The criticism was and remains unjust and
questioned the integrity and capability of an employee without leeway.
The claimant did not know or have the mobile number of Mr
Baxevanidis. The reason as explained to Mr Penelon during investigation was
the claimant had broken his mobile phone on the 8th
of August losing all of the
numbers stored thereon, why did the claimant have Mr Bezards number? Mr
Bezard had sold the claimant a car at the end of October various calls relating
to that exchange had taken place.
Crucially Mr Bezard could have also said that the claimant needed to
phone the office or Mr Baxevanidis as is industry practice for managers to do
with unexplained absence, he should have called the claimant first thing on
Monday for an explanation. However the call was not necessary Mr Baxavanids
had accepted a message! As he had many others but in this case alone had
formed a mistaken opinion of the situation he had confused capability with
conduct.

With his capability to travel restricted by extraordinary circumstances by
international law the claimant was given by Easyjet the earliest return flight
available that being on the 8th
of December.
From the HR-Genius it is clear that Mr Baxevanidis made the
fundamental mistake of confusing conduct and capability.
The claimant is in total agreement with the public approach of HR-
Genius the approach of Mr Baxavanidis was unacceptable, bad for moral and
the company, the message is the one the claimant tried to deliver to the
tribunal however the claimant was incapable of such argument.
Absence due to extraordinary circumstances
Be it illness, accident, adverse weather, ash clouds, industrial action or
terrorism the effect is the same, people are prevented from being where they
said they should be. These factors are issues of capability not conduct. For an
employer to find an employee guilty of misconduct for being unable to get to
work due to extraordinary circumstances is unacceptable.
Put simply again: the claimant had no choice (capability) the employer did
(conduct).

“HR Genius Case Study: Absence Due To Weather (read also extraordinary
circumstances)
We appreciate staff that have made it into the office but, in relation to those that
did not come in, do they get paid or do we need to encourage these employees to
take it as holiday?
There are a number of different things that you need to look at here but, as with all
things, your starting points are your contract and staff handbook. Look to see if
you have any adverse weather policies and, if you do, then follow those.
You are only obliged to pay staff for any work that they have actually done. If you
wish, you can give your employees a choice of taking the time off as paid annual
leave and using up some of their holiday entitlement for it or having it as unpaid
leave. In light of the weather conditions, you could consider allowing staff to work
remotely so that the work can still get done even if you would not normally allow
this. This extra work will take some of the pressure off those employees who did
manage to come in which will help everyone.
Consider what you have done in the past where people have been prevented from
attending work through some other natural problem, such as previous floods or
snow, and make sure your actions now are consistent. Remember that the adverse
weather conditions were not your employees’ fault, so do not treat them as if they
have deliberately not turned into work to make life difficult for you. Bear in mind
the impact on morale by paying for these days or making employees use up their
annual leave for an issue beyond their control. If your workforce is already
unhappy because of a pay freeze, then their morale will drop further if you make
them use up holidays, or lose pay, in these circumstances. However, paying your
staff even when they could not manage to make it in to work shows them that you
do value them and the benefit to morale and the knock on effect on performance
may well be worth far more than the actual salary for those days.
It is important that, as a company, you do not given the impression that you think
the people who did not attend work are in any way less dedicated than their
colleagues who did attend or that they were simply shirking off work.
There is no doubt of the claimants dedication to his employer he had
tried to notify Mr Baxevanidis of his incapability much earlier than was strictly
necessary (Mr Bezard had stated he would tell Mr Baxevanidis on Sunday).
Without a call from Mr Bezard or Mr Baxevanidis to confirm the claimant
knew no different. He had accepted calls at personal cost from the office
during the flight delay, he returned to the office at the earliest opportunity that
his capabilities and the law allowed.

8. After comments had been exchanged Mr Baxevanidis pointed out that the
company was not obliged to pay the claimant for three days when he had not
worked. The parties agree that that comment was made and also that the
claimant's immediate response was "Well if that's the case I'm ill, I'm going
home ok?'. He picked up his coat and left immediately. Our conclusion,
therefore, is that the manager was guilty of neither bullying nor harassment
nor anything else that amounted to a breach of contract. It is also clear that Mr
Gardiner only said he was ill at the end of the discussion and did not say what
was wrong or stay to explain.
This was a disciplinary hearing without due process, as per the ET1. The only
document relating to the hearing was produced a week later by Mr
Baxevanidis. The contents of which are objectionable but by then it was too
late serious damage had been done by the employers poor conduct of
proceedings the claimant had suffered personal injury.
There are procedures in place governed by law to protect employees from
overzealous management.
One of these is self certification of illness if an employee say’s they are ill it is
a question of capability not conduct. Employers have to take what is said at
face value it is only later after investigation and consultation with an
employee’s Doctor or employers’ medical advisors can ill health be an issue of
conduct.
The company failed to follow any of these procedures designed for health
and safety at work. Mr Baxevanidis had changed his story to suit which in most
circumstances is unacceptable behaviour.

