Mr P Lawreniuk v B & K Environmental Services Ltd: 3303031/2024

EMPLOYMENT TRIBUNALS

Case No 3303031/2024

Between

Mr P LawreniukClaimant

B & K Environmental Services LtdRespondent

Before

Employment Judge French

In person for claimant

Mr S Maini-Thompson (instructed by Counsel) for respondent

Date 14 October 2025

JUDGMENT

[1]The complaint of direct disability discrimination is not well-founded and is dismissed.

[2]Following concession by the respondent the complaint of unfair dismissal succeeds.

[3]The respondent shall pay the claimant a basic award of £5382.84.

[4]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply. Approved by: Employment Judge French 14 October 2025

REASONS

[1]By claim form dated 13 March 2024, the claimant brings complaints of unfair dismissal and direct disability discrimination. The respondent accepts that it dismissed the claimant without a fair process but denies discrimination. The respondent accepts that the claimant was disabled within the meaning of s6 of the Equality Act 2010.

[2]The claim was before the Tribunal for final hearing on 17 to 19 June 2025. It had originally been listed for 4 days however owing to sitting availability, the listing had been reduced by the Tribunal to be heard in 3 days. Unfortunately, it was not possible to conclude the case in that time and as such the case was adjourned to 13 and 14 October 2025. On the latter occasion the Tribunal gave its decision on liability and went on to determine remedy.

[3]The claimant requested written reasons for the decision on 3 November 2025. This was referred to EJ French on 7 November 2025. The Tribunal apologises for the delay in providing the written reasons owing to other sitting commitments. Case Number: 3303031/2024 2 Preliminary issues

[4]The claimant had not produced a witness statement in accordance with the previous directions of the Tribunal. At the outset of the hearing the respondent made an application to strike out the discrimination complaints save for the complaint relating to the claimant’s dismissal. It was made pursuant to rule 38(e) of the Employment Tribunal Procedure Rules 2024, namely that it was not possible to have a fair hearing. This was on the basis that the complaints from the ET1 were very vague and difficult to understand and without witness evidence a fair trial on the issues was not possible.

[5]The claimant stated he had a limited command of English and had been assisted by his niece during the proceedings. He said that she had only recently shared the previous order with him (her email having been used as a correspondence address) and his understanding was that he would be asked questions at the hearing and present his evidence in that way. The claimant stated that he was able to produce a statement at this stage if given an opportunity to do so.

[6]The respondent's position was that if the claimant was afforded with this opportunity, it would not be possible to resolve the claim in the allocated time because they would need preparation time on receipt. The Tribunal noted that the hearing time had already been reduced by the Tribunal itself and if it had not been, it may have been possible to deal with the claim in that time whilst still affording the claimant some additional preparation time.

[7]The Tribunal dealt with the matter by delaying the decision on strike out and giving the claimant an opportunity in the meantime to prepare a statement given the circumstances and the fact that the Tribunal were satisfied that the claimant had not necessarily understood or known about the requirement to produce a witness statement.

[8]The matter was stood down until the next day for the claimant to provide a witness statement which he complied with. Upon receipt the respondent did not require any additional preparation time and confirmed that they were able to proceed with the complaints. As such the claim proceeded.

Evidence

[9]The Tribunal had a bundle consisting of 300 pages. We also had a document prepared by the claimant listing a number of discrepancies he relied on which consisted of 27 pages.

[10]For the respondent, the Tribunal had statements from Wojciech Bernady, Krzysztof Pogwizd, Bozena Cebula and Katarzyna Kawalilo. Having been given additional time at the outset of the hearing, we had a witness statement from the claimant. We also heard closing submissions from both parties and had regard to the same. Case Number: 3303031/2024 3

