Miss A Malik v Mr P Paliga and others: 2407391/2023 and 2408700/2023

EMPLOYMENT TRIBUNALS

Case No 2407391/2023, 2408700/2023

Between

Miss A MalikClaimant

R1 : Mr Przemyslaw Paliga R2: Mr Zbigniew Szary R3: Mr Paliga and Mr Szary trading as Food 4 ThoughtRespondent

Before

Employment Judge Aspinall

In person for claimant

Date 11 October 2024

JUDGMENT

[1]The claimant’s complaint of unfair dismissal succeeds.

[2]The claimant’s complaint of race discrimination succeeds.

[3]The claimant’s complaint of religion or belief discrimination succeeds.

[4]The claimant’s claim for notice pay succeeds.

[5]The claimant’s claim for outstanding holiday pay succeeds.

[6]The claimant’s the respondent failed to provide written reasons for dismissal succeeds.

[7]The claimant’s claim for unauthorised deduction from wages is dismissed on withdrawal. Case No: 2407391/23 2408700/23 JUDGMENT having been sent to the parties on 17 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By a claim form in case number 2407391/23 dated 12 July 2023 the claimant brought a claim for unfair dismissal, race discrimination, notice pay, holiday pay and arrears of pay. She identified the respondent as Food4Thought and named Mr Przemyslaw Paliga and Mr Zbigniew Szary as owners of the business trading together as Food4Thought. She had obtained an ACAS certificate from 3 May 2023 to 14 June 2023 against the prospective respondent Food4Thought.

[2]By a second claim form case number 2408700/23 dated 12 August 2023 the claimant brought complaints of unfair dismissal, race discrimination, holiday pay and arrears of pay. She identified the first respondent as Przemyslaw Paliga and the second respondent as Mr Zbgniew Szary, she had achieved an ACAS certificate against Mr Paliga from 11 July 2023 to 13 July 2023 and against Mr Zbigniew Mr Szary from 11 July 2023 to 13 July 2023.

[3]The claim forms were served on the respondents and the dates were given for filing ET3 response forms of 31st of August 2023 and 2 October 2023 respectively. The respondents failed to file any response in time.

[4]The case came to a case management hearing before EJ Humble on 14 November 2023 at which the claims were consolidated, a decision was made that the respondent having failed to file a response could not be heard on the issue of liability save to the extent permitted by the judge at final hearing. Subsequently, an application to extend was made in writing, reasons for the delay were provided separately on a later date and two ET3 forms were sent in March 2024. At a hearing on 25 April 2024 Employment Judge Barker accepted the Response in the consolidated complaints and allowed the respondents to participate in the defence.

[5]On day one of this final hearing, in error, this Tribunal relied on EJ Humble’s decision and made a case management decision not to allow the respondent to defend on liability. The error was brought to its attention before any evidence was heard, by the second respondent Mr Szary who sent an email copy of the first ET3. The Tribunal apologised for this error and went on to hear from the parties as to it varying its decision. The Tribunal revoked its decision not to allow the respondents to participate on the grounds of them not having filed a defence.

[6]During a discussion about readiness for hearing which included discssion about bundles, documents, witnesses and witness statements it became apparent that the respondent had not complied with case management orders. It had not provided witness statements. The claimant said that the respondents should not be allowed to give evidence now that they had not sent in their witness statements at all. Mr Szary said that he had documents he wished to produce and could produce by sending emails to the Tribunal now. The Tribunal discussed readiness for the hearing in the trial window with the parties. Neither side wished to postpone. The Tribunal had regard to the case management orders, rule 42 and rule 2 and made a case management decision not to allow either respondent to give evidence nor to cross-examine the claimant but to allow each to make closing submissions. In balancing the prejudice to the parties the Tribunal considered that the claimant would be ambushed and that the balance of prejudice lay with her, whilst the prejudice to the respondent was self inflicted (in non compliance with case management orders) and could be mitigated by the Tribunal having regard to all of its correspondences with the Tribunal and the content of its ET3’s. Any arguments the respondents had advanced in writing prior to the final hearing (any of which the claimant had been made aware in advance) would be put to her by the Tribunal and she could have an opportunity to comment, and the Tribunal would support the respondents to cover those arguments in each of their closing submissions.

[7]Mz Szary was particularly aggrieved at this decision, insisting that he should not even be a party to the proceedings, and for that reason full reasons are provided (for the decision to limit the respondents’ participation) in a separate Case Management Summary document. Difficulties for the interpreter

[8]The matter came to final hearing at Liverpool in person with a Polish interpreter present. On day one and two the interpreter was Mr Giers. He is an experienced court interpreter who was able to maintain pace, speak fluidly and contemporaneously and translate documents from the bundle rapidly. Mr Giers acted courteously and calmly at all times despite(i) Mr Szary not adapting his pace when asked to do so to allow gaps for interpretation

(ii) Mr Szary overtalking others making interpretation very difficult and

(iii) Mr Szary approaching Mr Giers outside of the court room when he had been directed by the judge not to communicate with the interpreter other than in the court room. Mr Szary approached the interpreter on the landing and the Tribunal was told by the clerk (who witnessed the incident) that Mr Szary said to Mr Giers that he was the worst interpreter he had ever come across in his life and that his son could do better. On day two Mr Szary brought along his son who sat at the back of the court room, with frequent visual communication and gesturing between him and Mr Szary in response to the interpretation. Mr Paliga said that he understood the interpreter perfectly and was happy with the interpretation. Mr Giers is commended for his calm professionalism and service to the court. At the end of the second day Mr Giers politely declined to return on this case.

[9]On day three a second interpreter Mr Skowronski assisted the Tribunal. He was also calm and courteous in the face of Mr Szary continuing to over talk him, talk without using short breaks, talk at the interpreter in Polish when the interpreter was listening to direction from the judge, and raising his voice to talk over the judge so as to get the interpreter’s attention. Mr Paliga again had no issues with the interpreter. Mr Skowronski as second interpreter is to be commended for his calm professionalism and service to the court. He declined to attend on day 4, so an alternate interpreter was booked.

[10]The Tribunal noted from Mr Szary’s heated and rapid reactions to direction given by the judge during days one, two and three that he could understand what the judge had said, and was responding to it in Polish to the interpreter before the interpreter translated it into Polish for him. This gave the Tribunal cause for concern that Mr Szary was using the interpreter and his own professed lack of understanding to seek to disrupt and possibly derail proceedings. This point was put to Mr Szary who was apologetic and said he had not wanted to disrupt but said that he should not be a party to the proceedings.

[11]Mr Szary left after lunch on day 3 and asked the clerk to convey his thanks to the Tribunal for its support and assistance.

The List of Issues

[12]The List had been prepared in November 2023 and sent to the parties for approval. The draft did not include the complaint made by the claimant for arrears of pay which was clearly on both claim forms. Following discussion, the claimant confirmed that after previous hearing in this case the respondent had made a payment to her of £103 and that she no longer pursued a complaint in respect of any unauthorised deduction from wages or arrears of pay. Accordingly, that complaint was dismissed on withdrawal.

[13]The Tribunal will determine whether the claimant was dismissed and, if so:(1) Whether she has the requisite continuous service to bring an unfair dismissal claim under section 98 ERA 1996, in that respect whether the TUPE Regulations applied to transfer the claimant’s employment to the respondents upon their purchase of ‘Food 4 Thought’ on or about 1 March 2023.

(2) It is for the respondents to show a potentially fair reason for dismissal under section 98 Employment Rights Act 1996. At this stage no fair reason is relied upon. If a potentially fair reason for dismissal is shown, the Tribunal shall apply the test of fairness under section 98(4), and determine whether the respondent act reasonably.

(3) Whether the reason, or principal reason for her dismissal was that she had, in good faith, alleged that the respondent infringed a relevant statutory right. In this case, the claimant relies upon the right not to suffer unauthorised deductions under section 13 ERA 1996.

(4) If the claimant was dismissed, what was the claimant’s notice period? Was the claimant paid for that notice period?

(5) Did the claimant request and was she given written reasons for her dismissal?

(6) The Tribunal will determine whether the respondent failed to provide written reasons for the claimant’s dismissal within 14 days of a request, or whether any reasons which were issued were inadequate or untrue pursuant to section 93 ERA 1996.

(7) The claimant describes herself as British, a person of colour and of Pakistani ethnic origin. Her religious belief is Islam. The Tribunal will determine:

(8) Was the claimant dismissed and, if so, what were the facts in relation to the alleged dismissal?

(9) If the claimant was dismissed, has she proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different race and/or religion was or would have been treated?

(10) The claimant relies upon Shannon, a work colleague who is also British but of white British ethnic origin and who does not share the claimant’s Islamic faith. In the alternative, she relied upon a hypothetical comparator of white British race and ethnic origin who does not share the Islamic faith;

(11) If dismissed, has the claimant proven facts from which the Tribunal could conclude that the dismissal was because of her race and/or religious belief?

