Ms K Zena v Verifone UK Ltd — 2023

Ms K Zena joined Verifone UK Ltd on 29 July 2015 as Europe regional controller and later became EMEA financial controller. The tribunal found that in early September 2020 Mr Rebain decided to retain Dawid Makowski after his resignation by moving the claimant's duties from Uxbridge to Warsaw and giving those duties to him in a new role, while keeping the work itself more or less the same. It rejected the respondent's case that the dismissal flowed from a general redundancy situation or from the August 2020 financial review, and found that the 27 September 2020 business case showed the claimant's role alone at risk and Mr Makowski in the proposed Warsaw role.

The tribunal held the unfair dismissal claim was well founded. It found the October 2020 consultation meetings were not a genuine opportunity for the claimant to influence the outcome and that the respondent had planned how to handle questions about relocation to Poland and about Mr Makowski. The dismissal was therefore unfair, and the later appeal did not cure that unfairness because Ms Wiersma was not treated as a genuinely separate appeal officer and the appeal investigation was not carried out with an open mind. Remedy, including Polkey, was left to a later hearing.

The direct race discrimination claim was dismissed. Although the claimant was black and Mr Makowski was not, the tribunal found the relevant comparators were not materially similar and concluded that the burden of proof under s.136 EqA did not shift on the dismissal and redundancy allegations. It also rejected the complaint about the termination payment, finding that the respondent had already decided not to replicate the enhanced redundancy terms used in the 2018 restructuring for 2020 and 2021 reorganisations, so race played no part.

The wages and breach of contract claims about RSU-related cash equivalents also failed. The tribunal accepted the respondent's explanation that the payslips and its schedule were consistent with cash equivalents being paid in the relevant vesting months and found that the claimant had not proved any further sum was due after October 2020. On victimisation, the complaints about the bonus and the alleged implication that she was mentally ill were dismissed, but the complaints about the discrimination appeal investigation succeeded by majority because the tribunal found the respondent gave only an inadequate and superficial response to the discrimination allegations after the protected act of 1 November 2020.