Mrs A Jarzyna v Hypnos Limited — 2021

Mrs A Jarzyna was employed by Hypnos Limited as a Value Team Leader from 3 March 2015 until her summary dismissal on 18 November 2019. She brought claims of unfair dismissal and discrimination on the grounds of race and sex. The respondent did not participate in the hearing. The tribunal therefore proceeded on the material before it, including the claimant's statement and the documentary evidence she had filed.

The tribunal found that the respondent said the reason for dismissal was gross misconduct for making racist and derogatory comments about two co-workers. It accepted that gross misconduct was a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996, but held that it could not find the respondent genuinely believed in that reason because no evidence was given on the respondent's behalf. It also found the dismissal procedurally unfair because the claimant was not given an appeal hearing. The tribunal referred to section 98(4) ERA 1996 and the Polkey principle when considering fairness and the likely effect of any procedural defect.

On the evidence, the tribunal preferred the colleague statements, particularly Mr White's account, and found that the claimant did use offensive and racist language both in and out of the workplace. It found that Mr Bowler and Ms Mateova had each raised grievances against her alleging racist remarks, and that the respondent investigated those grievances before disciplinary action was taken. The tribunal rejected the claimant's assertion that the grievances were invented or motivated by race or sex.

The race and sex discrimination claims were dismissed. The tribunal found no prima facie case that the claimant had been treated less favourably than a comparator because of race or nationality, and it found no evidence that the disciplinary process or dismissal was because of race or sex. It also held that the claimant's comparison with the respondent's response to an alleged remark by Mr Bowler in May 2019 was not comparable because no formal grievance had been raised in that incident. Liability was decided only; the tribunal ordered the claimant to serve a schedule of loss and supporting evidence and listed a three-hour remedy hearing before a judge sitting alone.