(12) If so, has the respondent shown that there was no less favourable treatment because of race and/or religion. Note: in relation to the religious belief discrimination claim, the claimant’s case is that she took a day off work for Eid on 21 April 2023, and she believes this contributed to the reason for her dismissal on 23 April 2023. Documents

[14]The claimant had prepared a bundle of 41 pages which was provided to us. It was not paginated or indexed. With the assistance of our clerk it was paginated and copied for everyone. At the Tribunal’s request documents from the Tribunal file relevant to the extent to which the respondent was permitted to engage in a remedy hearing were also copied, paginated and added to the bundle which became a 62 page Bundle A.

[15]The claimant produced a short witness statement of two pages. She was given leave to add supplemental content to that witness statement which she did orally on oath. The supplemental content was limited to facts relevant to matters in the list of issues.

[16]There were no witness statements from the respondent, but the Tribunal collated a 32 page bundle, Bundle B, of the following documents from the Tribunal file which contained the representations made by the respondents: letter 6 November 2023, letter 20 November 2023, letter 21 November 2023, letter 8 March 2024, ET3 13 March 2024, letter 27 March 2024, ET3 28 March 2024, letter 15 April 2024, letter 25 April 2024, letter 28 May 2024, letter 14 June 2024, letter 22 June 2024, letter 29 June 2024, letter 21 July 2024, letter 30 September 2024, letter 6 October 2024, letter 7 October 2024, letter 8 October 2024 together with each of their attachments.

[17]In supporting the claimant as a litigant in person and the respondent as litigants in person who were debarred from being heard on liability because they had produced no evidence in chief, the Tribunal went through representations in those documents with the claimant while she was on oath so as to ensure that the Tribunal took them into account and to give the claimant the opportunity to comment on them.

[18]It also did this to support the respondent to show that its arguments and submissions were in the mind of the Tribunal. Adjustments and timetable No adjustments were required.

[20]Day one was taken up in considering the extent to which the respondents may participate in the final hearing and in collating documents. The morning of day two was taken up with the Tribunal reading the whole Tribunal file, revisiting its decision on participation and providing a second 32 page bundle B of respondent’s documents from the Tribunal file for everyone.

[21]After lunch on day two the claimant gave her evidence. She was retained on oath overnight but given an exemption from the oath to allow her to check her payslips for the previous year so as to be able to tell us how much holiday she says she was entitled to each year.

[22]The claimant’s evidence continued on the morning of the third day. After a short adjournment the Tribunal took the claimant through relevant content in the Bundle B and gave her the opportunity to comment on the respondents arguments.

[23]By late morning of day three the Tribunal moved to closing submissions. The Tribunal had timetabled them so that between 12.00pm and 1.00pm, first Mr Paliga, then Mr Szary and then the claimant would each make submissions of a maximum of 20 minutes.

[24]Mr Szary arrived late on day three, without apology or explanation, at 10:35 and the Tribunal waited for him. This meant that the Tribunal were running behind and did not get to closing submissions until 12:25pm. There was not then time for all parties to make their submissions before lunch and Mr Szary had made it clear from day one that he could not attend after lunch on day three or on day four (despite having been given notice of hearing in March 2024) because he had to go to work. With the consent of the other parties the running order was changed so that Mr Szary could make his closing submissions and leave by 1pm, which he did.

Evidence

[25]The Tribunal heard oral evidence from Miss Malik. The Tribunal found her to be an open and reliable witness whose evidence was corroborated by the WhatsApp documentary records.

[26]The Tribunal did not hear evidence from the respondents but took into account the arguments they had advanced in the documents it had collated on their behalf and their submissions.

The Facts

[27]The claimant started working as a catering assistant at a business called Food4Thought run by Ms Debbie Dicken on 20 November 2013. She worked happily for over nine years. The claimant understood that the business ran from premises owned by Debbie’s father. In late February 2023 the claimant was told by Debbie in a group chat message that Debbie had not been making enough money since Covid and that she was selling the business and had found new owners.

[28]Debbie reassured the claimant that she would remain employed and said that the new employers had confirmed that they would be keeping the employees on and keeping the business as it was and planned building the business up. In late February or early March Debbie introduced the claimant to the new owners Mr Paliga and Mr Szary, using the names Prem and Jan. Debbie said they are business partners and your new employers. The claimant met them in the café. They spoke good English and were warm and friendly towards her. She continued to work as normal as did her colleagues using the same premises, fixtures and fittings. The only differences that might have been noticeable to a customer of the business were that within the first few weeks pizzas were added to the menu. Regulars might have noticed that Mr Paliga worked as chef in the kitchen twice a week and that Mr Szary was on site working from the top floor office coming into the café from time to time most days. Generally, Mr Paliga was the chef and Mr Szary did the business side of things. Debbie was kept on and she still did the rotas. The claimant continued to work approximately 20 hours a week at an agreed rate of pay of £11 per hour. The rotas were shared with staff on a Friday, on paper in the café or if someone wasn’t in Debbie would send them individually a screen shot of the rota. The claimant’s usual shifts were Monday to Friday 8 am till 12 noon.

[29]Debbie told the claimant and her colleagues that from 1 March 2023 Mr Szary and Mr Paliga were the new owners. They did not change the name of the business which still traded in the same way from the same premises with the same staff as Food 4 Thought. During the first week, week ending 6 March the claimant worked as normal. When she received her pay into her bank account at the end of that week she noticed two things. Firstly, it came from Mr Szary’s bank account and secondly she was underpaid. She received £ 101 not the £220 she should have had, leaving a shortfall of £119. Again during the week ending 11 March she worked her normal shifts and again she was paid from Mr Szary’s bank account. This time she was paid £178 not the £220 she should have had, leaving a shortfall of £42. During the week ending 20 March the claimant was again paid from Mr Szary’s bank account and was short paid by £42.

[30]On each occasion of being underpaid the claimant raised this and was told by either Debbie or Mr Paliga to speak to Mr Szary about it. The claimant went to see Mr Szary who was in the office on the third floor and told him that she had been underpaid. He said, speaking fluently in English, that he did not have a tax code for her and so was working out the tax himself using an online calculator until his accountant could take over. The claimant said she did not earn enough to pay tax and should not have any deductions made. Mr Szary said the accountant would look into that and that she would get her tax back.

[31]During the week ending 27 March the claimant was again paid from Mr Szary’s bank account and was short paid by £31. Her total shortfall for March was £119 plus £42 plus £42 plus £31 being £234. This was money she could not afford to lose. She was also concerned because her payslips for March did not match her actual receipts into her bank account. The payslip said she had had £752 when she added up her receipts of 101+ 178+178+189 they came to £646. She had a paper shortfall of £106, but in reality was paid £234 less than the amount she should have had for the hours she worked.

[32]The claimant was aware that her colleague Shannon was also being short paid and had also been told that it was because Mr Szary was doing the tax and that she would get the money back.

[33]During the first week of April Debbie handed the claimant a contract document. Debbie told her that Jan and Prem wanted her to sign it. The claimant took the contract home and looked at it. It said that she was a casual worker and that it was a zero hours contract. The claimant’s employment would begin on 1 March 2023. This was not the arrangement that she had with Debbie and that had continued throughout March with Mr Szary and Mr Paliga so she decided not to sign it.

[34]In April the claimant worked her regular shifts of 20 hours per week and was paid £220 she was due. At some point during April the wording on her bank statement changed so that it appeared that the money was coming from an account called Food4Thought where previously it had been described as Zbigniew Szary, Mr Szary’s full name. The claimant could not know if it was coming from the same or a different account or if the name of the account had been changed.

[35]In early April the claimant who describes herself as Pakistani Muslim asked Debbie if she could take annual leave on 21 April 2023 because that would be the religious festival of Eid. Debbie agreed. The claimant was entitled to 31 days holiday per year including bank holidays. Holidays accrued at the rate of 2½ days per month. One day of holiday meant four hours for the claimant.

[36]Although Debbie still did the rota, by mid April she was showing Mr Szary and Mr Paliga how to do it. Her request for leave on 21 April was the first request made since Mr Paliga and Mr Szary had been her employer so the claimant believed that Debbie would have explained to Mr Szary and Mr Paliga the reason why she was not on the rota that day. The claimant talked generally at work about her faith and about the forthcoming festival of Eid. The claimant was the only person of colour in the workplace. The claimant believed that it was generally known at work that week that she was going to be off that Friday because she is Muslim and it was Eid. She worked Thursday 20 April 2023 as usual.

[37]On 21 April 2023, the Friday that the claimant had leave for Eid, she was thinking about the money that was still due to her. The claimant sent a message to the work WhatsApp group which was called Kitchen Food4thought. She, Debbie, Mr Paliga, Mr Szary, Shannon and other staff were all on that group. She said: “I don’t know who I’m supposed to speak to about our last months wage slips as still not received payments that is owed….”

[38]Shortly after sending that message a screenshot of the working rota for the following week was sent to the group chat by Mr Szary. This was unprecedented. The rota had always come from Debbie and had never been shared in the group chat before. It showed no shifts at all for the claimant or for Shannon in the coming week. At 7:25pm the claimant sent a message to the work group asking so why don’t I have any shifts Shannon also sent a message at 7:26pm asking why don’t I have any shifts? Mr Paliga replied, his WhatsApp ID was Slaski Kaszub which is a geographical area of Poland, saying that’s what Jan and I decided about the hours for the next week. The claimant responded saying so what is the reason not give us any shifts? Also what about the money you owe us why is no one replying to that?

