In person For the v Mr Jetani, Managing Director Interpreter: Miss L Onica, Romanian speaking — 2021

Mr Andrei Tocu worked for Nemaste Village Limited as a kitchen porter from March 2018 and was originally contracted for 40 hours per week at £8.15 per hour. During the pandemic the restaurant reduced its trading, and the tribunal found that in September and October 2020 he worked part time and was paid partly in cash at his request. On 9 December 2020 and again at a further meeting on 15 January 2021, the respondent asked him to return on part-time hours with the remaining pay topped up under the Government Furlough Scheme, but he wanted to return only on full-time hours.

The direct race discrimination claim failed. The tribunal found the reason for dismissal was the claimant's refusal to return to work part time, not his Romanian nationality, and it said the respondent would have treated an employee of any nationality in the same way on the same facts. The tribunal therefore held that the dismissal was not race discrimination within section 13 of the Equality Act 2010, with the comparison exercised by reference to a hypothetical comparator under section 23.

The unfair dismissal claim also failed. The tribunal held that redundancy was not the true situation because the work continued, but it accepted that dismissal for some other substantial reason was a potentially fair reason under section 98 of the Employment Rights Act 1996. Applying section 98(4), it found the respondent acted fairly and reasonably: the claimant had been offered part-time work with furlough top-up, warned in writing on 22 December 2020 that refusal could lead to termination, and still declined to return when the second meeting took place on 15 January 2021. The tribunal said the decision fell within the range of a reasonable response.

The unlawful deduction of wages claim was dismissed because the claimant admitted he had been paid cash during September to November 2020, and the tribunal was not satisfied it should treat that period as an unlawful deduction claim. The holiday pay claim succeeded: the tribunal accepted the claimant had accrued 16 days' holiday pay, calculated at £743.04, but reduced that by £525.00 because the respondent had already paid redundancy pay in error. The final order was for the respondent to pay £218.04. The respondent's counterclaim was dismissed and no order was made on it.