Bad Attitude
When reading the description of bad attitude from HR-Genius it is a
perfect fit for that of Mr Baxevanidis, he has serious conduct issues which have
not been dealt with in the appropriate manner by the company.
Despite this, as a willing and conscientious employee with many good
years service and experience, the claimant, as was his duty had complied with
all reasonable instructions issued by the company and at times some that were
not, however in this case the method used by Mr Baxevanidis to deal with the
claimants capability issues were damaging to the company and the individual
and therefore gross misconduct.
It was only after the claimant became incapacitated by personal injury
and had been given authority to go home, that in a state of panic and gross
incapacity he refused to obey the orders and unwelcome advances of Mr
Baxevanidis.
With no choice the claimant to what is now to personal detriment had to
allege bullying and harassment.
Again: the claimant had no choice (capability) the employer did (conduct).
Extract from the HR-Genius
“Dealing With an Employee’s Bad Attitude
Reasonable Management Instructions
Employees have a duty to obey any reasonable management instructions given to
them. A defiance of authority or a refusal to obey these instructions can be classed
as insubordination.
Whilst employees may prefer their managers to adopt a particular style, they have
to accept that their managers are entitled to manage them in whatever way they
see fit. As long as employees are being asked to do work which is reasonably
connected to their role, you are entitled to exercise a level of control over how
employees carry out their work. Provided that it does not turn into bullying, the
extent of that control is up to you.
Bad Attitude
Attitude can be difficult to address because it is less about what work is being done
and more about how it is being done. Employees have different personalities and
you have to allow for certain differences in approach and temperament. However,
if they choose to remain in your employment they should carry out their work with
good grace.

It can be hard to define what a ’bad attitude’ is but examples can include:
Disruptive behaviour
Being overly rigid
Disparaging the company at work
Excessive negativity
Undermining others
Unconstructive complaints
Some examples of ’bad attitude’, such as bullying or deliberately refusing to follow
procedures or instructions, can fit more clearly into the concept of misconduct.
Identify the issue
Before labelling employees as simply having a ’bad attitude’, talk to them to see if
there is a reason for the behaviour. An employee might be refusing work because
he/she is genuinely overworked or do now know how to carry out a particular their
task. There could be other work-related reasons, such as bullying or the
interference of others, that is causing this sort of behaviour.
If an employee is constantly complaining about colleagues or a method of working,
check to see if this might be a reasonable complaint. If the ‘bad attitude’ is one you
are told about but have not observed, you should verify it for yourself.
It could be a personal situation or problem manifesting itself in an inappropriate
way at work. Check if there are any underlying issues that need to be addressed or
for which you might need to make reasonable adjustments.
Resolving the problem
Once you have identified the problem, you can talk to your employee about what
needs to change and agree how this will be done. Be specific. Telling employees to
‘improve their attitude’ will not get things done. Where possible, address any issue
that the employee has highlighted as causing the problem.
If the behaviour continues, then you may need to resort to disciplinary procedures.
It is likely that any problems will show up within their work, so keeping clear
records will help you address this. Be consistent in your approach: if you chastise
some employees for having a ‘bad attitude’, but ignore others, you may leave
yourself open to a complaint of unfair and unequal treatment.”

The Disciplinary Procedure
For the safety of both employer and employee the procedures must be
followed.
The unacceptable behaviour of Mr Baxevanidis had destroyed the
purpose of the procedure. A primitive attack of the claimant in direct
contradiction of the mechanisms of public policy to provide safe working
environments for all employees had incapacitated the claimant.
“The Disciplinary an Procedure
Should you be in a position where you have to deal with a staff problem, you may
have to look at using a disciplinary or grievance procedure. If so, you need to follow
a fair process. The ACAS Code of Practice provides a guide to the steps you should
follow as far as possible, although you may have your own procedures that are
more extensive.
There are a lot of similarities between both the disciplinary and grievance
procedures because they are both based on the same principle, namely that the
employee should be given an opportunity to prepare and explain fully their
position. If you keep this principle in mind as you go through the process, it will
help you to work out what you need to do next if you are unsure.
The Disciplinary Procedure
The principle behind any disciplinary procedure is to help employees to improve
their performance. It is not just about punishment. Any procedure should be
followed promptly and fairly. It is important to remember that the process must be
carried out with an open mind. Do not assume that any allegations are true or that
the employee must be in the wrong.
Investigate
When an issue of potential misconduct has occurred, carry out an investigation.
Where possible, the person carrying out the investigation should not be involved in
any other stage of the disciplinary process. Try to gather all the relevant evidence
as quickly as possible, including any witness statements, before memories can fade.
Depending on the nature of the issue, you may need to carry out an investigation
meeting with the employee. While your employee has no right to be accompanied
at an investigation meeting, it is good practice to allow this anyway.
No decisions should be made at any investigatory meeting. The purpose of the
meeting is to get an initial view on what happened and to decide if it needs to be
dealt with formally. If it is clear that there is no issue, then it should not continue.
However, this does not mean you should only move things to a formal hearing if
you have decided that the employee is in the wrong. The purpose of the

disciplinary procedure is to look formally at what happened and the reasons for it
so that things can be addressed and resolved. The investigation will be to
determine if there is sufficient evidence to show that an issue of misconduct
potentially occurred. The disciplinary hearing will decide if it was actually
misconduct and if any disciplinary action is warranted.
Depending on the nature of the issue, you may need to look at suspending the
employee. Any period of suspension should be kept under review, will be on full
pay, and should be kept as short as possible. You should also make it clear that it is
not a disciplinary action in and of itself.
Arrange a Disciplinary Hearing
If you decide that this matter does need to be dealt with at a formal disciplinary
hearing, write to the employee to invite them to the hearing. In your letter, set out:
when and where the hearing will take place
who will be carrying out the hearing
what the alleged issues are
the possible consequences of any decision
the right to be accompanied by either a trade union representative or a workplace
colleague
enclose copies of all the evidence you are going to look at in the hearing.
The hearing should be held without unreasonable delay but you do need to give
them sufficient opportunity to prepare. When deciding how much notice you need
to give, consider the amount of paperwork your employee will need to look at in
order to prepare. Your employee can request a postponement of the hearing for up
to five days to allow their chosen representative to attend. If the employee
requests a longer delay, or a delay for any other reason, then it is up to you to
decide whether or not to agree to that. You need to be reasonable when
considering such a request. If you are unsure, think of whether or not this is
something you would reasonably want if you were in the employee’s shoes.
At the Hearing
Explain the issue and go through all the evidence. Give your employee the chance
to explain their position and address the allegations. Let them ask questions,
present evidence and call witnesses. You should ask them to give you advance
notice of any witnesses they wish to call and, if possible, they should be
interviewed by the investigating officer. Have someone accompany you to take
minutes of this meeting and, if possible, everyone should sign them at the end of
the meeting to confirm that they are an accurate record of the meeting.
If the employee wants to be accompanied, they can make a reasonable request for
their companion. While what is reasonable will depend on the individual
circumstances, they need to be suitable. It would not be reasonable to ask for
someone from a remote location to act as a companion if there was someone
suitable on site who was willing to act. Similarly they should not insist on someone
who would make a fair hearing difficult. They cannot insist on someone being their
companion who does not want to act in that role.