[39]The claimant sent a message to Mr Szary on his WhatsApp on 21 April 2023 asking, “why have you not given me and Shannon any shifts for next week?”.

[40]On Sunday, 23 April 2023 the claimant received a private message from Mr Paliga sent through the work group saying: “Dear Ayshea, in connection with your resignation from further cooperation with Food 4 Thought on behalf of the entire management board of the company and all employees I would like to thank you for your cooperation so far. At the same time, I would like to inform you that you will receive documents confirming the official termination of cooperation with the company in the near future by post to the correspondence address provided by you in the recruitment process for the company. Sincerely, Prem.”

[41]Immediately following receipt of that message she saw a notification on the group chat saying that Mr Paliga had removed her from the group. On Sunday, 23 April 2023 having had no reply from Mr Szary the claimant again messaged him saying, “I have not asked to resign what is the reason for my termination?”.

[42]As at 1 March 2023 there was no outstanding annual leave due to the claimant. After Mr Szary and Mr Paliga took over the claimant continued to accrue annual leave at the rate of 2.5 days per month. In March she accrued 2.5 days and in the three weeks of April during which she was employed she accrued 1.8 days.

[43]On 24 April 2023 the claimant went to the Citizens Advice Bureau for advice. She knew she had been dismissed but was desperate to regain her employment. The claimant repeated her message to Mr Szary asking are you in work today and saying “please can you tell me if I still have my job as I haven’t asked to resign and I have no idea why you would think that…..I still not had any wages could you please get back to me?”.

[44]Mr Paliga replied telling her to inform Mr Szary about this. The claimant said that she tried to contact Mr Szary but his phone was off. She said that no one has said anything about her resigning and that she would come into work to speak to them face-to-face. She asked “why have you sent a message saying your terminating my contract” and asked what day they would both be in work so that she could come in to speak to them. Mr Paliga replied to say that he was out of town. He said “Mr Szary is in the shop and he takes care of finances in my absence”. In relation to the outstanding pay, he said “should be transferred soon”.

[45]On 25 April 2023 the claimant again messaged Mr Paliga, she said “I’d like to state that I have not resigned from my job. Has my job been terminated? I’d like someone to reply to me so I know what’s going on when will that be getting paid as it is last month’s money and it says so on my wage slip? You have not paid the full amount from last months wage slip. Can you get back to me on this please”.

[46]On 28 April 2023 the claimant again messaged Mr Paliga. She forwarded her previous message to him and said “can you let me know this week please if I have my job when my old tax will get paid to me? Because I have not resigned”.

[47]On 28 April 2023 Mr Szary messaged the claimant to say: “Dear Madam, I kindly inform you that your resignation from your job at food for thought...has been accepted. If you believe you have not resigned from your job in the above company and your correspondence or lack of it has been misunderstood by the management of the company and please note that by the decision of the owner you have been dismissed from your job… and removed from the company’s internal WhatsApp group of colleagues. The consequence of this is that from 23 April 2023 at 1707 you are not an employee of food for thought and you have no business relationship with food for thought. I inform you that if you believe that your dismissal from food for thought is wrong you can take legal action against food for thought to apply for reinstatement. Any financial settlements with you by food for thought and sending the documents confirming your dismissal from work will be sent to your mailing address held by the company. Kind regards, Mr Szary.”

[48]The claimant wrote back asking for the reason for termination of employment and Mr Szary said it would be provided in forthcoming documents. The claimant said that she had worked there for over 10 years and was due a reason.

[49]She was afraid and upset. Since 21 April 2023 when she had seen the rota the claimant had been fearful about her employment. She felt humiliated that other staff could see that she was not given any shifts. On 23 April 2023 when she had been told that her employment was terminated she was frightened. She is a single mother of two and was trying to provide for a family. She was immediately afraid as to how she would pay her bills, how she would cope without a job. She experienced feelings of anxiety and felt overwhelmed by fear about how she could manage. She was upset to see that she was removed from the work WhatsApp group. She knew that she had been dismissed, she knew that she was not going back to work. Throughout that week her feelings of anxiety and fear increased. She was deeply upset at the way she was being treated as an employee with over nine years’ service.

[50]She was in touch with Shannon. She knew that she had been dismissed but Shannon had not. She knew that she was the only person in the business taking annual leave for Eid and the only person who’d been dismissed. Shannon had also complained through the Whatsapp group and in person about backpay but Shannon, a white British Christian, was not dismissed. The claimant was convinced that she was being treated differently because of her race and religion. This increased her distress, upset, anxiety, fear and humiliation.

[51]On 28 April 2023 in response to the message from Mr Szary the claimant felt she was being ignored and humiliated because of her race and religion and that a white British non muslim would not have been treated that way. She continued to ask for reasons for her dismissal. She could see that her messages were being read but not responded to, she found this offensive and felt that their refusal to meet with her was related to her race and religion.

[52]She continued to press for the reason for dismissal and was told the reason would be specified in the documents confirming dismissal. Twice Mr Szary told her that he had nothing to say on the matter. In a message on 28 April 2023 he said: “As I told you before I have nothing more to say on this matter. I just add that I never said you wouldn’t find out why you were fired. You will receive the dismissal documents in the reason for the dismissal as soon as possible.

[53]The claimant asked had they even been sent yet given that she been dismissed on 23 April. Mr Szary replied: “As I wrote that the documents will be sent but they have not been sent I think I made it clear.”

[54]The claimant challenged this and also pointed out that the business had paid other people their owed tax but not her and she asked why that was. He did not reply.

[55]On 29 April 2023 the claimant had a message from Shannon telling her that she had resigned. Shannon copied to her the resignation letter which cited the outstanding balances of tax owed to her.

[56]On 3 May 2023 the claimant contacted ACAS and gave the requisite information to begin early conciliation. She achieved her ACAS certificate against Food4Thought on 14 June 2023. She contacted ACAS again on 11 July 2023 and achieved certificates on 12 July 2023 against Mr Paliga and Mr Szary. She brought her first Tribunal claim on 12 July 2023, and lodged a second claim on 12 August 2023.

[57]During the course of these proceedings the respondent submitted documents to the Tribunal alleging for the first time that the claimant had stolen from them, had taken unauthorised absence and was unresponsive for a week to their calls, had been off sick and failed to provide a fit note, and when challenged about being unresponsive (which the Tribunal finds never happened) she had said that her phone was not working.

[58]During the course of these proceedings the respondents have failed to comply with case management orders. On 25 April 2024, the respondent’s noncompliance meant that what was to have been the final hearing could not go ahead. Employment Judge Barker converted that to a case management hearing, allowed the late response, refuse to remove Mr Szary as a party, listed a further preliminary hearing and recorded as follows: “It is clear that Miss Malik has spent a lot of time preparing for final hearing today and that the hearing has not gone ahead as she expected. She provided a witness statement and a well ordered file of documents. She has the right to apply for an order for her preparation time to be paid by the respondent. If she does so this will be considered by the judge at the next hearing on 23 May 2024.”

[59]On 23 May 2024 Employment Judge Buzzard conducted the case management hearing. He made case management orders for the preparation for the preliminary hearing which was to take place on 11 July 2024 to determine the issue of who was the claimant’s employer at the date of termination of employment.

[60]The respondent failed to comply with those orders, any applications for extensions of time to comply which were refused. There was still non-compliance.

[61]On 11 July 2024 Employment Judge Benson ascertained from Mr Paliga and Mr Szary that previous hearings they had not needed an interpreter. They confirmed that they had sufficient understanding of English for her to be able to proceed to make a decision and to case manage the case to final hearing even in the absence of the Polish interpreter who had been booked.

[62]EJ Benson was not content to determine the substantive issue of identity of employer in the absence of an interpreter and held this over to the final hearing. Neither of the respondents complied with any of the orders made by Judge Buzzard. Time limits were not met by the claimant either but she had provided documents and had produced a short statement. EJ Benson recorded that Mr Szary attended the hearing two hours late. She also noted that he had attended late at the previous hearing before Judge Buzzard she recorded: “His approach to the Tribunal and its orders provided me with no confidence that even if another preliminary hearing was listed that hearing would be ready to proceed.”

[63]Mr Szary opposed her decision and wanted a further hearing to be listed to determine the issue of identity of employer, and or to have him removed as a party, and for this to be determined prior to any final hearing.

[64]On 6 October 2024 Mr Szary wrote again to the Tribunal requesting that he be removed as the respondent. On 7 October 2024 he re-sent that email and attached a document showing Mr Paliga’s VAT and HMRC registrations.

[65]On 7 October 2024 Mr Szary overtalked other people, over talked the interpreter, refused to speak in short chunks when requested to do so, so as to make interpretation easier. Each of these things was brought to Mr Szary’s attention by the judge and he was asked to cooperate. At one point, when he had refused to cooperate, the judge said that any further interruption by over talking would be considered a security incident and she would call for assistance and possibly his removal. During the course of the day Mr Szary complained to the clerk about the quality of the interpreter as set out above.

