Mr Shenol Deniz v Aspers (Stratford City) Limited — 2023

Mr Shenol Deniz worked as a croupier for Aspers (Stratford City) Limited from 23 August 2016 to 15 January 2023. He brought a constructive unfair dismissal claim and direct race and sex discrimination claims. The tribunal accepted that he had been investigated in May 2022 after a colleague’s grievance, that a locker search took place in May 2022, that he later had pay concerns, and that he resigned on 27 December 2022 with employment ending on 15 January 2023.

The tribunal found that the respondent had reasonable and proper cause to investigate the colleague’s grievance, that the July 2022 chip incident did not amount to a failure to protect him on the facts known at the time, and that his pay was within the applicable band. It did find, however, that the respondent failed to give him an adequate means of raising concerns between September and 18 November 2022, and that the grievance process took longer than he had been told it would, without interim communication. The long-service award due in 2021 was also delayed until the week before his employment ended, but the tribunal treated that as of very minor importance.

Applying the constructive dismissal authorities, including the cumulative breach and last-straw approach in Omilaju and Kaur, the tribunal held that the combination of the unresolved investigation, the lack of a route to raise pay and safety concerns, the grievance delay, and the pay and night-shift frustrations amounted to a fundamental breach of the implied term of trust and confidence. It found that the claimant resigned in part in response to that breach, did not affirm the contract, and was therefore constructively dismissed. The respondent did not contend that any dismissal would have been fair, so the dismissal was unfair.

The direct race and sex discrimination claims failed. The tribunal accepted that the claimant had experienced detriments, but found no evidential basis to infer less favourable treatment because of race or sex: the investigation arose because a serious complaint had been made against him, the grievance delay was due to oversight and Christmas-period availability, the pay differences were explained by market-related pay decisions for later recruits, and the flexible-working and grievance handling issues were not shown to have been treated differently because of protected characteristics. The dismissal itself was also not discriminatory because none of the matters giving rise to the breach were done because of race or sex.

On remedy, the claimant sought compensation only. The tribunal awarded a basic award of £3,402 and a compensatory award of £12,943.60, made up of £12,064 net earnings loss, £379.60 pension loss, and £500 for loss of statutory rights. It rejected the mitigation argument and made no Polkey deduction, so the total award was £16,345.60. The prescribed element for recoupment was £12,064 for the period 15 January 2023 to 13 July 2023, with a balance of £4,281.60.