Stefanko & Ors v Maritime Hotel Ltd & Anor

An employee who completes at least one month’s service remains entitled to a written statement of employment particulars even if employment ends during the second month. The two-month period in section 1(2) of the Employment Rights Act 1996 is time allowed for performance, not a condition that employment must subsist for two months.

Where findings record overtly race-related conduct in connection with dismissal, the tribunal must address that evidence, apply the statutory burden of proof and give adequate reasons for rejecting direct discrimination. The complaint includes both the fact and the manner of dismissal where the pleaded case so alleges.

Three Polish waiting staff appealed parts of an Employment Tribunal decision. Their employer had summarily dismissed them after complaints about wages and payslips. The Tribunal upheld several wage and statutory-right claims, but dismissed the second claimant’s claim for written particulars and all three claimants’ direct race discrimination complaints concerning dismissal.

The second claimant had worked for six weeks and received no written statement. The Tribunal considered that she had no entitlement because her employment ended before two months. The claimants also relied on findings that their manager swore at them, told one to return to Poland and mimicked another’s Polish accent. The central issues were whether the written-particulars entitlement survived termination in the second month, and whether the Tribunal had lawfully assessed direct race discrimination in the fact and manner of dismissal.

1. Appeal allowed in part. The Tribunal erred in holding that the second claimant lacked an entitlement to a written statement of particulars. Sections 1, 2 and 198 of the Employment Rights Act 1996 create a time-served right for an employee who has completed one month’s service. Section 2(6) expressly preserves the obligation where employment ends before expiry of the period allowed for providing the statement. The two-month provision in section 1(2) gives the employer time to comply; it does not remove the entitlement where employment ends in the second month.

2. The finding dismissing the second claimant’s section 1 claim was set aside and replaced by a declaration of breach. Since other tribunal claims had succeeded, compensation under section 38 of the Employment Act 2002 fell to be considered. The matter was remitted to determine the claimant’s week’s pay and whether two or four weeks’ pay should be awarded, including whether exceptional circumstances applied.

3. The Tribunal also erred in dismissing direct race discrimination. Its findings included conduct apparently related to race, including an instruction to return to Poland and mimicking a Polish accent. It nevertheless failed to address the burden of proof under section 136 of the Equality Act 2010, to make findings on material allegations, or to explain why race played no part in the dismissal.

4. The pleaded complaint concerned both the fact and the manner of dismissal. A finding that the dismissal was for assertion of statutory rights did not, without adequate explanation, dispose of the allegation that its manner was discriminatory. The direct discrimination claims were remitted for a fresh hearing before a differently constituted Tribunal.

5. Permission was refused for a new effective-remedy ground raised outside the appeal grounds. The absent respondents had not been put on notice, and the proposed argument raised potentially wide issues of privity and insolvency law.

• Employment Appeal Tribunal: Appeal allowed in part. The dismissal of the second claimant’s written-particulars claim was set aside and the direct race discrimination claims were remitted to a fresh Tribunal.
• Employment Tribunal: Following hearings in June and July 2017, the Tribunal upheld claims for wages, holiday pay and automatic unfair dismissal for asserting a statutory right. It made section 38 awards to the first and third claimants, but dismissed the second claimant’s written-particulars claim and the direct race discrimination complaints.