The Issues

[11]The issues the Tribunal need to determine are set out in the case management order dated 18 December 2024 (which does not appear in the bundle). These are set out below using the same numbering: 6. In the course of the present Preliminary Hearing, the Tribunal went through the allegations of direct disability discrimination with the Clamant who confirmed that the allegations pursued were as follows:a. At a capability hearing of 9 March 2022, Katarzina Kawalilo and BozenaC ebula said that the Claimant was disabled, not up to the job, was using a walking stick and was a danger to employees;

b. From May 2022 to October 2023, Mrs Cebula reminded the Claimant daily to spend breaks in the canteen located upstairs to be observed by a colleague and to accompanied by another colleague and, further, Mrs Kawalilo said the same thing in monthly one-to-one meetings. No other employees were told to do this;

c. On multiple occasions from May 2022 to September 2023 (on dates that the Claimant cannot recall), Mrs Cebela forbade the Claimant, when he was working on the line, from lifting certain items, such as boxes, which was part of his role;

d. On 23 May 2023, when signing into work, Darius Kudelski (a driver who is now deceased) asked the Claimant “What are you doing here?” As the Claimant walked away, Mr Kudelski said to Wojciech Bernady “What sort of company will this be if those types of employees work here?”

e. The Claimant’s dismissal on 9 October 2023. 7. The issues for the Tribunal are whether these incidents took place and if so whether they constituted direct discrimination on the ground of the Claimant’s disability. The Law Discrimination

The Law

[12]Section136(2) Equality Act 2010 provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision. Case Number: 3303031/2024 4

[13]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd.

[14]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage. However, if the claimant fails to prove a ‘‘prima facie" case in the first place then there is nothing for the respondent to address and nothing for the Tribunal to assess Ayodele and Hewage.

[15]At the first stage of the test, when determining whether the burden of proof has shifted to the respondent, the question for the Tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.

[16]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council

[2006] ICR 1519

EAT, Madarassy v Nomura International p/c

[2007] ICR 867

, and Ayodele v City link Ltd (above); which reviewed and analysed many other authorities.

[17]At the first stage a Tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant, and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the Tribunal is entitled to have regard to that evidence.

[18]It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required, see Madarassy (above). Case Number: 3303031/2024 5

[19]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board

[2012] IRLR 870

, SC.)

[20]The prohibition on discrimination against employees is found in section 39(2) Equality Act 2010. Employers must not discriminate: a) in the terms of employment; b) in the provision of opportunities for promotion, training, or other benefits; c) by dismissing the employee; d) by subjecting the employee to any other detriment.

[21]Section 13 Equality Act 2010 states: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Unfair dismissal - Polkey

[22]As part of remedy the Tribunal has considered given the respondent accepts that the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

. The respondent said that the claimant would have been dismissed in any event, therefore any award should be reduced by 100%.

[23]In undertaking this exercise, we are assessing what we would have done; we are assessing what this employer would or might have done. We must assess the actions of the employer before us, on the assumption that the employer would this time have acted fairly though it did not do so beforehand: Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

at para 24. The question therefore for the Tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred.

[24]The Polkey adjustment is only applicable to the compensatory award, not the basic award. The tribunal must assess any Polkey deduction in two respects: 1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 2) What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal? Fact finding and conclusions – Discrimination Background Case Number: 3303031/2024 6

Background

[25]The claimant was employed as a picker for the respondent, which is a waste disposal company. His role includes picking through and sorting waste into different categories. His employment commenced on 1 February 2015 and ended in November 2023. He was dismissed by letter on 9 October 2023, with notice.

[26]In terms of the respondent’s site, we understand that it includes skip hiring, waste management and recycling, and it was not in dispute that that involved a number of large vehicles entering the site to drop waste. It also involved the operation of large and heavy machinery.

[27]The claimant was placed on furlough from 1 April 2020 to 3 September 2021 owing to the covid-19 pandemic. The respondent requested the claimant return to work on 1 October 2021, but he produced a sick note which stated that he was not fit for work until 1 December 2021. This was then further extended until 23 May 2022. The claimant returned to work at that time and had therefore not worked for just over two years at the point he returned.

[28]In determining these complaints, the Tribunal has in mind the burden of proof provisions and the fact that discrimination can be sub-conscious. This is a case where, applying the provisions in Hewage, we have been able to make positive findings on the evidence one way or the other and save where otherwise expressly identified, have done so.

