Having considered a discriminatory constructive dismissal claim, the Employment Appeal Tribunal (EAT) has held in Wytrzyszczewski v British Airways Plc (BA) that the tribunal could not conclude that the claimant’s compensation would have been reduced by 100 per cent. This was because it had failed to consider whether the company’s failure to investigate his grievance was, itself, discriminatory.
Mr Wytrzyszczewski started working for BA as a cabin crew member on 24 July 2017. At a meeting in February 2018, he was told that his probation was to be extended by three months because he had not met “expected standards”. He believed, however, that the decision was prompted by a number of health and safety disclosures he had made. That being so, he objected to the decision in an “extraordinary series of emails” that he sent to various parties late in the evening, including the BA chief executive.
Following a meeting on 5 March to review his ongoing probation, he complained that a manager made a xenophobic comment about his Eastern European heritage. This was treated as a grievance by BA but prior to it being heard, Mr Wytrzyszczewski received an email on 24 March from another manager telling him that it was inappropriate for him “to continually harass” senior managers. This “threatening” email was the last straw for Mr Wytrzyszczewski, and he resigned on 2 April 2018.
Mr Wytrzyszczewski lodged a number of tribunal claims including one for discriminatory constructive dismissal as a result of the remark made at the meeting on 5 March and the company’s failure to investigate it. When considered as a “sequence of events … as an accumulation”, he argued that it amounted to a breach of the implied term of trust and confidence.
Dismissing his claim, the tribunal held that the manager’s reference to his “Eastern European culture” represented an inoffensive attempt to “soften the impact” of the criticism that he was a blunt communicator and that it was not an act of direct race discrimination. It further concluded that this part of his claim had been presented outside the applicable statutory time limit and that it would not be just and equitable to extend time. In dismissing the claims, however, the tribunal did not consider whether BA’s failure to investigate Mr Wytrzyszczewski’s grievance itself amounted to an act of discrimination.
Separately, the tribunal concluded that Mr Wytrzyszczewski would have been dismissed at the end of his probationary period, had he not resigned. On this basis, it said that it would, in any event, have reduced compensation by 100 per cent under what is known as the Polkey rule, even if his claim had been successful.
Mr Wytrzyszczewski appealed on two grounds. Firstly, he argued that the tribunal had not considered an aspect of his discrimination claim, namely that the company had failed to investigate his grievance because of his national origin; and secondly, that the tribunal had failed to give reasons for its decision as to why his employment would have terminated at the end of his probation period.
Allowing the appeal, the EAT held with regard to the first ground, that the tribunal had overlooked whether the company’s failure to investigate Mr Wytrzyszczewski’s grievance because of his national origin was discriminatory. It found this was a significant oversight because, although it could be argued that BA would have come to the same conclusion as the tribunal (that the comment was inoffensive), this did not address the issue of whether there was a failure to investigate because of Mr Wytrzyszczewski’s national origin.
With regard to the second ground, as the tribunal had not made any findings on whether the company’s failure to investigate was discriminatory, the EAT held that it could not safely assume there was a 100 per cent chance that Mr Wytrzyszczewski would have been dismissed for non-discriminatory reasons at the end of his probationary period.
The EAT remitted both matters to the same tribunal for reconsideration.
The appeal succeeded in part because the tribunal had overlooked an individual aspect of Mr Wytrzyszczewski’s claim, namely that the company’s failure to investigate his grievance was itself discriminatory. It’s unlikely the tribunal deliberately ignored this aspect of his claim, what’s more likely is that it mistakenly failed to identify this individual aspect against the backdrop of what was a complex set of facts.