Mr K Charzynski, Claimant’s son For the v Mr J Brotherton, Senior Consultant Litigation — 2022

Mr A Charzynski was employed by Clearview Glaziers Company Limited from 30 November 2016 as a fitter. The tribunal found that, during the early months of the coronavirus pandemic, he was furloughed, knew he might be required to return at short notice, and then travelled to Poland after his request for annual leave had been refused. The tribunal accepted that his English was limited and that the parties communicated in part through his son and through colleagues, which was relevant to how his words should be understood.

The central issue was whether the claimant resigned or was dismissed. The tribunal found that comments allegedly made on 30 June 2020 and 13 July 2020, conveyed through translation, were ambiguous and did not amount to a clear and unambiguous resignation. It held that the respondent itself did not understand him to have resigned and that a reasonable employer would not have treated the claimant’s remarks, or his absence after returning from Poland, as a resignation. The respondent’s issuing of a P45 on 14 July 2020 was found to be the act that terminated the employment, so the claimant was dismissed on that date.

The tribunal held that the dismissal was unfair because the respondent acted unreasonably in treating the situation as sufficient to dismiss without a formal meeting, warning, accompaniment or appeal process, particularly given the claimant’s language difficulties and the uncertainty about his intentions. It also found that no Polkey reduction was justified because the respondent failed to show any realistic chance that the employment would have ended anyway had a fair process been followed. However, the tribunal found that the claimant’s conduct contributed significantly to the dismissal: by travelling to Poland after leave was refused and remaining out of contact, he was 50% responsible for the confusion. The basic award and compensatory award were each reduced by 50%, resulting in awards of £675 and £2,568.55 respectively.

The claimant’s race discrimination complaint was not pursued at the hearing and was dismissed as withdrawn. The tribunal noted that the allegation had been made in very general terms and that the only identified incident concerned a Christmas party in December 2017, but no merits determination was made because the complaint was withdrawn.