Good morning and welcome back to your weekly case law update. Last week we looked at Employment Status. This week we delve into a case involving racial discrimination, unfair dismissal and failure to provide statement of employment particulars.
The questions this week are:
- Does the phrase “fuck off back to Poland” amount to race discrimination?
- When does the obligation to provide section one particulars arise?
The Claimants in this case were waiting staff at a hotel. The employees were engaged by the hotel from various dates from 21 April 2016 onwards. All were Polish. None of the employees received a section one statement of particulars of employment. The employees were provided with accommodation at the hotel as part of their remuneration package.
The employees raised issues about their pay shortly after the referendum in June 2016. All who raised an issue were summarily dismissed, without following any procedure but with the rhetorical flourish “You can fuck off back to Poland.” Because the employees had not only lost their job but also their accommodation they followed their employer’s instruction. They packed their bags, got in their car, drove to the ferry at Dover and then back to Poland by road.
Surprisingly the Employment Tribunal did not find that comment to be discriminatory on the basis that the Hotel management were prone to swearing and that a similar term would have been used about a UK employee. They did find that the employees were automatically unfairly dismissed for raising an issue about deductions from their pay and therefore were dismissed for automatically asserting a statutory right.
The EAT disagreed with the Tribunal about finding no discrimination. The EAT found that the Tribunal had not applied the burden of proof. The EAT was persuaded that the more specific the words, “back to Poland,” the more likely those words were used because of nationality and therefore amounted to discrimination. It was entirely possible to be dismissed for asserting a statutory right but also for that dismissal to be racially discriminatory on grounds of nationality by the manner of dismissal. The EAT remitted the case back to a fresh Employment Tribunal to consider the issue of whether the words were discriminatory.
The second issue related to provision of section one statement of terms and conditions. The law is changing next year so that the particulars have to be supplied on or before day one. The law as it stands and as it stood for the Claimants is that particulars have to be provided within one month of the commencement date of employment. If not provided within one month the employer has a further month to supply them.
The Employment Tribunal found that one employee was dismissed within her second month. Because part of her claim succeeded, the automatic unfair dismissal, the Employment Tribunal had to consider whether the employee was entitled to a 2 or 4 week award for failing to provide employment particulars. The Tribunal erred. They found because the employee was in her second month she was not entitled to employment particulars. The EAT disagreed. The EAT found that the right crystallised after one month and that the employee was entitled to section one particulars. A failure by the employer to provide those particulars entitled the employee to an award of 2 weeks to 4 weeks pay. The issue was remitted back to a fresh Tribunal to make a decision as to whether the award should be 2 weeks or 4 weeks.
So the answers to this week’s questions are:
Yes the phrase “fuck off back to Poland” is sufficiently precise and specific to amount potentially to race discrimination. The context of the comment appeared in the EAT’s judgment, namely the Claimant’s were dismissed on 7 July 2016, and that the comment was made at the dismissal meeting, which happened shortly after the EU referendum.
An employee whose contract is terminated after one month’s service but before two month’s service is entitled to a section one statement of particulars of employment.