[66]On the morning of 9 October 2024 despite having been informed about the decision of the Tribunal that he may not produce further documentation on day one, Mr Szary, when the clerk went out to bring in the Tribunal panel, approached the bench and left a document on the judge’s desk. The clerk removed the document at the judge’s request. It was not looked at and the proper process for having documents adduced late; sharing them with the other party, seeking consent, being able to establish their relevance and necessity, and with a satisfactory explanation for delay obtaining the consent of the Tribunal, was explained to Mr Szary.

[67]On 9 October 2024 Mr Szary wrote a letter of complaint to the Tribunal. He said: “Further to my complaints of October 7 about the interpreter and request to change the interpreter I inform of the following. On October 7 having doubts as to the quality of the interpretations, I made a complaint about the interpreter requesting replacement. However, after reconsidering not wanting to harm the person on October 8 I agreed for the interpreter to do the interpreting when asked about this by the Tribunal. Considering my weak knowledge of English I called as a witness on October 8 a person who knows English very well and is objectively able to assess the interpreter’s professionalism. On October 8 the witness during the Tribunal hearing confirmed my concerns and confirmed to me that the interpreter is working very chaotically, doesn’t interpret details which are very important in the case. Because of this, I again request a change of interpreter and I do not consent for this interpreter to carry on working on October 9.”

[68]Whilst the Tribunal had not seen the written complaint it was aware of Mr Szary’s having expressed verbal complaint about the interpreter and also aware that the interpreter had raised concerns with the clerk about Mr Szary continually seeking to approaching during break time to discuss the case, despite having been told by the judge not to do so. The judge was aware, though did not share this with the parties until a new interpreter was installed, that the interpreter had declined to return to this case, necessitating the booking of a different interpreter for day three, who himself subsequently refused to return on day four, and a different interpreter for day four.

[69]The judge checked with Mr Paliga that he was happy with the interpreter on day one and day two and he was. The judge and members discussed their impression of the interpreter. They unanimously agreed that each of the interpreters on days one, two and three were to be commended for calm professionalism and service to the court.

[70]The judge expressed the view during the hearing that a pattern was emerging of Mr Szary attempting to derail proceedings and that she would not allow that to happen. She directed that Mr Szary could put in writing to the Tribunal any concerns he had about the interpreter. Mr Szary asked before a decision was given, how he could appeal the decision and the judge gave guidance that any parties not happy with the decision would be given information about reconsideration and appeal with the judgment. Relevant Law Dismissal

Relevant Law

[71]Section 95 Employment Rights Act 1996 sets out the circumstances in which an employee is dismissed. An employee is dismissed by his employer if the contract under which he is employed is terminated by the employer either with or without notice.

[72]Section 97 Employment Rights Act 1996 says that the “effective date of termination”:(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect,

[73]When employment is terminated in writing the termination takes effect when the employee actually reads what is written Gisda Cyf

2010 UKSC 41

. Rights to notice pay section 86 72. Section 86 Employment Rights Act 1996 provides that the notice required to be given by the employer to terminate the contract of employment of the person has been continuously employed for one month all is not less than one week’s notice for each year of continuous employment if is period of continuous employment as two years or more but less than 12 years. 86 Rights of employer and employee to minimum notice(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more — (a) is not less than one week's notice if his period of continuous employment is less than two years, (b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week. Unfair dismissal 73. Section 94 Employment Rights Act 1996 (ERA) provides that an employee has the right not to be unfairly dismissed by his employer.

[74]Section 98 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal; and

(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; b) Relates to the conduct of the employee; c) Is that the employee was redundant; or d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

[75]In subsection (2)(a) -(a) ‘Capability’, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and

(b) ‘Qualifications’, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.” Automatically unfair dismissal

[76]Section 104 Employment Rights Act 1996:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee — (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1) — (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was. Written reasons for dismissal

[77]S92 and s93 state:(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal — (a) if the employee is given by the employer notice of termination of his contract of employment, (b) if the employee's contract of employment is terminated by the employer without notice, or [(c) if the employee is employed under a limited-term contract and the contract terminates by virtue of the limiting event without being renewed under the same contract].

(2) Subject to [subsections (4) and (4A)], an employee is entitled to a written statement under this section only if he makes a request for one; and a statement shall be provided within fourteen days of such a request.

(3) Subject to [subsections (4) and (4A)], an employee is not entitled to a written statement under this section unless on the effective date of termination he has been, or will have been, continuously employed for a period of not less than [two years] ending with that date.

(4) An employee is entitled to a written statement under this section without having to request it and irrespective of whether she has been continuously employed for any period if she is dismissed — (a) at any time while she is pregnant, or (b) after childbirth in circumstances in which her [ordinary or additional maternity leave period] ends by reason of the dismissal. [(4A) An employee who is dismissed while absent from work during an ordinary or additional adoption leave period is entitled to a written statement under this section without having to request it and irrespective of whether he has been continuously employed for any period if he is dismissed in circumstances in which that period ends by reason of the dismissal.]

(5) A written statement under this section is admissible in evidence in any proceedings.

(6) Subject to subsection (7), in this section “the effective date of termination”— (a) in relation to an employee whose contract of employment is terminated by notice, means the date on which the notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and [(c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect].

(7) Where — (a) the contract of employment is terminated by the employer, and (b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (6)), the later date is the effective date of termination.

(8) In subsection (7)(b) “the material date” means — (a) the date when notice of termination was given by the employer, or (b) where no notice was given, the date when the contract of employment was terminated by the employer. 93 Complaints to [Employment Tribunal] (1) A complaint may be presented to an [employment Tribunal] by an employee on the ground that — (a) the employer unreasonably failed to provide a written statement under section 92, or (b) the particulars of reasons given in purported compliance with that section are inadequate or untrue. (2) Where an [employment Tribunal] finds a complaint under this section well- founded, the Tribunal — (a) may make a declaration as to what it finds the employer's reasons were for dismissing the employee, and (b) shall make an award that the employer pay to the employee a sum equal to the amount of two weeks' pay. (3) An [Employment Tribunal] shall not consider a complaint under this section relating to the reasons for a dismissal unless it is presented to the Tribunal at such a time that the Tribunal would, in accordance with section 111, consider a complaint of unfair dismissal in respect of that dismissal presented at the same time. Race discrimination

[78]Section 9 Equality Act provides:(1) Race includes — (a) colour; (b) nationality; (c) ethnic or national origins.

(2) In relation to the protected characteristic of race — (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.

(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.

(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group. Religion or belief discrimination

[79]Section 10 provides:(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief. Direct discrimination

[80]Section 13 Equality Act provides:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.

[81]In relation to comparators there must be no material difference. Section 23 Equality Act 2010 provides: 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, [19 or 19A] there must be no material difference between the circumstances relating to each case. Comparators

[82]In Virgin Active Limited v Hughes

[2023] EAT 130

the EAT revisited the difference between actual comparators and hypothetical comparators and the burden of proof. Where there is an actual comparator in the same material circumstances that might be sufficient for the burden of proof to shift.

[83]In Leicester City Council v Parmar

[2024] EAT 88

HHJ Tayler found that a tribunal did not err in law in holding that the burden of proof had shifted to the respondent to disprove discrimination where actual comparators who did not have the same race of the claimant were not subjected to disciplinary investigation and the claimant was. The burden of proof

[84]Section 136 of EqA applies to any proceedings relating to a contravention of EqA. By section 136(2) and (3), if there are facts from which the Tribunal could decide, in the absence of any other explanation, that a person contravened the provision concerned, the Tribunal must hold that the contravention occurred, unless A shows that A did not contravene the provision.

[85]In Igen v. Wong

[2005] EWCA Civ 142

, the Court of Appeal issued guidance to Tribunals as to the approach to be followed to the burden of proof provisions in legislation preceding EqA. They warned that the guidance was no substitute for the statutory language:(1) …it is for the claimant who complains of … discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination ... These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of … discrimination.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5) It is important to note the word "could" in s. 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw…from an evasive or equivocal reply to a [statutory questionnaire].

(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts…This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic

(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question.

[86]The initial burden of proof is on the claimant: Ayodele v. Citylink Ltd

[2017] EWCA 1913

[87]It is good practice to follow the two-stage approach to the burden of proof, in accordance with the guidance in Igen v. Wong, but a Tribunal will not fall into error if, in an appropriate case, it proceeds directly to the second stage.

[88]Lord Hope of Craighead in the Supreme Court in Hewage v. Grampian Health Board

[2012] UKSC 37

reminded Tribunals not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[89]In the Employment Appeal Tribunal in Mrs A Field v Steve Pye and others

[2022] EAT 68

EAT 2022 HHJ Tayler cited Lord Hope and went on to say41. It is important that employment Tribunals do not only focus on the proposition that the burden of proof provisions have nothing to offer if the employment Tribunal is in a position to make positive Judgment approved by the court for handing down findings on the evidence one way or the other. If there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. To do so ignores the prior sentence in Hewage that the burden of proof requires careful consideration if there is room for doubt.

42. Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment Tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment Tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment Tribunal would, in effect, be moving directly to paragraphs 10-13 of the Igen guidelines.