[29]In relation to the discrepancies identified by the claimant in his 27-page document, we make the observation that most of the differences identified relate to a copy letter not containing a signature, whereas another version does. This would not be unusual in that a retained copy printed from a system would not necessarily contain a signature. There is also an issue taken with the fact that documents disclosed in the subject access request were unredacted whereas versions in the bundle were redacted. Again, we do not consider this effects the legitimacy of the documents in any way; a redaction has been for the purpose of the hearing bundle which is not uncommon.

[30]In addition, several of the documents in which alleged discrepancies are identified are not relevant to the issues to be determined by the Tribunal. Where a document has been considered by the Tribunal and the claimant has identified a discrepancy with that document, the Tribunal is satisfied that the content and substance of the document remain unchanged, despite any minor differences on date or signature. List of Issues 6(a) At a capability hearing of 9 March 2022, Katarzina Kawalilo and BozenaC ebula said that the Claimant was disabled, not up to the job, was using a walking stick and was a danger to employees.

[31]Whilst the claimant was on sick leave, there was a meeting between him and members of the respondent company on 9 March 2022. That included Ms Kawalilo and Ms Cebula. Case Number: 3303031/2024 7

[32]The first issue for the Tribunal to determine is at List of Issues 6(a), which concerns that meeting. We can see the invitation to the meeting at page 81 of the bundle and that sets out the purpose of that meeting. We can also see at page 83 the letter that was sent following that meeting. We have also noted at page 82 the alternative roles that were looked at, at the time of that meeting. Finally, in relation to this issue we have looked at page 98 which is the claimant’s complaint about the meeting notes following that meeting.

[33]The claimant’s case is that Ms Kawalilo and Ms Cebula called the claimant disabled in that meeting and said that he was not up to the job, was using a walking stick and was a danger to employees. Looking at the contemporaneous notes prepared following that meeting at page 83, the Tribunal notes there is no reference to those comments.

[34]Following the meeting the claimant did raise a complaint which can be seen at page 98 of the bundle. The Tribunal also notes the claimant’s own complaint following the meeting, does not include reference to such comments having been made. Based on that contemporaneous evidence and fact that the claimant does not raise this, in circumstances where he does separately raise a complaint about the meeting, on balance we conclude that those words were not used.

[35]The Tribunal notes that the words in the list of issues is different to that which the claimant has relied on in his witness statement where he says he was told: “You’re not fit for work, you won’t manage.”

[36]In that regard, we do note that that meeting was about capability and the ability of the claimant to do his job. On the respondent witnesses account, the claimant had returned to work briefly prior to that meeting and only been able to work for a few hours. It is also not in dispute that the claimant used hiking sticks to assist him to walk around.

[37]The Tribunal does conclude in those circumstances, that there were discussions around the claimant’s medical condition and the impact this had on his duties, because that was precisely what the meeting was about. The Tribunal concludes that this was not less favourable treatment because it was exploring the options to get the claimant back to work and any comments made, were made in that context.

[38]In that meeting, the respondent did look at alternative roles that may be available to the claimant, as documented at page 82. Ultimately, in due course the claimant was able to come back to work on a part-time basis. The respondent’s evidence is that he was the first employee to be able to work part time and that came at a cost to them, because they had to get an agency worker to cover the rest of the claimant’s work. That was done at a time when the respondent was also facing financial challenges in light of the Covid-19 pandemic.

[39]For those reasons, the content of the 9 March meeting was not unfavourable treatment, and the complaint therefore fails on that basis. Case Number: 3303031/2024 8 List of Issues 6(b) From May 2022 to October 2023, Mrs Cebula reminded the Claimant daily to spend breaks in the canteen located upstairs to be observed by a colleague and to accompanied by another colleague and, further, Mrs Kawalilo said the same thing in monthly one-to-one meetings. No other employees were told to do this.

[40]On this issue, the evidence of all of the respondent witnesses was that all staff were required to take their breaks in the canteen. Ms Cebula’s evidence was that this was required for safety reasons so that no one was alone in the waste disposal area and so that food was not consumed in that area around rubbish.

[41]In cross examination, the claimant accepted that all employees take their breaks in the canteen. He went on to say that his issue was that he had difficulties getting to the canteen because of his disability.

