Background
Michal Jarosinski worked for Nestle UK Ltd from April 2009 until his summary dismissal in December 2020, most recently as a Quality Assurance Technician. He brought two Employment Tribunal claims: a 2020 race-discrimination claim and a 2021 claim including unfair dismissal, race discrimination and payment claims. The claims were heard together after Nestle filed consolidated grounds of resistance pursuant to a case-management order.
The Employment Tribunal dismissed the discrimination claims but found the dismissal procedurally unfair because Jarosinski had not been told in advance that dismissal was under consideration or given a proper opportunity to prepare. It nevertheless awarded no compensation, finding both that his blameworthy conduct contributed 100% to the dismissal and that there was a 100% chance he would have been dismissed had a fair procedure been followed. After extensive reconsideration and appellate proceedings, Jarosinski challenged Nestle’s failure to file a separate ET3 response for the second claim, the handling of his strike-out application, and the complete reductions to his basic and compensatory awards.
The Court’s Holding
The Employment Appeal Tribunal dismissed all permitted grounds of appeal. It construed the case-management order as authorizing one compendious response covering both claims under Rule 16(3) of the Employment Tribunal Rules 2013. Nestle’s response to the second claim was therefore valid. Alternatively, Jarosinski had waived any objection, and was estopped from raising it, by proceeding through case preparation and a lengthy merits hearing without challenging the response. The reconsideration judge was not required to address an issue absent from the original reconsideration application, particularly where the remittal order prohibited consideration of later correspondence. The decision to postpone the separate strike-out application also disclosed no error of law.
Reading the Employment Tribunal’s reasons as a whole, the EAT held that it had adequately identified Jarosinski’s culpable conduct, found that conduct caused the dismissal, and justified reducing both the basic and compensatory awards by 100%. The separate 100% Polkey reduction was also lawful: the Tribunal was entitled to find that Jarosinski’s entrenched and hostile views toward his managers would not have changed at a properly conducted dismissal meeting, so a fair procedure would still have produced dismissal. This did not double-count the contributory misconduct because the two reductions addressed distinct questions.
Key Takeaways
- A single response may cover related Employment Tribunal claims when authorized under Rule 16(3); a separate ET3 is not invariably required for each claim.
- A party who proceeds through a full merits hearing without objecting to an alleged procedural defect may waive the objection or be estopped from relying on it later.
- An Employment Tribunal may reduce both basic and compensatory awards to zero for contributory fault and also apply a 100% Polkey reduction, provided its reasons, read as a whole, support each distinct conclusion without double counting.
Why It Matters
The decision emphasizes substance, timely objections and finality in Employment Tribunal litigation. A claimant cannot ordinarily obtain a retrospective default victory on a response-form objection after both parties have fully prepared and tried the claims on their merits.
It also confirms that complete contributory-fault and Polkey reductions, though exceptional, are permissible where the Tribunal’s findings adequately explain both why the claimant was wholly responsible for the circumstances leading to dismissal and why a procedurally fair process would inevitably have produced the same result.