[90]In Blackdown Hill Management Limited & Another v Tuchkova

[2023] EAT 156

the EAT confirmed that a Tribunal must ask itself whether the protected characterstic had any material influence, whether conscious or subconscious, on the mental processes of the decision maker. In that case it was not enough simply to have relied on the context (that of maternity leave) in which the treatment arose to conclude that discrimination had taken place. Submissions

[91]Collated by the Judge from the respondent’s documents on behalf of both respondents:(a) The claimant had less than two years’ service, having only started working for them as an entirely new business from 1 March 2023.

(b) The claimant was a casual worker engaged on a zero hours contract from 1 March 2023.

(d) The claimant resigned / the respondent reasonably assumed that she had resigned.

(e) The claimant’s hours were reduced on the rota because she was reasonably suspected of theft of goods from the café, although it was accepted that this theft had not been put to her prior to the termination of her employment.

(f) That the reasons for the claimant’s dismissal, if any, were that (i) she had been unresponsive for a week from 23 April 2024, that when challenged about being unresponsive she said she had a problem with her phone, (ii) that she had been ill and failed to provide a sick note for a week from 23 April 2024 and (iii) that she was reasonably suspected of theft.

(g) That the reason for any dismissal had nothing whatsoever to do with the claimant’s race or religion.

(h) That Shannon was not an appropriate comparator to the claimant.

(i) That the claimant was not due any outstanding holiday pay.

(j) The claimant was not due any arrears of pay.

(k) The claimant having less than two years’ service was not entitled to written reasons for dismissal. First respondent submissions

[92]It was Mr Szary’s submission that he was a landlord who rented space to Mr Paliga, in which Mr Paliga ran a café; that he Mr Szary did not run a café nor employ anyone and he acted only as Mr Paliga’s temporary, voluntary business manager.

[93]In closing submissions Mr Szary wanted to talk only about why the decisions made by previous judges that he could not be removed as a party and that the identity of employer will be decided at this final hearing, were wrong and why for him {because, in his submission, neither party had complied with case management orders made in May 2024 to be ready for a preliminary hearing on 11 July 2024, after the date of that non-compliance} “this case should not exist and therefore does not exist”. He steadfastly resisted on three occasions by over talking the judge, her attempts to support him to make substantive submissions, relying on the documents which she had collated for the respondents. Particularly as to his position in relation to the “reason why” issue. Why had the claimant been dismissed. Mr Szary said that he had a plan, that he would use his time as he wished to, that the judge should stop interrupting him and making suggestions about what he would say and that he would not talk about the substance of the case because the case against him should not exist. Second respondent submissions

[94]It was Mr Paliga’s submission that he and Mr Szary were in business together as partners and that they bought the café from Debbie Dicken and took over together, continuing to run the café as before, on 1 March 2023. He said he invested money in the business and Mr Szary looked after the financial side of things including paying the rent, which he subsequently discovered Mr Szary had failed to do. It was his submission that all of the decision making was joint decisionmaking irrespective of which of them communicated the decision to the claimant. He said that the claimant was dismissed and it was not because of race or religion. He did not give a reason but said that he had seen Mr Szary’s correspondences with the Tribunal that put forward alternate reasons. He said that he and Mr Szary had suspected Shannon of stealing and that when they raised this with her she resigned. He gave no explanation in submission as to the reason for the claimant’s dismissal. He said he agreed with the content of the documents sent to the Tribunal as set out above. Claimant submissions

[95]The claimant submitted that she was unfairly dismissed in a message from Mr Paliga but which she says was sent by both respondents as joint decisionmakers on 23 April 2024. She says that the reason for dismissal was both because she had complained about discrepancies between her pay sent and the amounts actually paid to her and was seeking payment of the shortfall and because of her race and religion. She points to Shannon who also complained about discrepancies and was seeking payment of shortfall who was not dismissed. She points to the timing of the removal of all of her shifts, on her religious holiday Eid, and timing of the communication of the decision to dismiss two days after her annual leave for her religious holiday. She points to the fact she’s the only person of colour in the business.

[96]She submitted that the respondents became her new employer when they together as a business partnership bought the business from Debbie Dicken. She says that so far as she is aware Debbie Dicken’s father still owns the premises and that the respondents had to be evicted by bailiffs for non-payment of rent. She says that by operation of TUPE the respondents became her employer, that she had over nine years continuous service, that she was underpaid and protested about it and that she is due eight hours outstanding holiday pay and notice pay.

[97]She gave evidence that she was never accused of theft during her employment or at any time up until she saw it in the documents sent to the Tribunal. She submitted that this is the first of several fabrications by the respondent about her, the second being that she was unresponsive for a week from 21 April 2024 (she says the documents show her constantly WhatsApp messaging both respondents during that week and the third being that she was off sick and did not submit a fit note during that week and the fourth being that she accepted she was unresponsive and blamed her phone. Applying the Law to the Facts Was the claimant dismissed

[98]The claimant was dismissed in the WhatsApp message sent by Mr Paliga to her as a personal message but through the WhatsApp work group chat on 23 April 2023. It said: “Termination of cooperation with the company”.

[99]Those words meant termination of her employment. She read those words on 23 April 2023. She read them in the context of having seen on 21 April 2023 a work rota showing no shifts for her in the coming week. That rota was sent by Mr Szary to the work WhatsApp group. Immediately following receipt of the termination message on 23 April 2023 she saw that she had been removed from the work WhatsApp group. In the context of the rota, the message, and the removal for the group from the group, the claimant properly understood that her employment was terminated.

[100]The decision to dismiss the claimant was made by both Mr Paliga and Mr Szary. The Tribunal accepts the oral evidence of the claimant that they were business partners and joint decision makers. Her evidence is supported by the content of the whatsapp messages in which she is referred by Mr Paliga to Mr Szary and in which Mr Szary refers to the termination of her employment. Did she have the requisite continuous service to bring an unfair dismissal claim under section 98 ERA 1996, in that respect whether the TUPE Regulations applied to transfer the claimant’s employment to the respondents upon their purchase of ‘Food 4 Thought’ on or about 1 March 2023

[101]As at 23 April 2023 the claimant had been employed by Debbie Dicken tranding as the business Food 4 Thought since 11 November 2013. On 1 March 2023 Mr Paliga and Mr Szary bought the business from Ms Debbie Dicken the previous employer. They traded together in partnership as Food 4 thought.

[102]The Tribunal finds that by operation of TUPE the undertaking which comprised the business operating the café entitled Food 4 Thought transferred to Mr Paliga and Mr Szary. The claimant was employed directly before the transfer and remained employed and working the same hours and in receipt of pay after the transfer. As of 1 March 2023 the respondents acquired all the employment law liabilities in relation to the claimant, including her continuous service and her terms and conditions of service under her contract of employment. The Tribunal finds that the claimant had the requisite service to bring an unfair dismissal complaint.

[103]In the alternative, the claimant’s complaint for unfair dismissal succeeds, under section 104 Employment Rights Act 1996, as an automatically unfair dismissal having asserted a statutory right and as such she would not have needed two years’ service in any event as provided by section108(3)(g). The reasoning above on the application of TUPE would be relevant here too. The respondents became her employer on 1 March 2023. What was the reason for dismissal

[104]The Tribunal finds that the principal reason for dismissal was that the claimant had asserted her statutory right to not suffer unauthorised deductions. She had been complaining about deductions made from her March pay. She had made those complaints both face-to-face to Mr Szary and in writing on the WhatsApp group. On 21 April 2023 she again sent a message to the group WhatsApp asking “I don’t know who I’m supposed to speak to about last month’s wage slips. As we’ve still not received payments that is owed”. Was the reason that she had, in good faith, alleged that the respondent infringed a relevant statutory right. In this case, the claimant relies upon the right not to suffer unauthorised deductions under section 13 ERA 1996.

[105]Yes, the principal (though not sole) reason for dismissal was her assertion of a statutory right not to suffer unauthorised deductions. It has not been necessary to determine the fairness of the dismissal. Her dismissal was automatically unfair. There were also facts from which the Tribunal concluded that race and religion played a part in the decision to dismiss and they are set out below. What was the claimant’s notice period? Was the claimant paid for that notice period?

[106]Applying section 86 Employment Rights Act 1996 the claimant was entitled to one week of statutory notice for every complete year of service up to a maximum of 12 weeks. As at 23 April 2023 she had been employed for over nine years. She was therefore entitled to 9 weeks’ notice.

[107]The claimant did not give any evidence to suggest that there was any contractual entitlement that went beyond statutory entitlement to notice.

[108]The respondent submitted, which submissions are rejected, that the claimant had only been employed by it since 1 March 2023 and that she was therefore due no notice. The respondents are wrong in this. They are wrong because the Tribunal has found that there was a TUPE transfer so that the claimant carried with her, her continuous service. There are also wrong because even if she had only been employed by them since 1 March 2023, that would have been more than one month’s employment and so applying section 86, she would have been entitled to one weeks’ notice.

[109]The Tribunal finds, applying section 86, that she was due nine weeks’ notice. Was the claimant due holiday pay on termination of employment and was that pay outstanding and due to her ?