[42]The complaint must therefore fail on the basis that it was not just the claimant who was told to take breaks in the canteen. It was all employees, and this applied whether they had a disability or not. As such, it could not have been done because of the claimant’s disability. List of Issues 6(c) On multiple occasions from May 2022 to September 2023 (on dates that the Claimant cannot recall), Mrs Cebela forbade the Claimant, when he was working on the line, from lifting certain items, such as boxes, which was part of his role

[43]In relation to this issue, Ms Cebula and Ms Kawalilo accepted that they instructed the claimant not to lift boxes that were more than half full. They accepted that they gave him instructions to only fill the boxes half full.

[44]The claimant says this is unfavourable treatment because it prevented him from doing his role properly and ultimately, he was criticised on his performance.

[45]The Tribunal considers that the instruction not to lift boxes more than half full was implemented for him when he returned to work and as an adjustment to his role. The evidence of both Ms Cebula and Ms Kawalilo was that this was implemented as a means to assist him.

[46]Separately, the evidence of those witnesses was that the claimant’s colleagues had agreed on his return to work that they would help him move the boxes containing metal and the instruction relating to only half filling the boxes was also related to their health and safety when they came to move the boxes on by them. Effectively the instruction not to overfill the boxes was to prevent any risk to others who then handled the boxes. Ms Kawalilo’s evidence was that she had had sick notes from other workers in relation to lifting overflowing boxes, which the Tribunal considers supports that it was a legitimate health and safety concern, and the request was made to protect all workers.

[47]In terms of the dismissal for poor performance which we will come onto separately below, the evidence does not suggest that not being able to lift boxes Case Number: 3303031/2024 9 was relied on as part of that. Rather, it was issues around productivity and that he did not follow instructions.

[48]The Tribunal therefore concludes there was no less favourable treatment in the circumstances. The instruction was meant to assist the claimant. Further, the instruction was also not given because of the claimant’s disability; it was given with the intention of protecting the health and safety of all staff. List of Issues 6(d) On 23 May 2023, when signing into work, Darius Kudelski (a driver who is now deceased) asked the Claimant “What are you doing here?” As the Claimant walked away, Mr Kudelski said to Wojciech Bernady “What sort of company will this be if those types of employees work here?”

[49]At the outset of the hearing, it was clarified that the date of this allegation is incorrect and that the correct year is 2022, not 2023 it being noted that Mr Kudelski died in February 2023.

[50]In looking at this issue, the Tribunal notes that it is not mentioned in the claimant’s ET1 claim form or his further and better particulars at page 36. It has however been understood as a complaint during the case management process and included in the list of issues as worded above.

[51]It is noted that in the claimant’s witness statement he repeats the second part of that comment. However, when the issue was put to the respondent witnesses in cross examination, it was said to have been said in different terms namely “What are you doing here?” was proceeded by a comment about how he was supposed to work like this, while the individual pointed out his stick and started to laugh and then said, “that is going to be interesting.”

[52]Mr Bernady is said to be present during that incident, and he denied that it happened, in any of the terms framed by the claimant. Mr Kudelski died in February 2023 and therefore the respondent has been unable to call him as a witness and the Tribunal have not been able to hear from him. The respondent's position however is that on the evidence of Mr Bernady this was not said.

[53]In resolving the dispute, we note that the claimant did not make any complaints about the incident at the time. This is an individual that has raised complaints in the past and as we can see at page 98 of the bundle by way of example. The Tribunal does also consider that on the face of it, this is a blatant discriminatory comment, which despite the claimant’s bringing a complaint of discrimination related to disability, he does not mention until the process of case management. Therefore, he raised no previous complaint with the respondent, nor was it included in the original claim.

[54]In addition, what is said to have been said differs in the claimant’s witness statement with what he put to the respondent in cross examination. Given those inconsistencies in what is alleged to have been said and the lack of supporting evidence at the time by the claimant by way of complaint, we therefore prefer the respondent’s position that it was not said. Case Number: 3303031/2024 10

[55]We therefore conclude that this comment was not said and as such there is no unfavourable treatment which could be because of disability. List of Issues 6(e) The Claimant’s dismissal on 9 October 2023.

