Was the tribunal wrong to make no compensatory or basic award in a claim for unfair dismissal?

By Samuel Langi, Employment Rights Lawyer

Please note: this summary focuses on the second appeal in Jarosinski v Nestlé UK Ltd [2026] EAT 129, concerning the Employment Tribunal's findings of 100% contributory fault and a 100% Polkey deduction. This part of the judgment is covered at pages 20-34 of the EAT decision. 

Background

Michal Jarosinski had worked for Nestlé UK Ltd since 2009 and was employed as a Quality Assurance Technician when his employment was terminated in December 2020. He brought claims including unfair dismissal, and the Employment Tribunal held that while the dismissal was procedurally unfair because a fair process had not been followed, there had been a fundamental and irretrievable breakdown in the employment relationship.

The tribunal found that over a prolonged period Mr Jarosinski had repeatedly challenged management decisions, made serious allegations against managers, and refused to move beyond workplace disputes despite attempts by the employer to repair relationships. 

The tribunal concluded that Mr Jarosinski's conduct had directly contributed to his dismissal and that there was a 100% chance he would have been dismissed even if a fair procedure had been followed. As a result, although unfair dismissal was established, the tribunal reduced both the compensatory and basic awards by 100% and applied a 100% Polkey deduction, leaving him with no compensation.

Mr Jarosinski appealed to the Employment Appeal Tribunal (EAT), arguing that the tribunal had failed to adequately explain why his compensation should be reduced to nil and why it considered dismissal inevitable despite identifying procedural failings by the employer.

Outcome

The EAT dismissed the appeal and upheld the tribunal's findings. It held that when the tribunal's decision was read as a whole, it gave sufficient reasons for concluding that Mr Jarosinski's conduct was entirely responsible for the breakdown in workplace relationships and therefore justified a 100% reduction for contributory fault. The EAT found that the tribunal had correctly identified conduct it considered blameworthy, explained how that conduct led to dismissal, and was entitled to conclude that a complete reduction in compensation was just and equitable in the circumstances.

The EAT also upheld the 100% Polkey deduction. It accepted the tribunal's finding that, even if a fair disciplinary process had been followed, the outcome would have been the same. The tribunal had found that Mr Jarosinski remained steadfast in his views about his managers throughout the dispute and continued to express those views during the tribunal proceedings. It was therefore entitled to conclude that he would not have changed his position had he been given a further opportunity to make representations before dismissal.

Importantly, the EAT rejected the argument that the tribunal had "double counted" the same conduct when applying both contributory fault and Polkey deductions. It held that the two findings addressed different legal questions: one concerned responsibility for the dismissal, while the other considered whether a fair process would have altered the outcome. 

Comments / Key takeaways

This decision is a significant reminder that establishing unfair dismissal does not guarantee compensation. Tribunals can reduce awards to nil where they conclude that an employee's own conduct was wholly responsible for the circumstances leading to dismissal and where the employee would have been dismissed even if a fair procedure had been followed.

The case will be of particular interest to trade unions and workplace representatives dealing with relationship breakdown cases. While unions are rightly focused on ensuring employers follow fair procedures, this judgment demonstrates that procedural failings may provide little practical benefit where a tribunal concludes that the employment relationship has irretrievably broken down and dismissal was ultimately unavoidable. 

For representatives, the decision highlights the importance of addressing workplace conflicts at an early stage and encouraging meaningful engagement with grievance, mediation and workplace resolution processes. Where positions become entrenched and relationships deteriorate beyond repair, tribunals may be prepared to find that dismissal would have occurred regardless of procedural shortcomings.

The judgment also provides useful guidance on the circumstances in which tribunals can make both a 100% contributory fault finding and a 100% Polkey deduction. Although such outcomes will remain relatively uncommon, the EAT confirmed that they are permissible where the tribunal clearly explains why the employee's conduct caused the dismissal and why a fair process would not have changed the result.

Jarosinski v Nestlé UK Ltd [2026] EAT 129