[110]The Working Time Regulations 1998 provide the right to paid annual leave. The Tribunal accepts the claimant’s oral evidence that during the year before the identity of the employer changed, she had a contractual right to 31 days paid holiday including bank holidays. Her claim is that on termination of employment she had two days, being eight hours, outstanding annual leave entitlement.

[111]The documents in this case were inadequate. The respondent failed to provide a P45 showing what payments were made on termination of employment and therefore the Tribunal can only accept oral evidence of the claimant, corroborated by payslips showing holiday pay prior to the transfer of the undertaking. In the absence of any documentation of holiday records from the respondent and in reliance on the oral evidence of the claimant, the Tribunal accepts the oral evidence that her holiday accrued at the rate of 2.5 days per calendar month. It accepts her evidence that as at 1 March 2023 she had taken the annual leave due to her. She therefore accrued two and a half days during March and a further 1.8 days during April. She took one days leave on 21 April 2023. On termination of employment she had accrued leave.

[112]In the absence of any documentation from the respondent, the Tribunal accepts the claimant’s evidence and accepts that she had accrued more leave than she claims. Notwithstanding the findings of accrued leave due to her the claimant pursues a complaint that is limited to two days outstanding annual leave. Accordingly, the Tribunal finds she was due eight hours at £11 per hour being £88 and has not been paid this by the respondent on termination of employment. Did the claimant request and was she given written reasons for her dismissal?

[113]The claimant first asked for the reason for her dismissal on 23 April 2023 when she said I have not asked to resign what is the reason for my termination? in a message to Mr Paliga via the group WhatsApp. She made the same request of Mr Szary on 23 April 2023. Each of these complies with the requirement that the request for reasons be made in writing. The respondent was then required to provide the reasons in writing within 14 days. 14 days of 23 April 2023 would have been 7 May 2023. On 23 April 2023 the respondent told the claimant that she would receive documents confirming the official termination in the near future. The claimant chased up the reason for termination 28 April 2023 saying: “I’d be grateful if you could tell me the reason for termination of my job”.

[114]As set out in the facts above the claimant continued to pursue the written reason for dismissal. On 28 April 2023 Mr Szary said: “As I told you before I have nothing more to say on this matter.”

[115]The Tribunal accepts the claimant’s oral evidence that despite numerous chase ups she never received a written reason for dismissal. The Tribunal notes that despite a deadline for submission of ET3 by 31 August 2023 for the first claim form, and 2 October 2023 for the second claim form, the respondent first responded substantively on 6 November 2023, when it failed to advance reason for dismissal, instead arguing that it had not dismissed the claimant and only advanced reasons for dismissal in March 2024.

[116]The Tribunal finds that the claimant succeeds in her complaint. The respondent has failed to provide written reason for dismissal within 14 days of the date of dismissal. What is the claimant’s race and religion

[117]The claimant identifies as Pakistani and Muslim. Has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different race and/or religion was or would have been treated?

[118]Yes, the fact from which the Tribunal could conclude that there was less favourable treatment is that the claimant was dismissed and Shannon was not. Dismissal is less favourable treatment. It brought her employment to an immediate end and left the claimant distraught about her financial position. Is Shannon an appropriate comparator

[119]The claimant relies upon Shannon, a work colleague who had also complained about pay who is also British but of white British ethnic origin in her race complaint. The claimant also relies on Shannon as an actual comparator in her religion complaint. Shannon does not share the claimant’s Islamic faith.

[120]The Tribunal finds that the Shannon was an appropriate actual comparator in each of the race and religion complaints. As at the date of dismissal 23 April 2023 both the claimant and Shannon had complained about wages still due to them. In response to those complaints made in writing on the WhatsApp group on 21 April 2023, both Shannon and the claimant had shifts removed from them so that they were provided with no work for the coming week. Both Shannon and the claimant asked why they had not been given any shifts. The claimant was dismissed by WhatsApp message on 23 April 2023. Shannon was not. The claimant was Muslim. Shannon was not. The claimant was Pakistani, Shannon was not.

[121]The respondent submitted that Shannon was not an appropriate comparator because (in submission from the respondent but without oral evidence and no evidence from Shannon as to why she resigned) she was later accused of stealing and resigned on 29 April 2023. The Tribunal rejects that submission. As at the date of the act of less favourable treatment complained of, the dismissal, Shannon was an appropriate comparator in that her circumstances were not materially different from those of the claimant.

[122]The claimant did not pursue a complaint that the removal of her shifts was an act of discrimination; her complaint related solely to dismissal. Has the claimant proven facts from which the Tribunal could conclude that the dismissal was because of her race and/or religious belief?

[123]The Tribunal had regard here to the first stage of the reverse burden of proof test in section 136 Employment Rights Act 1996. Section 136 provides that if there are facts from which the Court could decide, in the absence of any other explanation, that a person (the respondents) contravened the provision concerned then the Court must hold that the contravention occurred.

[124]The Tribunal finds that the claimant has shown the following facts from which the Tribunal could decide that she was dismissed because of race i) The claimant was Pakistani. She complained about pay. She was dismissed. ii) Shannon was not Pakistani. She complained about pay. She was not dismissed.

[125]The Tribunal finds that the claimant has shown the following facts from which the Tribunal could decide that she was dismissed because of religion i) The claimant was Muslim and took holiday for Eid. ii) Shannon was not Muslim and did not take a religious holiday for Eid. iii) The claimant and Shannon had each complained about pay from March 2023. iv) The claimant was dismissed on 23 April 2023 immediately after taking holiday for Eid, she did not get to work her next working day Monday 24 April. v) Shannon was not dismissed.

[126]Those facts in relation to the race and religion complaints were sufficient in each case separately to shift the burden of proof to the respondent. Shannon was an actual comparator in the same material circumstances as the claimant. The claimant was treated less favourably than Shannon because she was dismissed.

[127]The Tribunal attempted to support the respondents in closing submission by encouraging them to say why the claimant was dismissed. On three occasions the Employment Judge tried to support Mr Szary to focus on the substantive issues in the case but he persisted in arguing that for him the final hearing should not exist because there had been non-compliance with case management orders by both sides prior to the preliminary hearing on 11 July 2024. He refused to engage in substantive issues in closing submission even over talking the judge to say that she should not give him direction, that he had a plan as to what he wanted to say and that she was wasting his time by interrupting him. The judge acceded to his request not to interrupt any further and Mr Szary’s allocated time for closing submission ran out without him having engaged with any of the substantive issues in this case. The Tribunal supported Mr Paliga in his closing submissions asking him specifically “say why the claimant was dismissed”. He denied that race or religion had played a part in the decision to dismiss but advanced no reason for dismissal. If so, has the respondent shown that there was no less favourable treatment because of race and/or religion.

[128]The respondents had no evidence in chief. The Tribunal had regard to the documents the respondent sent to the Tribunal, and supported the respondents in their closing submissions (though support was resisted by Mr Szary) to state their non-discriminatory reason for dismissal.

[129]The respondent documents, which Mr Szary says was submitted on behalf of Mr Paliga, and Mr Paliga says were their joint submission (but which he did not advance as reason for dismissal in closing submissions), put forward 4 potential reasons for dismissal. The Tribunal finds that the following four potential reasons are after the event fabrications by each and both of the respondents they are;(1) That the respondent had, at the time of dismissal, a reasonable suspicion that the claimant had been stealing from them. The Tribunal rejects the submission as a fabrication because i) it was never put to the claimant at the time ii) it is only put to the claimant after proceedings have been commenced, iii) it isn’t included in the first “Defence of Complaint” email sent by the respondent on 6 November 2023 and doesn’t appear as a reason for dismissal until the ET3 documents which are submitted in March 2024. The Tribunal finds that if the respondents had reasonably suspected that the claimant had been stealing from them, they would have said so at the first opportunity during employment and would have said sooner in response to the claim.

(2) That the claimant was unresponsive, absent without leave, from 23 April 2023. The Tribunal rejects the submissions as fabrication. The claimant had leave on 21 April 2023. The next shift that she would have been due to work was Monday, 24 April 2023 but she had been sent a rota on 21 April 2023 on which she was given no shifts. She was dismissed on Sunday, 23 April 2023 before there could have been any occasion on which it could be said that she failed to attend a shift. Secondly, the Tribunal saw WhatsApp messages sent by the claimant to both the works WhatsApp group, and to Mr Paliga and Mr Szary as set out in the facts above throughout the week from 21 April 2023. She was proactively seeking the reason for her dismissal and her back pay. In no sense of the word could she have been said to have been unresponsive.

(3) The claimant must have been off sick and failed to provide a sick note. The claimant did not say she was off sick, she was chasing the respondent for a response. There was no basis on which the respondent could reasonably conclude the claimant was sick.

(4) The claimant when challenged about being unresponsive said that she had problems with her phone i.e. it dismissed her because she lied about her phone. The Tribunal finds that the respondent did not put to the claimant that she was being unresponsive during that week, the WhatsApp message trail shows that the claimant was chasing both Mr Paliga and Mr Szary for the reasons for her dismissal and for her back pay and that Mr Paliga was directing her to Mr Szary and Mr Szary was clear that he had nothing further to say on the subject of the reason for her dismissal. The claimant was not unresponsive. The claimant was not challenged about being unresponsive. The claimant did not lie and say that her phone had a problem. The Tribunal rejects this as an utter fabrication.