[56]As a matter of fact, the claimant was dismissed on 9 October 2023, with his last day being 17 November 2023. The Tribunal are satisfied that the dismissal does amount to unfavourable treatment and we therefore look at the reason for the dismissal.

[57]The respondent puts forward a number of reasons for why the claimant was dismissed in October 2023. This included his failure to comply with instructions around the prohibition of lifting heavy items and eating lunch in the canteen, but the primary reason is said to be because of low productivity. It was put under the umbrella of poor performance.

[58]We are assisted by the dismissal letter itself at page 112, to assist with identifying the reasons for dismissal. The Tribunal does notes that first paragraph of that letter which reads: The decision has been made to terminate your employment with B&K Environmental Services Ltd due to poor work performance, the company has tried everything to ensure your safety and further development, unfortunately we have concluded that this is not the job for you, the work you do is difficult, hard and it is teamwork, unfortunately you are delaying the team. We had a lot of complaints about your work, and we decided it would be best to end our relationship with you. Your line manager warned you several times that you shouldn't do anything weird, but you didn't care. The way of moving: on crutches is not safe for you and others, we are really sorry for to let you go , but we do not have alternative employment for you, and we do not feel this environment is suitable for you. This letter constitutes official notice of the end of your employment.

[59]It is accepted by the claimant that given his poor command of English and the fact that much of the respondent's employees were Polish that communications did take place in Polish. It is understood that the dismissal letter was therefore sent to the claimant in Polish and then translated to English by way of copy. Mr Bernady explained that the letter is worded in the way it was because it was translated from Polish to English and therefore linguistic sensitivity could not be accounted for in the translation.

[60]Whilst this may be the case, the Tribunal is not able to read Polish to compare the original version.

[61]In looking at the burden of proof provisions under s.136, we do consider that the content of that letter as before the Tribunal is enough to shift the burden of proof to the respondent on this issue. We are satisfied in the absence of any explanation from the respondent, that there are facts from which we could conclude discrimination. That is because there is a reference to the claimant’s way of moving, which we consider relates to his disability.

[62]Given that the burden of proof shifts, the respondent must therefore prove that the treatment was in no sense whatsoever because of the claimant’s disability. In that regard, the respondent relies on the same treatment to another Case Number: 3303031/2024 11 employee who was dismissed at the same time as the claimant. The respondent says that she was not disabled and was also dismissed for poor performance. That is Ms Grazyna Mach and the dismissal letter is at page 114. The Tribunal notes it is dated 9 October 2023 which is the same date as the claimant’s dismissal letter.

[63]The claimant said in cross examination that the real reason Ms Mach was dismissed was also related to disability, namely that she had an operation due and needed to have time off work. This has not been suggested at any time by the claimant prior to his cross examination, and nor had he adduced anything to that effect. In those circumstances we accept the respondent’s position that that individual was not disabled. Again, we note her dismissal letter at page 114 which indicates she is being dismissed for poor performance.

[64]That is said to be one of the same reasons why the claimant was dismissed, and we do consider we support that the claimant’s dismissal was not related to disability but economic circumstances requiring the removal of poor performers.

[65]We note by way of the respondent's explanation, the evidence of Ms Kawalilo and Ms Cebula that they were concerned with the claimant’s performance for some time. This is supported at page 107 where there is reference to performance issues in August 2022. It is also supported by the review in February 2023, at page 121 where there was a reminder to the claimant not to lift heavy crates.

[66]The evidence of Ms Kawalilo is that in addition to the two documented accounts which we have referred to, the claimant was spoken to informally and that is set out at paragraph 23 of her statement. She refers to this being a specific issue in October 2023 because of the economic state of the business. Her evidence is that there were economic circumstances which meant that it needed to let go of workers who were less productive in order to ensure that the business could continue to operate.

[67]Her position is also supported by the evidence of Ms Cebula at paragraph 8 of her witness statement. She says there were a number of informal meetings with the claimant about performance and in her oral evidence, said that the claimant was fifty per cent less productive. We note that both witnesses base their evidence on their direct observations of the claimant, but they also say they received complaints from other employees about how he worked, which negatively impacted the other individuals.