The companion’s role is more than just a note taker. They are able to speak at the
hearing to put forward and sum up the employee’s case, raise any issues they are
concerned about and confer with the employee. However, the companion’s job is
to help the employee present their case, not present it for them. The employee is
the one who has to answer your questions and the companion cannot speak at the
hearing if the employee does not want them to, and they must not prevent you
from explaining the case.
Further investigation
You may decide, after hearing from the employee, that further investigation is
needed. If that happens, try to get this further evidence and reconvene the
meeting to go through it with the employee, giving them reasonable notice and the
same right to be accompanied as before. Once you have heard all the evidence,
you need to consider it and reach your decision on whether you need to take any
disciplinary action and, if so, what type of action that will be. Any action you
decide to take must be in line with your disciplinary procedure.
Communicate your decision
Once you have reached your decision, you need to write to your employee setting
out what your decision is and why you have reached it. If you are issuing a warning,
set out what type of warning it is and how long it will last for. If it is a final warning,
spell out to your employee that any further act of misconduct while the warning is
active is likely to result in their dismissal. Let your employee know that they have a
right of appeal and set out what they need to do if they wish to exercise that.
Right to Appeal
If your employee chooses to appeal, then the appeal hearing should be carried out
by a manager who has been uninvolved in the process so far, if that is reasonably
possible. Follow the same process for arranging and carrying out the appeal
hearing as you did for the disciplinary hearing. The appeal decision must also be
provided in writing. The appeal decision is normally final unless your procedures
allow for a further appeal.

9. The claimant also complains about subsequent conduct of his manager. Both
parties agree that Mr Baxevanidis called the claimant at home an hour or two
later. Mr Gardiner objected then and complains now. In his own words he
acknowledged that he 'shrieked' "leave me alone this is harassment'. He may
have made some other comments, neither party is certain, but he certainly
then put down the telephone. We need to record two things; first of all that it
was perfectly proper for the manager to make that call, and secondly, that the
claimant's reaction was inappropriate. It was not the subject of any disciplinary
action, (although it might have been) but it did do more damage to the working
relationship. A short time later Mr Baxevanidis tried again by leaving a voice
mail in the hope that the claimant would calm down and listen to it. He has
been criticised by Mr Gardiner for making these calls when the claimant says
that he was ill, but it must be remembered that the manager was only told that
the claimant was ill at a late stage in the conversation and in response to the
statement about non-payment of three days salary. His message asked Mr
Gardiner to get in touch to talk about matters amicably because otherwise the
matter would have to follow company procedures. None of those actions were
remotely "bullying".
The call made is one that should have been made on Monday morning
when it would have been perfectly proper. The claimant had been injured by
the unacceptable conduct of Mr Baxevanidis. The call was made after
consultation with Peninsular business Services.
Mr Baxevanidis stated in an abusive manner “I have called our HR people
and they say what you are doing is wrong” he ordered the claimant to return to
work.
The telephone call was entirely inappropriate and amounted to discipline
by phone. The claimants’ reaction of “leave me alone this is harassment” was
entirely appropriate in the circumstances.
10. The claimant did not get in touch to discuss amicably but did send an email
the following day (10 December last) in which he stated that he would not be
in the office for the rest of the day due to stress from which he was suffering
already, but which was aggravated by "bullying in the office yesterday
morning". He added that he would be seeing the doctor. The manager wrote
on the following Monday 13 December last an email at page 32, which again
has been criticised by the claimant but which in our view is an entirely proper
one; It records that if Mr Gardiner thought that he had been bullied, he should
raise a formal any grievance. Mr Baxevanidis went on to say that he would
arrange for another manager to deal with any grievance; that no strict time
limit would be imposed and that if Mr Gardiner did not feel up to it, he needn't
reply. We note at this point that the claim that Mr Baxevanidis was "left in
change of my welfare" is clearly incorrect.
The statement “did not get in touch to discuss amicably” is a gross error.
From evidence presented at the hearing
The claimant spoke to Mr Penelon, spoke to and e-mailed Mr Bezard on the 9th