[130]The Tribunal finds that the respondent did not advance a non discriminatory reason for the treatment. The Tribunal was keenly aware that the respondent had no evidence in chief but having had regard to the documentation it sent to the Tribunal as set out in Bundle B and to its submissions (collated from the bundles) it finds that the chronology was more persuasive than anything in the respondent’s documents in this case. The claimant was dismissed within 36 hours of taking a day’s leave for Eid and after protesting about back pay when Shannon (not Muslim Pakistani) had also protested about back pay but had not taken a day’s leave for Eid and was not dismissed. That timeline, found from the claimant’s oral evidence and the what’s app messages, was not disputed by the respondents. The nondiscriminatory reasons advanced, as set out above, were not credible.

[131]The Tribunal notes that the respondent’s position was that it had approached Shannon with its suspicions about theft and she had resigned. The Tribunal can make no finding of fact on this point, it is not necessary to do so. The Tribunal alludes to this assertion to show that it is not credible that there was a non discriminatory reason for dismissal in the suspicion of theft, because Shannon was suspected of theft and, by the respondent’s assertions, not dismissed on the 23 April. No suspicion was put to the claimant. Even if their contention that they suspected the claimant of theft was right the respondents would still have to explain why she was treated differently from Shannon in being dismissed and not approached and questioned.

[132]The Tribunal finds, applying section 136, that in the absence of any nondiscriminatory reason for the less favourable treatment of dismissal, the claimant’s race had a material influence on the mental processes of the joint decision makers Mr Paliga and Mr Szary.

[133]The Tribunal finds, in the absence of any non-discriminatory reason for the less favourable treatment of dismissal, that the claimant’s religion had a material influence on the mental processes of the joint decision makers Mr Paliga and Mr Szary.

[134]The principal (not sole) reason for dismissal in unfair dismissal law was the complaint about back pay. Race and religion were each also material influences on the decision to dismiss the claimant. The dismissal was both unfair and discriminatory.

Conclusion

[135]The claimant’s complaints each succeed for the reasons set out above and the matter will proceed to a remedy hearing. EMPLOYMENT TRIBUNALS Claimant: Miss A Malik Respondents: 1. Mr Przemyslaw Paliga 2. Mr Zbigniew Szary 3. Mr Paliga and Mr Szary trading as Food 4 Thought Heard at: Liverpool On: 3 February 2026 Before: Employment Judge Aspinall Mr R Cunningham Mr D Williamson Representation Claimant: In person Respondents: In person Judgment on Remedy Judgment The respondent is ordered to pay to the claimant £ 13 1381 made up as set out in the Schedule.

Background

[1]The amount in the Schedule is different from the amount given orally (which was £12 531). Judge Aspinall apologises that there was an error in the calculation of interest prepared prior to oral judgment which is corrected here and set out in full in the attached Schedule.

[2]By a judgment dated 11 October 2024 the claimant’s complaint of unfair dismissal succeeded. The claimant’s complaint of race discrimination succeeded. The claimant’s complaint of religion or belief discrimination succeeded. The claimant’s claim for notice pay succeeded and the claimant’s claim for outstanding holiday pay succeeded. The claimant’s complaint that the respondent failed to provide written reasons for dismissal succeeded. The claimant’s claim for unauthorised deduction from wages was dismissed on withdrawal, payment having been made.

The hearing

[3]The Tribunal was supported by interpreter Ms Kowaleska who took her interpreters oath.

[4]The hearing had previously been postponed on 11 November 2025 because Mr Paliga had not been given notice of the hearing and had not attended. Mr Szary had been given notice of 11 November hearing and did not attend. Following the November hearing a case management summary was sent which addressed each of the respondents separately and directly, informing them that they were entitled to attend and be heard as to how much compensation was to be awarded to the claimant. Case management orders were made to prepare for that hearing. A notice of hearing for 3 February 2026 was sent to each of them at the addresses they had provided to the Tribunal.

[5]Mr Szary did not attend today. We waited for him and at 10.30 the clerk spoke to him on the telephone. He was aware of the hearing, did not intend to attend and was aware that we would proceed in his absence and that the likelihood would be that an award would be made against him.

[6]Mr Paliga attended and had prepared a written statement and submission which was included in the bundle.

[7]Miss Malik had prepared the 6 page bundle. It included her Schedule of Loss, her Impact Statement and Mr Paliga’s statement.

[8]Everyone agreed that the following documents were to be taken into account and that nothing else was needed. o The 6 page bundle comprising Schedule of Loss, Impact Statement, Mr Paliga’s Statement and a one page screen shot of his bank account from February 2023. o The Judgment sent to the parties on 17 October 2024. o The Written Reasons sent to the parties on 31 October 2024. o The Case Management Summary and Orders sent to the parties on 11 November 2025

[9]The claimant gave an affirmation to confirm that her statement and Schedule of Loss were true. She answered supplemental questions from the Tribunal. Mr Paliga did not wish to question her.

[10]Mr Paliga swore a religious oath and confirmed that his statement was true. Miss Malik did not wish to question him.

The Facts

[11]The claimant’s date of birth is 14 March 1989. She was 34 years old when dismissed on 23 April 2023. She had worked for the business for 9 years. She was employed on a salary of £ 11 440. She was dismissed by whatsapp message after taking leave for Eid. The Tribunal found in the liability judgment that there was a discriminatory dismissal based on race and religion. The claimant idenitfied as Pakistani Muslim.

[12]Following dismissal the claimant was deeply distressed at her loss of income and at the method of communication of her dismissal by whatsapp and the removal of her shifts which her colleagues could see.

[13]She asked for reasons for dismissal and they were denied to her. She pursued a tribunal claim and faced false allegations of theft by her former employers that had never been raised during her employment.

[14]She was out of work for 8 weeks. She then found new employment at the same rate. She stayed there a little while but then moved to a new employer with whom she has remained. She has ongoing feelings of vulnerability that her employment might be terminated.

[15]In late 2024 after her judgment she was contacted by a BBC radio journalist, the contact had come through her former colleague Ms Dicken. The claimant gave an interview about her experience in losing her job, the discrimination she had suffered, and she provided the journalist with a photograph of her and her children celebrating the tribunal victory. The photograph was published with an article on-line.

[16]She consulted her GP at some point after her dismissal and was offered anti depressant medication but chose not to take any. She agreed to talking therapy and had to wait a long time so that it only began in late 2025. She has had 4 sessions of a course of 12 sessions as at the date of the remedy hearing. Relevant Law Unfair dismissal basic award

Relevant Law

[17]The Employment Rights Act 1996 at section 119 provides the formula for calculation of a basic award where a claimant has succeeded in a complaint of unfair dismissal. Section 119(1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount for each of those years of employment.

(2) In subsection (1)(c) “the appropriate amount” means (a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one, (b) one week's pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c) half a week's pay for a year of employment not within paragraph (a) or (b).

(3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years. Compensation for losses flowing directly from an act of discrimination

[18]Section 124 Equality Act 2010 provides that if a Tribunal finds that an employer has discriminated against an employee it may order the respondent to pay compensation to the claimant. The aim is to put the claimant in the position, so far as is reasonable, that she would have been in had the discrimination not occurred. Any loss flowing directly from the discriminatory act will be recoverable. 124 Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.

[19]In Chagger v Abbey National plc

[2010] IRLR 47

the factors to be considered in assessing compensation for discrimination losses included whether the employment would have terminated anyway, whether the individual would have been promoted or received a pay rise, what employment has been or will be obtained and what the financial rewards of new employment will be and whether they will increase to meet the losses currently being suffered at some point in the future.

[20]The losses are calculated net (and can be grossed up where a tax liability will attach). There is no statutory cap on losses flowing directly from acts of discrimination. Interest can be added to the sum awarded. The claimant is under a duty to mitigate. Recoupment does not apply. Loss of statutory rights

[21]A tribunal may award compensation for the lost value of accrued statutory rights. The award will form part of the compensatory award but recoupment does not apply. There is no prescribed figure but the amount will range from £ 250 - £ 500 ordinarily. Failure to provide written reasons for dismissal

[22]The Tribunal may award two weeks pay where an employer has failed to provide written reasons for dismissal. ACAS uplift

[23]A Tribunal may award a percentage uplift up to a maximum of 25% to reflect an unreasonable failure by an employer to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Injury to feelings

[24]An injury to feelings award is available where a Tribunal has upheld a complaint of discrimination. The award is to compensate the claimant for the anger, distress and upset caused by the discriminatory treatment. It is compensatory not punitive and should be just to both parties. The award should not be too low as that would diminish respect for the anti-discrimination legislation but should not be too high either as suffering discrimination could then be seen as a path to untaxed riches. The award should take into account the value of the money in everyday life. Translating hurt feelings into a financial award is bound to be an artificial exercise. Tribunals must do the best they can on the available material to make a sensible assessment.

