Mr M Jarosinski v Nestle UK Ltd Heard: Via Cloud Video Platform in the Midlands (East) Region — 2021

Mr Jarosinski, a Polish national, brought consolidated claims arising from events between 2012 and 2020. The tribunal dismissed the claim for wrongful dismissal/notice pay upon withdrawal after finding that notice pay had already been paid. It dismissed the direct race discrimination, race harassment and victimisation claims. It upheld unfair dismissal, but found that no monetary award should be made because it assessed the claimant as 100% responsible for his dismissal and concluded there was a 100% chance he would have been dismissed in any event.

On the race discrimination allegations, the tribunal rejected the case that the claimant was treated less favourably because of nationality in relation to pay on transfer, annual pay reviews, reward points, an unsuccessful application for Conformance Manager, disciplinary action, sick pay, management meetings and his dismissal. It found that the claimant’s pay outcomes were driven by performance ratings and role circumstances, that his proposed comparators were not in materially similar circumstances, and that the respondent’s witnesses, particularly Ms Muthana and Mr Peplow, were credible. Applying the section 136 burden of proof, the tribunal found no facts from which it could infer discriminatory treatment.

The harassment claim also failed. The tribunal found that some of the alleged conduct did not happen, and that other incidents were management responses to the claimant’s behaviour or performance rather than conduct related to race. It accepted that the claimant found some interactions unwanted, but held that the conduct was not aimed at violating his dignity or creating a hostile environment, and that it was not reasonable to characterise the respondent’s actions in that way. On victimisation, the tribunal held that only the August 2014 grievance referring to the Equality Act and the June 2020 tribunal proceedings were protected acts; the alleged 2016 and 2019 protected acts were not. It rejected the alleged detriments said to follow from the protected acts, finding that each had a non-discriminatory explanation or did not occur.

On unfair dismissal, the tribunal accepted the respondent’s case that the reason for dismissal was a fundamental and irretrievable breakdown in working relationships and trust and confidence, amounting to some other substantial reason under section 98 ERA 1996. It held, however, that the process was procedurally unfair because the claimant was not warned that dismissal was being considered, was given no proper notice of the purpose of the 16 December 2020 meeting, and there was no pre-dismissal investigation. The tribunal nevertheless found that the claimant’s own conduct directly caused the dismissal, and that he would have been dismissed even had a fair procedure been followed, so the basic and compensatory awards were reduced to nil.