of December, e-mailed the HR department in France on the 13th
of December
but this was ignored, e-mailed Mr Baxevanidis and called Exsto UK on Friday
the 10th
to speak to Mr Baxevanidis but he was in a meeting and never called
back. The claimant also visited the office on Monday 13th
but again was ignored
by Mr Baxevanidis as was an NHS mediator appointed on the 13th
of December
to assist the claimant back to work. The claimant sent several e-mails to Mr
Baxevanidis to which he replied. Mr Bezard sent several e-mails to the claimant
including warnings and profanities.
Due to snow and the letter being sent recorded delivery the letter was
not received until several days after the unjust investigations into the claimants
conduct and the unlawful deductions from salary which were done under the
instruction of Mr Baxevanidis by which time it was too late more damage had
been done!
11. The next thing that occurred is that the company did not include the three
days salary for the claimant, in the pay run of 15 December 2010. That is
precisely what the claimant was told would be done. The conclusion that, the
Tribunal reaches is that this was not a question of a company making an
unauthorised deduction, it was an organisation saying, we won’t pay you if
you don't come to work unless you have either agreed it advance or you are
sick. The correspondence about which the claimant also complains is in our
view. Not confrontational or unsympathetic and that does not amount to a
breach of contract on the part of Mr Baxevanidis.
It was agreed at the tribunal hearing that the company was entitled to
withhold the salary, what was not agreed was why, when and how. If these
were conduct issues which they were not then the claimant was entitled to the
legal protection afforded by the disciplinary process.
As a salaried employee there is due process to be followed before
deductions can be made this protection is afforded by the law. Once the
company had paid back the theft, the claimant would have returned the money
when he had the capability to do so it was after all Christmas.
The claimant was told nothing of another deduction from salary that despite
the evidence was mistakenly missed by the tribunal.
These two deductions amounted to theft by the company, if the first was not
then the 2nd
most definitely was.

12. The next allegation made by the claimant: is that of an unauthorised deduction
without due process. The claimant agrees that Mr Baxevanidis sent out an
email to Mr Gardiner and to other staff members on 8 February 2007 at a time
when the respondents traded as Dunlaw Engirieering Ltd and when they had
a slightly larger workforce. This email was received by the claimant and was
also displayed on the notice board at the company's then premises for several
months. The instruction about absence from work; and the need to report to
the manager (or another employee, Mr King, who is no longer there) is clear.
The email also says (our emphasis) "time out of work which has
been unauthorised will not be reimbursable from the company i.e. you
will NOT be paid for that period regardless of the justification".
Unauthorised absence is conduct that warrants a proper and fair
disciplinary process.
The first deduction for 3 days is classified as unauthorised absence
where it was in fact unpaid leave.
Although the evidence was presented, 5.5hrs deducted for non
attendance as unauthorised absence on the 9th
of December 2010 after the
industrial accident occurred was not considered at all by the tribunal. This
deduction was made without adherence to any procedure or notification
whatsoever.
However Mr Baxevanidis it is assumed had consulted with Peninsular
Business Services and was changing his story to suit.
The process adopted by the company was hostile and objectionable. As
Judge Owen later quite rightly accepted the claimants’ arguments that
company absence memorandum does not apply, referring the claimant to
conduct issues in the company handbook. This part of the Judgment needs
reviewing in the context of the letter of the tribunal dated 19th
of June 2012.
13. At various stages the claimant has complained that the respondents did not
adopt a proper disciplinary process. It again needs to be re-emphasised that
this was not a disciplinary decision, it was a common concept that an
employer is entitled to apply, namely if you do not turn up for work you will not
be paid. And it needs to be recorded also that no disciplinary proceedings
were ever taken by the company against Mr Gardiner. He was criticised
orally by his manager for making insufficient effort to get an earlier flight. But
such allegations were never pursued by the respondents by way of discipline
(although they could have been). The claimant acknowledged very fairly in
his evidence that the company was entitled to withhold payment but that he
objected to the process. That of course is not what the claimant was saying
during the course of the various grievance meetings or indeed in the ET1
application. The steps taken by the company were entirely appropriate, they
were permitted by the memorandum and the claimant was warned about them

on 9 December. He queried non-payment at the time and was given an
explanation after he paid received that the relevant payslip.
Unauthorised absence is conduct that warrants a proper disciplinary
process this is for the defence of the incapable employee.
The leave should have been classified as unpaid leave
The process adopted by the company was hostile, objectionable and
unacceptable.
14. The claimant's grievance procedure was commenced on 10 January 2011 and
we merely refer to the details of the grievance contained in Bundle R1
between pages 96 and 100. It was heard on 20 January 2011 by the Sales
Director, Mr Penelon.
There is no dispute in the aforementioned fact
We find no breach of contract or damage to trust and confidence that might be
contended in respect of that process, including the hearing.
During the hearing Mr Penelon constantly referred to “our HR people say we
can do this” and later referred to “we do not have the in house expertise” the
claimant can only guess he was referring to PBS as it was later explained by the
company Ms Galland did not know what to do.

Employee Conflict
The “bad attitude” adopted by the company could never resolve the
employee conflict in this case. Therefore the valuable advice of the HR-Genius
is doomed to failure. Peninsular Business Services have to provide constructive
advice to resolve issues. However that was not the case they chose to place the
burden of bad attitude and poor conduct upon an incapacitated employee.
“Resolving Employee Conflict
Disputes between employees are almost inevitable simply because nobody agrees
with everybody all the time. However, there are things you can do to minimise the
impact of any dispute.
Prevention is better than cure
Try to create an atmosphere of openness and respect: where employees believe
that they are valued and feel listened to they are less inclined to take things out of
proportion. Robust equal opportunities and anti-bullying policies provide the
foundation for this. You need to build on your policies by ensuring managers
understand how to recognise and effectively resolve issues within the workplace.
In the event that a situation develops into a possible grievance it is important that
it is dealt with promptly.
Formal or Informal?
Speak with the employee to identify the root cause of the problem and what is
needed to make him/her feel that the matter has been resolved. Establish if the
issue can be resolved informally but it is important that you give the impression
that you are taking the matter seriously. Employees must know that it is their
choice as to whether or not their grievances are dealt with through the formal
process and that you are not trying to persuade them one way or the other. You
should also make it clear that if the matter cannot be resolved informally then a
formal procedure will still be open to them.
Listen
Listen with an open mind to employees’ complaints. The majority of grievances
come about as a result of poor communication and perception. Try to put yourself
in the employees’ shoes and consider how things look to them based on what they
know, what was said and what they have seen. There may be a good explanation
for what they are unhappy about but that may require them to be given
information that is not in their possession.
Investigate
Once you’ve obtained details from your employee’s perspective you need to
investigate if that perception is accurate. Most problems come down to issues of
interpretation. What has been said or done may have been meant one way but

