Background:

The claimant was employed by the respondent as a member of its cabin crew for a period of eight months.  He brought a range of claims relating to what he termed as multiple health and safety concerns where no action had been taken, xenophobic comments and harassment.  This also included sex discrimination and harassment. This, in totality, led to a claim for constructive dismissal.

The beginning of the process can be taken to a meeting in March 2018.  The context is that the claimant had been informed that he was not meeting the requisite standards with his probation being extended.  The claimant felt this was linked to his disclosures regarding health and safety.  The claimant had then been ‘de-rostered’/suspended amidst concerns about his mental wellbeing.  The claimant alleged that at this meeting his ‘European heritage’ was noted but there was an emphasis on British in British Airways. The note of the meeting did state about how in Eastern European culture there could be directness in communication and that the claimant may want to be aware of that.  The claimant complained of this and it was treated as a grievance.  During the grievance process the claimant was emailed telling him it was inappropriate for him to continually harass senior managers via email (including the Chief Executive).  The claimant relied upon this as the ‘last straw’ leading to his resignation.

Outcome:

The claims were dismissed at first instance and the claimant appealed. The EAT found that the Tribunal had not properly adjudicated on the claimant’s claim relating to the comment made relating to his European heritage.   The case had to be remitted to ensure that the Tribunal can make findings of fact about the steps taken to investigate the complaint about what was said and its content.  This would then lead into whether the approach taken by the respondent was influenced by his national origin and if it was then whether that would amount to repudiatory breach. The EAT acknowledged that this is a narrow ground of appeal that has been allowed and it is narrow ground on which the remittal is based.

The EAT also allowed an appeal relating to the points made on remedy by the Tribunal.  The Tribunal stated that the claimant would have lost his job anyway at the end of the probation period and came across as a 100% Polkey type reduction.   The EAT outlined that the situations in which Polkey will reduce compensation to zero in discrimination cases is very rare.  The Tribunal had also not referred to any evidence in relation to the situation had the claimant not resigned.  As a result, this aspect of the appeal was successful albeit with the EAT stating that as the claimant had quickly got a new higher paying job that it may be best to negotiate rather than incur the costs of another hearing.

Practical Guidance for Employers:

The practical, rather than legal, guidance given by the EAT is interesting when they state that there should be some negotiation rather than incurring the cost of another hearing.  Whether such advice is heeded, time will tell. In terms of the points relating to race discrimination it is clear that where such a statement is made then the full ramification and impact that it had on the treatment of the claimant would need to be fully examined both by the employer but also by the Tribunal in making their decision.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-b-wytrzysckzewski-v-british-airways-plc-2023-eat-7