Automated Summary
Key Facts
The claimant, a Polish cabin crew member at British Airways, alleged race discrimination and constructive discriminatory dismissal following a March 2018 meeting where his manager referenced 'Eastern European culture' during a performance review. The claimant resigned in April 2018, citing a failure by British Airways to investigate his grievance about the discriminatory comment. The Employment Tribunal (ET) dismissed the claimant's complaints of direct sex discrimination, sexual harassment, and direct race discrimination, but failed to adjudicate on the constructive discriminatory dismissal claim. The Employment Appeal Tribunal (EAT) found this omission to be an error of law and remitted the case to the same ET to determine the constructive dismissal complaint, focusing on whether the employer's failure to investigate the grievance was influenced by the claimant's national origin.
Issues
- The Employment Tribunal (ET) did not adjudicate on the claimant's assertion that he was subjected to a constructive discriminatory dismissal under section 39(7)(b) of the Equality Act 2010, specifically based on his Polish national origin and alleged xenophobic comments made during a 5 March 2018 meeting. The appeal on this ground was allowed, and the matter was remitted to the ET for further determination on this narrow issue.
- The ET's decision to impose a 100% Polkey-type reduction in compensation for the claimant's lost earnings (assuming success on his claims) was found to be inadequately reasoned and not compliant with the Meek principle. This issue was also remitted for reconsideration, as the ET did not address key evidence or policies regarding probationary period reviews and the claimant's alternative employment prospects.
Holdings
- The EAT allowed the appeal on the second ground, finding the ET's conclusion about the claimant's lost earnings was inadequately reasoned and not Meek-compliant. The ET's Polkey-type reduction to zero compensation for post-probation losses lacked sufficient reasoning, particularly as it did not consider whether the respondent's conduct in failing to investigate the grievance (if found discriminatory) might have independently led to the claimant's dismissal. This issue is also remitted to the ET for reconsideration.
- The EAT allowed the appeal on the first ground, holding that the Employment Tribunal (ET) failed to properly adjudicate on the claimant's complaint of constructive discriminatory dismissal under section 39(7)(b) Equality Act 2010. The ET did not determine whether the respondent's failure to investigate the claimant's grievance about the 5 March 2018 comment was influenced by his national origin, nor whether this failure contributed to his resignation. The matter is remitted to the same ET to decide this narrow issue.
Remedies
- The appeal was allowed on the first ground, and the matter was remitted to the same Employment Tribunal (ET) to determine the narrow issue of whether the claimant's complaint of constructive discriminatory dismissal (based on race) was properly adjudicated, specifically regarding the respondent's failure to investigate the claimant's grievance about the 5 March 2018 meeting and whether this failure was influenced by his national origin.
- The appeal was also allowed on the second ground, requiring the ET to reconsider its conclusion about the claimant's lost earnings compensation, as the original judgment's reasoning for a 100% Polkey-type reduction was deemed inadequate and not Meek-compliant. This issue is remitted to the ET for fresh consideration, contingent on the outcome of the constructive dismissal remittal.
Legal Principles
The Employment Appeal Tribunal (EAT) emphasized that an Employment Tribunal (ET) must adjudicate on all complaints brought before it, and failing to do so constitutes an error of law. The EAT also addressed the 'Meek-compliant' requirement for tribunals to provide adequate reasoning for their conclusions, particularly when dismissing claims. Additionally, the Polkey principle was referenced, which allows for compensation reduction if an employee would have been dismissed regardless of the claim's success, though such reductions to zero are rare. The ET's failure to address the claimant's complaint about the respondent's failure to investigate a discriminatory comment and its inadequate reasoning for the Polkey-type reduction were key legal issues.
Precedent Name
- Abbey National plc & another v. Chagger
- Sinclair Roche & Temperley v. Heard
- DPP Law Ltd v Greenberg
Cited Statute
- Employment Rights Act 1996
- Equality Act 2010
Judge Name
Barry Clarke
Passage Text
- The ET's judgment recorded the circumstances in which the claimant resigned, following receipt of the email from Ms Pilgrim, but it contained no finding about the steps she had taken to investigate his complaint about what was said at the meeting, whether any such failure to investigate (if it could be so described) was influenced by the claimant's national origin, and whether this did, or did not, play any part in his decision to resign.
- The appeal is therefore allowed on both grounds and remitted to the ET to decide on the narrow points identified above.
- The EAT allowed an appeal on the basis that the ET did not adjudicate upon one of the complaints before it, which was whether the claimant was entitled to treat himself as having been subjected to a constructive (race) discriminatory dismissal. Case remitted to the same ET to determine that complaint.