Member Watt Tribunal Member Lithgow Mrs R Kral v Represented by Mr W McParland Solicitor Nuffield Health — 2024

The tribunal found that the claimant, a Polish housekeeper at the respondent's Edinburgh clinic, did not resign during her private conversation with JDP on 14 April 2023. It accepted her evidence that she was only saying she was looking for another job and asking for a reference, and found that she later told JDP on 8 May 2023 that she had decided not to leave after all. On 11 May 2023 SB handed her a letter purporting to accept a verbal resignation said to have been given on 14 April 2023; the claimant immediately denied that she had resigned and confirmed that position again in her email of 14 May 2023. Her employment ended on 31 May 2023.

On unfair dismissal, the tribunal held that the claimant had been dismissed by the respondent on 11 May 2023. It rejected the respondent's case that the claimant had resigned and held that, in any event, the respondent had not properly pleaded a fair reason for dismissal in its ET3. The tribunal further held that, even if some other substantial reason had been in issue, the respondent had not shown that it acted reasonably under section 98(4) ERA 1996: it did not ask for written notice, did not timeously acknowledge the supposed resignation, and did not take steps to clarify the misunderstanding once the issue became apparent.

On indirect race discrimination, the tribunal found that the respondent had a practice of accepting oral resignations. It held that this put Polish employees and/or those whose first language was not English at a particular disadvantage, because resignation is a significant step and the risk of misunderstanding is greater where English is not the employee's first language. The tribunal found that the claimant was placed at that disadvantage when her 14 April 2023 discussion was misinterpreted as a resignation. No justification was advanced, so the claim succeeded. The tribunal awarded £8,463.43 for unfair dismissal, made up of a basic award of £2,239.74 and a compensatory award of £6,223.69, with the compensatory element ceasing when the claimant obtained NHS employment on 25 September 2023. For indirect race discrimination, it awarded £11,500 for injury to feelings, described as the lower end of the middle Vento band, plus £1,025.86 interest. The complaints of wrongful dismissal and unauthorised deductions from wages were no longer insisted upon and were dismissed following withdrawal.