Background:

The claimant was employed as a home claims adviser from March 2012 until his contract was terminated in September 2018.   The claimant was enrolled on the respondent’s private health insurance scheme and had taken an upgraded version of the scheme offering support until retirement age in the event of incapacity.

The claimant was disabled in line with the Equality Act 2010 by reason of Autistic Spectrum Disorder (‘ASD’).   From 2014 until October 2017 the claimant was absent due to anxiety and depression.  The claimant received 80% of his salary under the health insurance scheme.  Following an assessment there was a four stage return to work plan.  This allowed for the claimant to take calls again in April 2018 on a phased return but this did not go well.   He stated that he could not talk on the phone or deal with things.

In August 2018 the claimant was told that he could cease employment and the insurer would pick up the payments.   He asked if that would take him up to state pension age.  This was confirmed and the claimant emailed to say that he accepted the ‘Pay Direct’ scheme.  The claimant then brought a claim for unfair dismissal and disability discrimination in relation to the return to work arrangements.

Outcome:

The issue was whether the termination was due to the freely given mutual consent.  Whilst this question was not directly asked of the Tribunal at first instance it was held by the EAT that it was a question of fact and it was appropriate for the Tribunal to reach the conclusion that the consent was freely given.  As a result, there was no error of law in this respect.

There were claims made on the basis of disability discrimination yet they were found to have been made out of time and the Tribunal did not exercise its discretion in extending time.   One point of appeal was about the adjustments made at the Tribunal hearing.  This related to the fact that the form of cross-examination as set down by one Judge through a case management hearing was changed.  However, there was no prejudice shown to the claimant and the Tribunal found that there was no substantive unfairness to the claimant in how the cross-examination was conducted.   Therefore, the claim was rejected.

Practical Guidance for Employers:

The basis of this case related to whether there was freely given consent for mutual termination.   It was primarily based upon a rather beneficial insurance scheme that the claimant had entered into.  It was found that whether there was freely given consent was a factual matter and whilst it had not been specifically addressed legally by the Tribunal it was sufficiently examined factually for a decision to be made which the EAT could stand over.  This did arise out of fairly unique circumstances but it does provide another example of the claimant bearing the burden for proving that a dismissal had taken place.

https://assets.publishing.service.gov.uk/media/64f85611a78c5f000d88718d/Mr_Matthew_Riley_v_Direct_Line_Insurance_Group_PLC__2023__EAT_118.pdf