Mr D Niedzialek v Korea Foods Company Ltd — 2023

Mr Niedzialek was Warehouse Manager at the New Malden warehouse. After two employees were dismissed for theft, five operatives walked out in protest. He asked for an independent investigation into the walkout and later objected when Mr Oh, one of the walkout employees, was reengaged and returned to work. He initially resigned after the refusal to investigate, then withdrew that resignation, and later resigned again when Mr Oh returned.

On the constructive unfair dismissal claim, the tribunal accepted that the claimant resigned in response to the refusal to investigate and later in response to Mr Oh's return, but it held that neither event amounted to a repudiatory breach of contract. The tribunal said the respondent's approach to the walkout was unusually conciliatory, but that the senior managers were entitled to decide how to deal with the staffing problem. It also found that the handling of Mr Oh's return was tactless and caused unnecessary upset, but remained within the respondent's managerial prerogative and did not destroy mutual trust and confidence.

On direct race discrimination, the tribunal considered that the claimant had established facts capable of giving rise to an inference of discrimination, including the handling of the walkout, references to Korean employees as a distinct group, and some other disciplinary examples involving Korean staff. The respondent then explained its decisions by reference to staffing pressures, the informal workplace culture, and the view that the walkout and Mr Oh's return should be handled pragmatically. The tribunal accepted that explanation and found that race was not the reason for the treatment complained of.

The tribunal also found that Mr Niedzialek had not raised a pre-resignation grievance about Mr Oh's return and that there was no basis for an appeal right in relation to the earlier management decisions. Both claims therefore failed and the tribunal made no monetary award.