interpreted another – often no-one is necessarily at fault for this. The difficulty in
resolving the problem will depend on the willingness of either individual to accept
that they may need to reconsider their position. You will need to look at what
happened and balance whether the incident should not have occurred with
whether the employee raising the grievance has been reasonable in taking offence.
Respond
Communicate your decision. If there is no acceptance of having acted
inappropriately, then there is a high risk that the problem will recur so you need to
take steps to demonstrate that you do not consider the behaviour is acceptable.
Unfortunately, some employees can simply be unreasonable and will not accept
that they may be in error. As far as they are concerned they have no need to
change or apologise and their view is always the right one. Where this is the person
complained of then the outcome of the grievance investigation might be that he or
she needs to be put through a disciplinary process. This will also help to show that
you have done everything you reasonably could in the event of a later dispute. If
you do not tackle this behaviour appropriately then you can be seen as condoning it
and later held responsible for their actions through what is known as vicarious
liability.
Feedback
It is a lot more complicated when it is the person who has brought the grievance
who cannot reconsider their position. All you can do in these circumstances is set
out clearly and as objectively as possible the reasons for your findings. You can
expect this matter to go through an appeal and that the employee will still not
accept the findings. There is little that you can do other than talk to the employee
to explain why you have reached the conclusions you have and make it clear that
this matter has been fully investigated and will not be re-opened.
Be vigilant
You need to keep an eye out for people who raise grievances as a deliberate
attempt to make life difficult for colleagues or managers or to avoid a disciplinary
investigation. In these circumstances you need to consider each issue on its merit.
Consider the nature of the complaint as well as its timing. You should also make
sure that all employees understand that if a grievance is brought with malicious
intent then this may result in them being put through a disciplinary process
themselves.
If handled correctly and sensitively grievances can be resolved amicably and can
improve the working environment. You can use them as a learning tool to improve
working practices and identifying training issues. They can also help promote
better understanding of the diverse cultures within the workplace and sensitivity to
others. All of this can have a positive impact on your workplace by making it more
enjoyable which helps with morale, productivity and staff retention.”

15. The claimant later lodged a second written grievance and Mr Penelon agreed
with Mr Gardiner that he would deal with that as a paper exercise and issue
one decision on both grievances. The claimant waived his right to a second
meeting for the grievance.
There is no dispute in this fact
16. The decision was issued on 9 February 2011 and is at pages 106-112 of the
Exhibit R1. The grievance was rejected by the Sales Director. That was a
decision that he was entitled to reach. Within a short time on 12 February last
the claimant lodged an appeal by letter at page 113 in our R1, this was
referred to Mr Torres. In this context we note also that one of the claimants
complaints is that the process was slow. That is certainly not our conclusion.
Many issues were raised. Mr Gardiner exercised his right by sending long
submissions to: the respondents and the point is illustrated because he wrote
a second appeal to Mr Torres on 25 February 2011 some 13 days after his
first appeal letter.
17. Mr Torres had prepared a response to some matters but that was not sent out
until March and in the meantime, by letter of 28 February 2011 at page 118 in
our R1, the claimant resigned.
18. The claimant contends that there was unreasonable delay on the part the
employers. We do not so find, except that the actual decision on the two
appeals were sent out sometime in March 2011 by Exsto But of course that
was, not overdue at the time that the claimant resigned because (as noted)
his resignation was sent only three days after that second appeal letter was
submitted.
For paragraphs 16 – 17 & 19 the claimant refers the tribunal to a letter dated
September 1st 2011 and the response dated and the unanswered appeal letter
of the 16th
of April 2011

19. We need to deal with one other "breach" issue which was raised in the
pleadings, namely that Mr Gardiner should have been given a phased return
to work. That had been ventilated in correspondence with Mr Baxevanidis
right at the outset of the correspondence. It was something that had been
suggested by the general practitioner. The claimant objects to the response of
his manager, but our conclusion is that his attitude was a reasonable one,
namely; "we can talk about this when you are well enough to come back but it
will be difficult because you are the only designer in the Wiltshire office".
Mr Baxevanids with the assistance of Peninsular Business Services was
changing his story to suit, adopting a must protect the company approach this
is illustrated by the fact that in evidence he stated as such and also stated in
evidence in relation to a computer that the claimant was deliberately
attempting to “cause further inconvenience to the company”.
One can only assume that in the eyes of Mr Baxevanidis that becoming unfit
for work due to an industrial accident is classified a deliberate inconvenience to
an employer. This coupled with a facebook comment visible to the claimant in
Dec 2011 by Mr Baxevanidis illustrates his point further.
“Anyone who doesn’t show up for work for three days, deserves to be sacked
hahahaha…”

