Claimant v Nexus Foods Limited

Claimant resigned on 31 July 2023 due to being forced to work excessive hours, which was a fundamental breach in response to which he resigned. However, the tribunal found the reason for the breach was Kajan's racial targeting of the claimant, not refusal to work excessive hours under s.101A ERA 1996. The summary dismissal on 5 August 2023 concerned refusal to do particular tasks, also not engaging s.101A. The claim therefore failed to meet the statutory test for automatic unfair dismissal.

The claimant was summarily dismissed on 5 August 2023 whilst serving notice that was due to run until 14 August 2023. He had a statutory right to one week's notice which was not paid. The respondent did not assert the claimant had done anything entitling it to dismiss without notice. The claimant was therefore wrongfully dismissed and entitled to one week's pay in lieu of notice.

The tribunal found that on 21 March 2023 the manager Kajan refused the claimant's holiday request because he was Indian and Kajan wished to prioritise Sri Lankan Tamil colleagues. Kajan also referred to the claimant as 'this shit' and 'this slave' which was self-evidently less favourable treatment because of race. Kajan was acting in the course of employment. The respondent's reasonable steps defence failed due to lack of evidence of any preventative measures taken. Time limits were met as the acts formed part of continuing discrimination.

The tribunal found multiple acts of harassment: (1) Kajan used derogatory language about Indians and the claimant specifically to colleagues on multiple occasions in March, July and August 2023, which was overheard or recorded and provided to the claimant; (2) Kajan forced the claimant to work excessive hours from February-July 2023 due to racial prejudice; (3) The constructive dismissal itself was harassment as it related to the claimant's race (being the reason for excessive hours); (4) Kajan racially abused the claimant in a phone call on 1 August 2023. All acts were unwanted conduct relating to race with the purpose and effect of violating dignity and creating a hostile environment.

The tribunal found that after the claimant raised a grievance on 5 August 2023 (a protected act), the Area Coach Mr Smith's email of 7 August 2023 was terse, bordering on hostile, dismissive of concerns, and threatened possible disciplinary action. This was detrimental treatment because the claimant had made allegations of discrimination. This complaint succeeded. However, the failure to properly investigate or provide outcomes to grievances was found to display lack of care rather than malicious reaction to protected acts, so those aspects of the victimisation claim failed.

The respondent conceded in closing submissions that the claimant was underpaid his holiday pay. The complaint therefore succeeded, with the sum to be quantified at the remedy stage.

The claimant was not provided with a copy of his written particulars of employment when he signed them or until disclosure in proceedings. The contract produced did not meet statutory requirements as it was missing key information including normal hours of work and rate of pay. The respondent was in breach of its duty under s.1(1) ERA 1996 at the time the claim commenced, entitling the claimant to an award under s.38 Employment Act 2002.