Member Mrs E A Farrell Tribunal Member Mr J Burnett Ms Aleksandra Zarzycka v B & M Sausages Limited — 2020

The claimant worked as a shop assistant for the respondent from 18 December 2015 to 17 August 2019. She was dismissed on notice after a 3 August 2019 meeting with Mr Urban, and the dismissal letter cited lack of due diligence and commitment and alleged stock-sorting problems. By the final hearing the only live issues were unfair dismissal and direct sexual orientation discrimination, because the notice pay and holiday pay claims had been withdrawn and dismissed by consent.

The tribunal rejected the claimant's case that her Polish managers and colleagues were opposed to homosexuality. It found no objective evidence of antipathy, accepted Ms Ptak's evidence that she was only surprised when told the claimant was moving in with her female partner, and found that Ms Ptak did not tell senior management about that disclosure. It also found that the claimant's work performance and attitude deteriorated from about April or May 2019, that complaints from customers and staff increased, and that stock errors caused losses.

The tribunal accepted that Mr Lachowicz told the claimant on 20 June 2019 that her performance needed to improve, and that in July 2019 he told her an incorrect pricing error was the last time. It found that Mr Urban travelled to the shop on 3 July 2019 with a pre-prepared dismissal letter and that the directors jointly decided to dismiss her. Although the respondent's process was a wholesale failure to comply with the ACAS Code and its own disciplinary procedure, the tribunal held under section 136 of the Equality Act 2010 that the burden shifted, but the respondent discharged it: the relevant directors did not know of the claimant's sexual orientation, and the dismissal was explained by genuine performance concerns. The direct sexual orientation discrimination claim was therefore dismissed.

On remedy, the respondent conceded unfair dismissal. The tribunal awarded a basic award of £1,134 based on 3 completed years' service and a gross weekly pay of £252, plus agreed lost earnings of £597.50 and £400 for loss of statutory rights. No injury to feelings or interest was awarded because the discrimination claim failed. The tribunal applied a 20% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 because the ACAS Code failures were unreasonable, producing a total award of £2,557.80. For recoupment purposes, the prescribed element was £717.00 attributable to 17 August 2019 to 20 September 2019, and the award exceeded that amount by £1,840.80.