20. Finally, we note that one of the complaints is that the grievance was left
unresolved. Of course what Mr Gardiner is saying is "you did not uphold my
grievance". The grievances were answered by the' company and the first
appeal was completed, again rejecting his contentions. It is certainly not the
case that the matter was left unresolved by Exsto. So our conclusion in
respect of constructive dismissal is that this claimant was not entitled to resign
because there were no fundamental breaches of contract. Furthermore if it
were necessary to so find we also quite satisfied that he acted too hastily in
resigning when the appeal process was still ongoing. So his constructive
dismissal complaint fails for two reasons. It is often said that to resign and
allege constructive dismissal is a gamble because of the risk of failure and
sadly that is the case here.
The claimant refers the tribunal to the unanswered and unacknowledged
grievance letter dated 16th
April 2011. This letter gives the reasons why a
reconsideration of resignation could not be considered.
Medical records show the claimant could have been hospitalised at this
time, in respect of the capability of the claimant the employers had done what
they had to do including illegal activity not what they should or could have
done.
It was well beyond the capability of the claimant to decide the correct time
to resign, as far as he was concerned he had already been dismissed for poor
conduct several times by the company, at this point he dismissed his employer
for gross misconduct that was the purpose of the resignation and by accepting
it, the respondents had accepted their misconduct.
The following paragraphs 20-28 refer to the claimants’ claims for disability they
are quite clearly in error and show a decision beyond the capability of the
tribunal.
Under the Equality Act 2010, disability is defined as:
“…any physical or mental impairment which has a substantial and long-term
adverse effect on a person's ability to carry out normal day-to-day activities.”
At the hearing there were Dr’s statements of fitness for 364 consecutive
days advising the claimant to refrain from working.
The claimant had his medical records but these were refused for
consideration by Judge Owen.

In a report dated Sept 2011 at the same time as the hearing the claimant
was found to “have a significant level of disability due to anxiety and
depression” six months later his condition had not changed.
In a successful claim for industrial injury benefit the claimant was once again
identified as disabled by impaired mental equilibrium.
Is my employee disabled?
This not a question an ordinary employer or employee has the capability
to answer. The case of Hatton v Sutherland makes this clear, making a rock
solid defense of ignorance.
However Peninsular Business Services in their guise of the HR-Genius
should know and do know, by their conduct they are using the loophole
created by the ignorance of the other parties to create an insurmountable
barrier for an incapacitated claimant to pass.
The fact that the claimant is seen as incapacitated by significant disability
by the DWP still does not deter Peninsular Business Services from using the
loophole to further dispute the facts.

“Is My Employee Disabled?
Sometimes, the fact that someone is disabled is clear, whereas at other times it
may not be quite so obvious. As an employer, you need to identify whether or not
your employee is classed as disabled, along with the nature of any disabilities, in
order to work out what, if any, reasonable adjustments you need to consider.
Definition of disability
Under the Equality Act 2010, disability is defined as:
“…any physical or mental impairment which has a substantial and long-term
adverse effect on a person's ability to carry out normal day-to-day activities.”
Some conditions are automatically viewed as a disability. For example: a person
who has cancer, HIV infection or Multiple Sclerosis (MS) is viewed as a disabled
person from the point of diagnosis, even if the effects of those conditions are only
mild at the time. Similarly, someone who is blind, sight impaired or partially
sighted will also be automatically classed as disabled. Sight impairment will not
cover long or short sightedness that is corrected by glasses or lenses.
When a person is not automatically classed as disabled, it is the effect of any
condition(s), rather than the condition(s) themselves, that need to be considered.
Look at what they cannot do, or can only do with difficulty, rather than what they
can do normally.
What is ‘substantial’?
Substantial is defined as something that is not minor or trivial, but there is,
unfortunately, no clearer guidance than that. Consider if the condition prevents
your employee from carrying out, repeating or sustaining any activity. You can
work out how substantial the impairment is by looking at how your employee can
perform an activity taking into account any coping strategies that they have.
Recurring conditions
Disability can be harder to identify when an individual has a condition that is not
present all the time but, instead, has periodic “flare ups” which can be severe. In
these situations consider if the impairment had a substantial adverse impact in the
past and the likelihood of a substantial adverse impact recurring again within a 12
month period.
Where a condition is sporadic, such as epilepsy, it will be treated as a disability
when the length of time the impairment lasted for was at least 12 months or the
effects are likely to recur for at least 12 months- consider the overall period of time
during which the condition is likely to last.

What if the condition is controlled?
When deciding if someone will be classed as disabled consider what they would be
like without any treatment or corrective measures. If any continuing treatment
would lead to a relapse if it was stopped, then assess them on what they would be
like without that treatment.
Some conditions may or may not count as a disability depending on how they are
controlled. For example, someone with Diabetes that is controlled by medication,
such as insulin injections, is likely to be considered disabled whereas someone with
Diabetes that is controlled by diet is not.”
21. We move to look at the allegations of disability discrimination. Judge Sara
identified these as three different potential claims under s.13, s.15 and s.26 of
the Equality Act 2010. Firstly, the claimant contends that because of disability
(a protected characteristic) he had been treated less favourably than Exsto
would treat someone else who was not disabled. Secondly, the complaint
might be interpreted as saying that he was unfavourably treated because of
something arising in consequence of the disability. Thirdly, we have to decide
whether he was harassed by the respondent's conduct.
22. The fundamental first requirement of any claimant who contends that he was
discriminated against on the grounds of his or her disability is that he must
produce evidence to show that he was disabled. It will also normally be
necessary for him to demonstrate on the balance of probability either that the
employer knew that he was disabled or ought reasonably to have known this
HR-Genius Case Study: Absence With Depression
I have an employee who is absent with depression according to her sick note and
has been on leave for 3 weeks. I personally feel she is trying to take advantage of
time off work and she has never showed signs of any form of depression whilst at
work. Her performance is average at best. What can I do to resolve the situation?
You need to be extremely careful when dealing with issues of depression. Just
because an individual has not shown any signs of depression at work that you have
recognised does not mean that they have not been suffering with it. If her
depression counts as a disability and you take action against her as a result of it,
you could find yourself facing a claim for disability discrimination. Even if it is not a
disability, you could run the risk of an unfair dismissal claim.
If your employee returns after a short period of sickness absence then you should
carry out a return to work interview with her as you would with any employee who
has been off sick. Check that she is recovered enough to return to work now and if
there is anything she needs to help her stay back at work. Ask her if she felt that
anything in particular caused the depression. If she identifies any issues with work
then you can look at how she works to see if there are any changes that could
resolve your concerns, prevent the depression from recurring and make her more
productive and effective. You may find that she is aware that she is not performing
well and this could be because of, or the reason for, the depression.