[68]In the context of the explanation by the respondent, the Tribunal also notes that the claimant had his first medical episode in 2019. We consider that the respondent took steps to support the claimant at this time and get him back into his role. We note that this included obtaining a personal trainer for him to assist with his fitness levels. In addition, the respondent allowed him to work part-time which is documented at page 105 and we accept that this was at cost to them because of their evidence that as a result they had to use agency staff to fill the rest of his role. We do note that the claimant gradually increased his hours back up again, and that is set out within the review meeting notes. The Tribunal Case Number: 3303031/2024 12 does consider in that context, that this would support the explanation that the dismissal was due to poor performance in circumstances where a number of steps were taken to support him around his medical condition.

[69]The Tribunal are satisfied on the evidence that the dismissal was not because of the claimant’s disability. We accept the respondent’s explanation that it was poor performance, which included a failure to follow management instructions which were made as adjustments for him in terms of supporting him at work and also for the health and safety of others. A business decision was made in circumstances where there were financial pressures such to remove those who were under performing, and the claimant was one of those individuals. That is supported by the fact that Ms Mach was dismissed for the same reason at the same time.

[70]For all of those reasons, the complaint of direct disability discrimination fails. Fact finding and conclusions on remedy for unfair dismissal

[71]The respondent accepted that they did not follow a fair procedure in relation to the claimant's dismissal. His unfair dismissal complaint succeeds on that basis and the Tribunal went on to consider remedy.

[72]The respondent’s preliminary position was that had a fair process been carried out the claimant would have been dismissed at the same time in any event. As such, his compensatory award should be reduced to zero. They also pointed to the claimant’s final pay slip on page 163 of the bundle where the claimant’s final pay was processed. This included a payment of £5626.80 which appeared as a ‘redundancy’ payment on his wage slip. The respondent stated that although noted as redundancy, this was not a redundancy process and that payment should be treated as an ex-gratia payment, thereby reducing the basic award.

[73]The Tribunal queried which process the respondent says should have been followed; the Tribunal’s findings having been that the reason for the claimant’s dismissal was poor performance (capability) in circumstances where the respondent was under financial pressure. The respondent agreed that the correct procedure that should have been followed was one related to performance.

[74]The case of Allmakes Ltd v Boorman [1993]

UKEAT/695/92

is authority for the position that any redundancy payment that has been made to the employee must be deducted from the basic award first. If, on the other hand the tribunal finds that the real reason for dismissal was not redundancy, the claimant may be entitled to both payments.

[75]There was therefore some discussion between the parties and the Tribunal in relation to whether the basic award could be reduced as suggested by the respondent to reflect the payment already made to the claimant. The respondent was afforded some additional time to review their position on the same and having done so the respondent accepted that the tribunal has limited discretion in relation to a reduction of that basic award and they accepted Case Number: 3303031/2024 13 therefore that they owed a basic award in the sum of £5,382.84.

[76]The tribunal then went on to consider the compensatory award and the applicability of Polkey in relation to that. The respondent stated that whilst they did not carry out a fair process, had they done so, the claimant would have still been dismissed on 17 November 2023. They say that, as a result, any compensatory award should be reduced to nil.

[77]The claimant says that there should be no reduction to his award and, if there is, this should be as small as possible.

[78]Any Polkey reduction can take the form of a percentage reduction, or the tribunal can make a finding that the individual would have been dismissed fairly after a further period of employment. The circumstances of this case are such that we have approached it as a further period of employment.

[79]The reason for the dismissal was one of poor performance. That is said to be the primary reason and accepted by the tribunal in terms of its fact finding. We note that there were a number of one-to-ones and reviews between the claimant and the respondent. The last written review, however, was in February 2023. We can see that at page 121 and on our findings that did include criticism of performance in relation to carrying crates and being told not to do so.

[80]There are no other documented reviews between February and October 2023 when the decision to dismiss was taken but we accepted the evidence of Ms Kawalilo and Ms Cebula that informal processes were taking place. That being said, it was clear that the decision to dismiss for performance was triggered by the economic difficulties in October 2023. We consider that had a fair process taken place that also would have been the trigger date for the start of that process. In effect, that would have triggered the performance review in the context of those difficulties.

