Case 2602352/2018 · Employment Tribunal
Mr R Szarkowski v DFS Trading Ltd — 2021
- Case reference
- 2602352/2018
- Decision date
- 8 January 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Blackwell Members
- Venue
- Nottingham
- Panel members
- Mr G Austin, Mrs R Wills
Parties
2 namedClaimant
Mr R Szarkowski
Respondent
Key findings
Tribunal's reasoningThe tribunal found that Mr Szarkowski’s contractual hourly rate was £7.94 when he was a Warehouse Assistant and £8.76 when he became a CNC Machinist on 26 May 2017. It rejected his evidence that there had been an oral agreement to increase the rate to £12 per hour, preferred Mr McDermott’s evidence on that point, and accepted DFS’s evidence that the later payment of £4,296.24 in October 2018 was made on a commercial basis during the run-up to litigation. The unauthorised deduction from wages claim therefore failed.
On the race discrimination claim about pay, the tribunal treated the issue as direct discrimination under section 13 of the Equality Act 2010. It accepted that Messrs Adams and Wymant were proper comparators, but found the reason Mr Szarkowski was not paid at the higher rate was that he had not reached the skill level required for the higher CNC rate, including the ability to work without another skilled operator constantly available. The tribunal found no evidence that Polish origin influenced the pay decision and also found the refusal to pay the higher rate was rational, so that claim failed.
The tribunal found that the 10 July 2018 incident involved significant fire damage to the CNC machine and accepted DFS’s evidence that this could only have happened if the cutter had been in contact with the wood while operating. It found, on the balance of probabilities, that Mr Szarkowski left the machine running, went for a break, and that combustion occurred. The dismissal was said to be for conduct, namely breach of health and safety and negligence in the role of CNC wood machinist.
The section 104 Employment Rights Act 1996 claim failed because the tribunal found Mr Szarkowski’s emails to Mr McDermott were no more than requests for a pay rise and did not amount to asserting that a statutory right had been infringed. It also accepted Mr McKay’s evidence that he did not know of any alleged pay complaint when he decided to dismiss. The separate race discrimination claim in respect of dismissal failed for the same reasons: the tribunal had already rejected the underlying pay discrimination allegation, and it found the dismissal was not influenced by race or by any complaints about pay. All claims were dismissed.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | The tribunal found the contractual rate of pay was £8.76 per hour from 26 May 2017 and rejected any oral variation to £12 per hour. It accepted the October 2018 payment of £4,296.24 was made on a commercial basis during ACAS discussions, not as evidence of a contractual entitlement. | Dismissed | — | — |
| Race discrimination | Direct discrimination claim in respect of pay, pleaded on the basis of Polish nationality/language. The tribunal accepted the comparators identified by the claimant but found his pay level was explained by his skill level and that nothing in the evidence suggested race influenced the decision. | Dismissed | Race | — |
| Unfair dismissal | Section 104 ERA 1996 claim based on alleged assertion of the right not to suffer unlawful deductions. The tribunal found the emails were requests for a pay rise rather than assertions that a statutory right had been infringed, and in any event the dismissing manager did not know of any such complaint. | Dismissed | — | — |
| Race discrimination | Direct discrimination claim relating to dismissal. The tribunal found the dismissal was for conduct after the CNC machine incident, not because of race, and also accepted that the dismissing manager was unaware of the claimant's earlier pay complaints. | Dismissed | Race | — |
Legal tests applied
2 references- s.13 Equality Act 2010
- s.104 Employment Rights Act 1996
Official outcome judgment PDF
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