If she is signed off work for a further period of depression, you may want to seek
her permission to contact her GP for a medical report to see how long this is likely
to last and if there are any issues at work that are triggering it. This will let you
know whether or not you need to consider making any adjustments to her work. If
she is likely to be off sick for the foreseeable future or there is some aspect of her
work that is triggering this that cannot be adjusted, then you may have to consider
using your capability procedure to see if there is any way her employment can
continue.
The only reason you are considering taking action about her standard of work now
is because of her sickness and that is a very dangerous approach, particularly if you
are not tackling any other staff whose performance is below average. This opens
you up to the very real accusation that if she had not been diagnosed with
depression, you would not have done anything and that puts you at high risk of a
claim of disability discrimination.
Treat this as an opportunity to discuss with your employee how she is coping with
the role and look at introducing regular performance appraisals for all staff. This
will allow you to act consistently and improve the performance of all your
employees as well as, it is hoped, preventing or reducing future sickness absence.
23. The claimant has the burden of showing that he was disabled within the
meaning of the Equality Act. He must present evidence that shows that on the
balance of probability he had a disability. The evidence here falls into two
categories. The only documents that were in existence before his resignation
were three typically brief general practitioners' certificates from Dr Palmer and
other GP's, being statement of "fitness for work". That of 10 December and
quotes "stress" and signs the claimant off work for two weeks. A later
certificate of 21 December last records "stress and low mood" and signed the
claimant off work for another month. There is a further certificate dated 11
February 2011 which refers to "stress, anxiety and depression". This is the
first time that: the word "depression" had been used of Mr Gardiner. We
remind ourselves that stress is not normally regarded as a disability within the
meaning of the legislation, unless it is connected with depression.
24. The claimant who contends depression as disability needs to satisfy a
Tribunal either that, at the relevant time, he had an Impairment which had
already lasted for 12 months, or was likely to last that time. or was likely to last
for' the rest of his life. In this case of course Mr Gardiner resigned on 28
February 2011 and it is clearly necessary for him to show to the Tribunal that
he was disabled by depression (or in some other way) at the time of his
resignation. It is clear that the certificates of "fitness for work" do not contain
anything like sufficient detail to even begin to prove that he had had
depression for 12 months at that time (because of course he had not), nor
that it was likely to last for a period of 12 months. Even 11 February 2011
certificate only. signed him off for one months absence.
25. The claimant has also pointed out the medical evidence prepared at the
request of the respondent's advisors. At pages 20 and 21 in the Bundle R1
there is a question and answer report from Dr Ruth Palmer of Rowden
Surgery dated 24 May 2011. The questions are of course in a fairly standard
format designed to elicit whether the employee was suffering from a disability.

26. In the report Dr Palmer is asked at question 7 "Has the effect of such
impairment lasted or likely to last for at least 12 months or the rest of the
claimant's life?". Her answer is "It may last over 12 months" (our emphasis). In
the final question about depression, Dr Palmer records that the claimant was
not currently capable of performing his work but was "likely to become so
(capable) at some time in the future". Putting together these two answers it is
perfectly clear that the medical report does not demonstrate that Mr Gardiner
had a disability (depression) which had already lasted 12 months or was likely
to last that time or for the rest of his life. In the circumstances the only
decision which the Tribunal can reach in this context is to find that this
claimant has not got even close to satisfying the burden on him. Accordingly,
we find that he was not "disabled" as defined in s.6 of the Equality Act at the
relevant time and is not therefore able to pursue the allegation of disability
discrimination. Specifically we are satisfied that the claimant did not have a
long-term impairment as defined in paragraph 2(1) of part 1 of schedule 1 of
the Act.
27. Since the claimant has not shown that he was disabled he cannot succeed
with his claim for disability discrimination. However for the sake of
completeness we make other findings in respect of the allegations of disability
discrimination. Firstly, it is the claimant's credit that he was honest about an
issue where others might have been inclined to re-write their story. He
acknowledged openly that he had never at any time before he resigned
alleged to Exsto or any of its managers that he was disabled or contended
that they had breached his rights under what is now the Equality Act. He also
accepted that they would not have been aware that he ever thought that he
had been the subject of disability discrimination; In the circumstances, the
claimant clearly cannot contend that his former employers knew or ought
reasonably to have known that he was disabled. That is: not surprising; there
are no documents in the Bundle pre-dating the claimant's resignation that
indicate that he was contending that he had been discriminated against in that
way.
28. There is a further reason why the disability discrimination claim must fail. Mr
Gardiner has supplied a huge amount of information about almost every
aspect of his case, except in respect of discrimination. The ET1 does allege
that the respondent's bullying, illegal deductions from his pay and the poor
handling of the grievances caused stress and depression. However, we have
found that all these (and the other) contentions were ill-founded. We are
satisfied that there was no less favourable treatment or harassment of
the claimant that was because of the protected characteristic; was less
favourable than any comparator or was because of something arising in
consequence of his medical condition.
29. For all the above reasons therefore, the allegation of disability discrimination
is dismissed.
30. We turn to deal with the allegation of race discrimination. Once again we have
been assisted by Judge Sara's summary of the issues. Our conclusion is that
the respondents did not treat the claimant less favourably than they would
have treated a French person, nor did they apply a provision which had a
disparate effect on the claimant as an `English speaker. The latter allegation
relates to the fact that the grievance interview was conducted by Mr Penelon
and the appeal by Mr Torres, the Chief Executive. For both of them French is
their first language. Our reasons for this conclusion are as follows.

