The tale we are about to tell is really quite odd and so we thought it sensible to give you, the reader, a polite warning. To quote the classic line from Jurassic Park: “hold on to your butts”.

Background

Anita Jarzyna joined Hypnos Limited in 2015.

During her tenure, she fell out with her Manager, Mr Bowler, and his girlfriend, who also worked for Hypnos. Though as far as fallouts go, this one was fairly turbulent.

It was alleged that Ms. Jarzyna had attended a wine bar and gossiped about Mr Bowler and his partner, in front of colleagues. The allegations were that she had called them: “f**king p***” and “gypsy c***”.

When challenged about her behaviour, Ms. Jarzyna allegedly justified it by saying: “I can say what I like – I am Polish. It’s ok to say it in Poland so why is it not ok here?”.

Several, presumably horrified, witnesses and colleagues complained about the incidents to Hypnos who made the decision to suspend Ms. Jarzyna.

Indignant with her suspension, Ms. Jarzyna allegedly went around trying to find out who had ‘grassed’ her up.

Ms. Jarzyna was invited to a disciplinary hearing which discussed the issues with her. The hearing was adjourned for 15 minutes. Afterwards, the decision was made to dismiss Ms. Jarzyna.

Displeased with the decision, Ms. Jarzyna appealed but was denied the opportunity to do so.

The Tribunal decision

Ms. Jarzyna brought claims to the Tribunal for the following:

• unfair dismissal;
• race discrimination; and
• sex discrimination.

Despite serving and re-serving the papers on Hypnos, no response was sent to the Tribunal.

The Tribunal decided, given the claims being pursued, that it was not appropriate to issue a judgment.

Instead, the Tribunal invited the parties to a final hearing.

Whilst Ms. Jarzyna attended, Hypnos did not.

The Tribunal, therefore, only heard Ms. Jarzyna’s evidence and concluded the following:

• the claims for race and sex discrimination failed; and
• the claim for unfair dismissal was upheld.

You are reading that right.

Ms. Jarzyna succeeded in her claim for unfair dismissal!

In coming to this decision, the Tribunal had to weigh up the evidence it had before it. It determined that Ms. Jarzyna had used offensive and racist language, despite her denial that she had done so. However, as Hypnos had not attended and therefore not given any evidence, the Tribunal could not take any evidence they might have offered up into account and, consequently could not shift the burden of proof from them. Therefore, Ms. Jarzyna was awarded:

• £630 for her basic award; and
• £2,214.90 for her compensatory award.

Thoughts for employers

Don’t say we didn’t warn you. What a rollercoaster of a case.

There are, primarily, two main issues that Hypnos fell down on which could have easily been avoided:

1. Their deliberation time, i.e. taking 15 minutes to conclude that Ms. Jarzyna would be dismissed for gross misconduct. On one hand, it is arguably a short amount of time to come to such a severe outcome. However, had they attended the Tribunal, the individual making the decision may have been able to explain the rationale, for example the overwhelming amount of evidence. Therefore, whenever faced with tough decisions, ensure your managers are given time to properly and fully deliberate on the evidence before them, before coming to a decision.
   
   
2. The failure to respond or attend tribunal. If your organisation is offered the chance to respond to a claim, we would always recommend that you do. As we have seen in this case, had Hypnos offered up a response, they could have, potentially, easily defeated this claim.

For further assistance with any of the information contained within this article, please do not hesitate to contact the Bridge Employment Law team on 01904 949008, email us at enquires@bridgeehr.co.uk.