M Jarosinski v Nestle UK Ltd

Where claims raise common or related issues of fact or law, an Employment Tribunal may allow them to be defended in a single response form under Rule 16(3), whether or not they are formally consolidated. A claimant who participates in the proceedings without timely objection may waive a complaint about the response or be estopped from raising it where the respondent relied on that conduct and would suffer detriment. A tribunal deciding reconsideration need not address an issue absent from the application and the original decision, particularly where the remittal limits what it may consider. For unfair dismissal compensation, 100% reductions for contributory conduct and under the Polkey principle may be lawful if the tribunal's reasons, read as a whole, establish their separate bases. Similar reductions may be made to basic and compensatory awards where there is no material divergence, and distinct bases for contributory conduct and the fair-procedure counterfactual do not amount to double counting.

Michal Jarosinski worked for Nestle UK Ltd until his dismissal in December 2020. He brought a race discrimination claim in 2020 and a second claim in February 2021, which included unfair dismissal and other complaints. The Employment Tribunal ordered a joint hearing and the respondent filed one amended response covering both claims. After a nine-day hearing, the Tribunal found the dismissal procedurally unfair but made no basic or compensatory award, finding both 100% contributory conduct and a 100% chance of dismissal following a fair procedure.

These appeals concerned the Tribunal's refusal to reconsider its decision, including whether it should have addressed the absence of a separate ET3 for the second claim, and whether the Tribunal had adequately explained the 100% reductions. The reconsideration decision was made after the Employment Appeal Tribunal remitted the application to a different Employment Judge, with directions limiting consideration to material before the original application.

1. Response to the second claim. Rule 16(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 permitted a single response where claims raised common or related issues of fact or law, or where a single response was otherwise reasonable. The case-management order was properly construed as permitting both claims to be defended in a compendious response. It did not dispense with the need for a response, and formal consolidation was not necessary. The respondent's response therefore complied with Rule 16(3) and there was no breach.

   Alternatively, the appellant made no timely objection, participated in preparation and trial, and allowed the respondent to incur the cost of defending both claims. In those circumstances he had waived any right to complain and was estopped by his conduct, given the respondent's reliance and detriment. Even if a strike-out application had succeeded, default judgment would not have followed automatically; the Tribunal would have had to proceed under Rule 21(2) and (3).

2. Reconsideration and case management. The reconsideration application did not raise the validity of the response, and that issue had not formed part of the Tribunal's decision. The later strike-out application was not before the Employment Judge considering the remitted application, and the remittal order expressly excluded later correspondence. There was no error of law in failing to address the response issue. The Regional Employment Judge was also entitled to postpone the overlapping strike-out application pending the Rule 3(10) determination.

3. Contributory conduct and the awards. Applying Nelson v BBC (No.2) [1979] IRLR 346 and Steen v ASP Packaging UKEAT/23/13, the Tribunal had identified culpable and blameworthy conduct, found that it caused the dismissal, and explained why a 100% reduction was just and equitable. Its findings were set out across the judgment and were not confined to the short concluding paragraphs. Section 122(2) of the Employment Rights Act 1996 required separate consideration of the basic award, but similar reductions to basic and compensatory awards are usual; a detailed explanation of different percentages is ordinarily needed only if they diverge. The Tribunal had considered both awards and its reasons disclosed no error.

4. Polkey and double counting. The Tribunal asked the correct counterfactual question: whether dismissal would still have occurred had a fair procedure been followed. It was entitled to find, on the evidence of the appellant's conduct and continuing views, that he would not have acted differently and the outcome would have been dismissal. That did not double count his conduct: the contributory reduction addressed the conduct that caused the dismissal, while the Polkey reduction addressed the result of a fair procedure. Both appeals failed on the permitted grounds and were dismissed.

1. Employment Appeal Tribunal (present appeals). The EAT dismissed the permitted grounds in the 2022 appeal concerning the 100% contributory and Polkey reductions, and in the 2024 appeal concerning reconsideration and the second claim's response. Judgment: [2026] EAT 129 .
2. Employment Appeal Tribunal. On 24 October 2023, HHJ Keith allowed the appeal and conditional cross-appeal concerning the initial refusal of reconsideration and remitted the application to a different Employment Judge. The remittal order directed that post-application correspondence was not to be considered.
3. Employment Tribunal. The Tribunal's decision, sent on 5 January 2022, found procedural unfair dismissal but made no basic or compensatory award. On remission, EJ Hutchinson dismissed the reconsideration application in a decision sent on 21 March 2024. The present appeals challenged the remedy findings and the reconsideration decision.