31. We heard evidence from both managers. It was perfectly evident that they
had good skills both in spoken and written English We have heard nothing.
That would remotely persuade us that the claimant was put at a disadvantage
in the conduct of the grievance or the appeal because he did not speak the
same language as the two managers.
There are 10 paragraphs justifying why the claimant was not disabled when
clearly he is, and this flimsy statement to justify the English speaking ability of
the French managers.
It is evident that most if not all of the correspondence from the respondents
originate from one source: Peninsular Business services.
Mr Torres needed an interpreter at the grievance appeal hearing where he
agreed with the claimant that the company absence memorandum had been
superseded.
Despite being excused from proceedings by Judge Sara his witness
statement was written by Mr Reynolds of PBS and is wrong.

32. The claimant has made reference to one single state of affairs which he relies
on as a comparison. He gave evidence about a French employee of Exsto
who was delayed during the flight problems resulting from the Icelandic
volcanic ash situation, several months ago. It was clear, however, that the
problem and its solution were entirely different from what occurred in Mr
Gardiner's case. First of all the grounding of aircraft lasted several days;
whereas Mr Gardiner's flight cancellation happened as a result of a one day
strike. Secondly, and crucially the other employee apparently requested
assistance. That of course is not something that this claimant did. Our
conclusion, therefore, is that the contention of race discrimination is also ill
founded and will be dismissed.
The French employee used as a comparator both by Mr Penelon and the
Tribunal was unfair – he was French, worked in France and was subject of
totally different contractual obligations to the claimant, his flight was delayed
by an ash cloud.
The circumstances in this case are entirely different. To say the
cancellation happened due to a one day strike is correct, however to compare
precisely timed industrial action designed to cause the maximum amount of
disruption to a cloud of dust is incorrect.
The one day strike was timed to coincide with a very busy time for
Spanish travellers and followed on from severe disruption to Northern
European flights caused by snow.
Mr Baxevanidis and Mr Bezard were aware of the weather disruptions
having been trapped in Amsterdam for the week arriving in London at 8am on
the 3rd
of December on that day missing the office Christmas party.
33.Finally we deal with the claims for holiday pay: and unauthorised deductions.
We have already made a finding that the claimant as not entitled to be paid for
the three days absence in December 2010. He has not offered any evidence
that there were any other deductions from his wages. We have not heard any
contention that holiday pay was due to him and unpaid. Accordingly, these
claims also will be dismissed.
The facts presented at the hearing show there were in fact three. The 2nd
in relation to an unauthorised absence associated with the industrial accident.
The 3rd
from the January salary and finally it is entirely unclear from the
final pay slip of May 2011 of what the final payment consisted of.

It is quite clear form this judgment and others that the presenting of a
case of such complex issues is beyond the capability of an individual.
Peninsular Business Services are aware of this and by their conduct
exploit employers, employees and the tribunal alike.
What is of great concern to the claimant is despite the excellent views
listed in its literature this company has 26,000 customers, all of whom can sack
anyone whenever they like, without calling anybody in?
a) “HR Genius is integrated into their HR and health & safety departments
allowing business owners, directors or senior managers to save time on
worrying about staff-related or safety issues and concentrate on what
really matters; making their business a success.”
b) “The size of HR Genius ensures that we have been able to attract and
retain the very best employees from the HR, Health & Safety and Legal
Services Industry and create this specialist service for every business.”
c) “We can guide you through any issue you may have, whether related to
Employment Law or Health & Safety at work.”
“How To Avoid Being Taken To A Tribunal
Start with the basics: meet your statutory and contractual obligations. There is no
better way to guarantee a Tribunal claim then by not paying staff properly or on
time; so, always pay promptly. Provide a statement of main terms and conditions -
with evidence that it has been provided. This can help avoid disputes over
contractual terms.
Review your recruitment and promotion procedures to make sure that they are fair
and transparent to try and avoid any arguments of favouritism or discrimination.
Update your equal opportunities policy; review it with your employees. That way
everyone knows it is an issue the company takes seriously.
Be fair and consistent. Many employers have the tendency to tolerate problems
with staff until they suddenly decide that enough is enough and they want to
dismiss. Tackle any issues as soon as they arise so that your employees are fully
aware of where they stand and the consequences of their actions.
Follow correct procedures. Any issues that occur should be handled promptly and
consistently through an appropriate process. Remember that procedures are as
much for improving performance and resolving issues as they are for punishing
people. Keep employees informed of any issues that could affect them.

Deal with grievances quickly and fully. Employees need to know that the company
culture supports the raising of issues and will thoroughly and fairly investigate any
issues. Consider the employee’s perspective and make sure you avoid problems
that could be resolved through clearer communication.
Always:
Pay promptly and accurately
Issue terms and conditions
Tackle issues as they arise
Be consistent and reasonable
Communicate
Never:
Withhold payments that are due
Ignore performance issues or grievances
Bypass procedures
Make decisions without investigating
Create an uneven playing field”
Contrary to the advice of the HR-Genius this is a case where the
employer with the support and advice of the HR-Genius did all of the following.
Withheld payments that were due
Ignored performance issues or grievances
Bypassed procedures
Made decisions without investigating
Created an uneven playing field
In the process did not
Pay promptly and accurately
Issue terms and conditions
Tackle issues as they arise
Be consistent and reasonable
Communicate

How is it possible for an incapacitated employee to retain an ounce
“trust and confidence” in an employer who acted in such a manner with the
help of the HR-Genius and then when challenged with the advice of the HR-
Genius changed their story to suit the requirements of the tribunal?
The claimant has been set an impossible task by Peninsular Business
Services to overturn their changing of the story to suit, actions which are
contrary to their duties to the public and the tribunal. These actions are an
abuse of position and the company needs to be held accountable.

Annex 1

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Annex 1