[25]In Vento v Chief Constable of West Yorkshire Police (no2)

2003 IRLR 102

the Court of Appeal identified three bands of compensation. The bands are designed to ensure a measure of consistency and fairness in the way in which tribunals approach the task of valuing injury to feelings.

[26]The top band should be awarded in the most serious cases such as a lengthy campaign of discriminatory harassment. The middle band should be used for serious cases and the lower band is for less serious cases where there might have been isolated or one off acts of discrimination

[27]The boundaries of the bands are updated regularly. The lower band at the date of the claimant’s dismissal and complaint to the Tribunal was £ 1 100 to £ 11 200.

[28]In Eddie Stobart Limited v Miss Caitlin Graham

[2025] EAT 14

Judge Barry Clarke emphasised the importance of evidence of injury. There can be no award if there is no evidence of injury. However, in a discrimination case a claimant will usually suffer some injury to feelings. By its very nature discrimination is upsetting and may cause injury. In London Borough of Hackney v Adams

[2003] IRLR 402

the EAT said “such injury may of course be compounded by the particular manner in which the discriminatory conduct itself is made manifest. For example harassment over a lengthy period will plainly result in more considerable distress that a single act of discrimination and should be compensated for accordingly”.

[29]The Tribunal must remember to compensate for the injury suffered not penalise for the manner of discrimination.

[30]In Stobart the EAT said that whether the discrimination is overt or not can also be a relevant factor. It may validly be inferred that overt discrimintaion is more likely to cause distress and humiliation because the victim has understood the motivation at the time to be discriminatory. An asymmetry of power can also be a relevant factor. The burden is on the claimant to show that their feelings have been injured and to what extent. The Tribunal may take into account; the claimant’s description of their injury, the duration of the consequences, the effect on past, current and future work, the effect on personal life and quality of life. Interest

[31]The relevant law is set out in Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996 /2803. The interest rate to be applied is 8%. A Tribunal may award interest to compensate for the fact that the compensation is awarded after the loss compensated for has been suffered. Interest may be awarded on past financial loss, injury to feelings awards, aggravated and exemplary damages awards. Interest on injury to feelings awards is calculated from the date of the act of discrimination complained of until the date of calculation of the compensation. Interest on past financial loss is calculated as running from a mid point date between the date of the act of discrimination complained of and the date of calculation. Mitigation

[32]An employee is under a duty to mitigate her loss and a deduction in compensation can be made if she has not fully done so. It is for the respondent to adduce evidence to demonstrate that the loss could have been mitigated. The EAT in Ministry of Defence v Hunt [1996]ICR 554 point out that it is for the employer to provide the evidence in support of its argument that the claimant could have mitigated loss. Vague assertations of a failure to mitigate are unlikely to succeed. Where evidence of failure to mitigate is adduced it is for the tribunal to conclude whether the claimant took all reasonable steps to mitigate her loss. Submissions

[33]We heard submissions from both parties as to the non pension loss elements of the award. The respondent’s submissions33.1 Mr Paliga submitted that he cannot afford to pay any award, that he has never been in this position before. He does not dispute liabilty or responsibility but says he paid wages to Mr Szary who then did not pay them to the claimant. His position is that he was the chef and Mr Szary was the business manager who made the financial decisions so that any award should be apportioned to hold Mr Szary responsible.

33.2 Mr Paliga submitted that the claimant’s submission in her Schedule of Loss for £ 10 000 for injury to feelings seems excessive when she was able to work again so quickly. The claimant’s submissions The claimant made the following closing submissions.

33.3 The dismissal caused her to be upset and distressed, affected her confidence and personality. It affected her socially and financially. She was a single mum and worried for her family finances. The discriminatory dismissal has made her feel vulnerable at work now and has had a lasting effect on her confidence and her ability to raise issues at work.

33.4 That the ACAS uplift must apply because she was dismissed having had shifts removed publicly by whatsapp and then ignored when she asked for clarification and a reason for dismissal.

33.5 Interest should apply because she has had to wait a long time for her money. Applying the Law to the Facts Basic award

[34]The claimant’s date of birth was 14 March 1989. She was dismissed with effect from 23 April 2023. She was 34 years old when dismissed. Working backwards from the date of dismissal she had 9 years service so that the formula for calculation of the basic award was 9 x 1 x £ 220.

[35]The claimant is awarded a basic award of £1980 Losses flowing from discrimination

[36]The claimant had 8 weeks without pay so incurred a loss of earnings of £ 1760. She was actively job hunting and found work within 8 weeks. She did not fail to mitigate.

[37]The claimant is awarded immediate loss of earnings of £ 1760. Loss of statutory rights

[38]The claimant had over 9 years service as at the date of dismissal so it is appropriate, and not contested by the respondent, that the award for loss of statutory rights should be at the higher end of the usual range. She is awarded £ 500 ACAS uplift

[39]The ACAS Code applies to this unfair dismissal and discrimination case.

[40]The Tribunal found that there was a failure to comply with The ACAS Code on Discipline and Grievance 2015 when the respondent dismissed by whatsapp message without having informed the claimant of any allegation and without a fair hearing and when it failed to look into her complaints about being underpaid.

[41]Those failures both disciplinary and grievance related were unreasonable in the context of an employee of nine year’s service with no previous disciplinary or absence record.

[42]The Tribunal considers it just and equitable to award an uplift in respect of the losses having regard to the lack of communication with the claimant, the removal of her shifts by whatsapp communication to the group of co-workers and the timing and content of the whatsapp message itself terminating employment. It had regard to her previous protest about underpayment and the respondent’s failure to address this as a grievance and the punitive termination of employment, followed by false accusations of theft.

[43]The Tribunal considers it just and equitable to award an uplift in respect of the the injury to feelings because of the discriminatory nature of the dismissal and the proximity of the termination of employment to her leave for a religious holiday which showed discriminatory motivation.

[44]There was no regard paid whatsoever to her employment rights or the ACAS Code. We consider it just and equitable to award the full 25 % uplift in both regards, for process and for discriminatory motivation.

[45]The uplift does not apply to the basic award. Injury to feelings

[46]The claimant had prepared a witness statement and gave oral evidence about the impact of the discriminatory dismissal on her. The Tribunal had regard toteh claimant’s description of her injury, the duration of the consequences, the effect on past, current and future work, the effect on her personal life and quality of life.

[47]There was no medical evidence produced though the Tribunal accepted her oral evidence on impact and accepted that she was offered anti depressant medication and has had to wait and only recently started a course of 12 weeks talking therapy, by the NHS.

[48]Her dismissal affected her immediately. She was shocked and felt humiliated because the shift rota with no shifts for her was sent to everyone. She felt humiliated because the timing around Eid was apparent to colleagues. She knew that they would know that she was given no shifts after she had time off for Eid. The impact was significant but short lived. She was able to work again in 8 weeks. She did not describe her ongoing feeling of vulnerability as being in any way connected to her race or religion. She said that she was reluctant to raise things with her new employer, suggesting to the Tribunal that it was her perception that it was her complaints about unlawful deductions that left her feeling vulnerable, rather than her race or religion. She did not for example say that she hid her religion or felt vulnerable taking leave for religious festivals with her new employer. There was scant evidence of any long term effect on the claimant who, to her credit, found new employment quickly at the same rate of pay in a similar café assistant role and has attained continuous service with her new employer. Interest

[49]The Tribunal awards the claimant interest on her injury to feelings award from the date of the act of discrimination complained of (dismissal on 23 April 2023) until the date of today’s calculations 3 February 2026 as follows: Injury to feelings award £ 5000 Date of discrimination 23 April 2023 Calculation date 3 February 2026 Interest rate 8% Number of days 365 +365 + 286 = 1016 days Interest = 1016 days x 0.08 x 1/365 x £ 5000 =£ 1113 We award interest on injury to feelings of £ 1113

[50]The Tribunal awards the claimant interest on her immediate loss of earnings at the rate of 8% awarded from the mid point date between the date of the act of discrimination complained of (dismissal on 23 April 2023) and the date of today’s calculations 3 February 2026 . The formula for calculation is number of days from discriminatory act date (1016) to calculation date (3 February 2026) multiplied by half, (to find the mid point) multiplied by 8 % multiplied by 1/365 to get a daily rate and then multiplied by the amount of the award £ 2788. days/ 2 x 0.08 x 1/365 x £ 2788 award in total Recoupment

[51]The recoupment provisions do not apply to the basic award. The recoupment provisions do not apply to the rest of the award as it is for loss flowing from an act of discrimination. Overall award

[52]The Tribunal had regard to the amount of the injury to feelings award and the effect of the ACAS uplift on the award overall. The Tribunal had regard to the total amount awarded and considered in the context of the unfair and discriminatory treatment experienced by the claimant, her length of service and her salary of £ 11 440, that the total sum awarded is an amount that is restrained because of limited evidence of injury to feelings but recognises that this was a dismissal, and proportionate with regard to her income but high enough to command respect in society for anti-discrimination legislation.

[53]The Tribunal declines to apportion liability for the payment between Mr Paliga and Mr Szary whom it has found were partners in the business. The claimant may seek to enforce this judgment against either or both of them in full or in part.