[81]The tribunal does consider that had a fair process taken place, a performance improvement plan would have been implemented by way of a fair process, which would have identified the areas of concern and given the claimant an opportunity to improve. The tribunal considers that the running of that performance improvement plan and a proper dismissal process would have taken a period of three months and, therefore, we conclude that the claimant would have remained in employment for a further three months from the date that the decision was taken to dismiss him in October 2023.

[82]We do not accept that the effective date of termination would have been the same because whilst we accept the oral evidence that there were performance issues, the trigger event was clearly the financial pressures such that the respondent had to look at cost savings which included review of underperforming staff. Therefore, the tribunal considers that had a fair process been followed; it would not have been started any sooner than that trigger event. The tribunal considers that the claimant’s performance would not have improved in this time owing to his ongoing health issues and as such he would have been dismissed at the end of that 3-month period. Case Number: 3303031/2024 14

[83]The respondent suggests that this would have been sooner because the claimant has since confirmed that he is unfit to work. The Tribunal notes however that the claimant has stated that his health deteriorated through the lack of work, in relation to his physical fitness, which we acknowledge, and we note that he could not name the specific date by which he became unfit altogether.

[84]The tribunal ultimately concludes that medical unfitness would not have arisen within that three-month period because we note that, at that time, the claimant was working full-time and a significant number of hours. In fact, he did work his six weeks’ notice period. As such we conclude he would have remained fit enough to work in that 3-month period, albeit his performance was unlikely to have improved.

[85]Turning to the figures, we take the respondent’s figure of £448.57 per week, as the claimant’s earnings because we consider this to be reflected in his pay slips that we have in the bundle at page 160 to 163.

[86]The claimant bases his schedule of loss on a different figure of £643.00 per week and then later refers to a monthly sum of £2,128.00. In querying how the claimant arose at those sums, his position was that the schedule of loss was drafted on his behalf by his niece. We therefore disregard those sums and have regard to the weekly pay as set out in the claimant’s pay slips.

[87]Therefore, taking that weekly sum of £448.57, if we times that by 12 weeks’ to represent the three month continued employment that we have concluded the claimant would have had if a fair process had taken place, that amounts to a compensatory award of £5,382.84.

[88]In respect of the payment of £5626.80 paid to the claimant in his final pay as outlined at page 163, we treat that as an ex-gratia payment. A claimant will normally be required to give credit for the ex gratia payment (see Digital Equipment Co Ltd v Clements (No 2)

[1998] IRLR 134

(CA)) and we consider that this would also apply in relation to a payment that was made by mistake Boorman v Allmakes

[1995] IRLR 553

[89]In any event s123 of the ERA 1996 provides that the compensatory award shall be: ‘…such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.’

[90]We consider that it is just and equitable to deduct that ex gratia payment because that payment was made to the claimant and goes towards the claimant’s losses. The ex-gratia payment is £5,626.80, which is more than the compensatory award we have made and has the effect of reducing that to nil. We note that in our calculation the difference would be £243.96, so in effect the claimant has received an additional sum in that amount. Case Number: 3303031/2024 15

[91]The claimant received state benefits in the relevant period, and the Tribunal went on to consider the Employment Protection (Recoupment of Benefits) Regulations 1996 in those circumstances. These provisions provide for the recovery of state benefits which have been paid to the claimant for the period for which he has also recovered a relevant monetary award.

[92]Regulation 3(1)(a) of Employment Protection (Recoupment of Benefits) Regulations 1996 takes the Tribunal to the schedule of the regulations, and we consider we are concerned with point 7 of that table in this case (it being an unfair dismissal complaint). Column 3 of that table says that the prescribed element is ‘Any amount ordered to be paid and calculated under section 123 in respect of compensation for loss of wages for a period before the conclusion of the tribunal proceedings.’

[93]Section 123 of the Employment Rights Act is concerned with the compensatory award. The compensatory award in this case is reduced to zero. Therefore, there is no award to which the Tribunal considers the recoupment provisions would apply to and our Judgment reflects the same by recording that they do not apply. Approved by: