“Foreigner’s can’t lead Brits” – Romanian joiner granted leave to appeal against ET decision which made “a howling omission”

Romanian joiner, Ionel Ion, won the right to appeal against an unfavourable Employment Tribunal (ET) decision which found that his former employer, Citu, had not acted in a manner which was discriminatory on grounds of nationality nor dismissed Mr Ion unfairly.

The matter was referred to the Employment Appeal Tribunal who identified that the ET had made  a “howling omission and an error of law” when rendering its judgment.

The Employment Tribunal Claim

Mr Ion made several complaints to his employer which included, amongst other things, that he was told by his boss that a foreigner could not lead British workers. Soon after, Mr Ion was sacked and he concluded this was because of his nationality. Mr Ion brought claims of nationality discrimination and unfair dismissal.

Scrambling for a reason to show fair dismissal, Citu put forward its defence stating that Mr Ion was selected for redundancy (one of the fair reasons) due to his alleged “lack of compliance with the stated company values”, namely teamwork.

It should be mentioned that Mr Ion did make protected disclosures regarding Citu’s unsafe working practices because, during witness evidence, one of the managers explained the justification for Mr Ion’s dismissal was due to him being  he was “disruptive on site”, as opposed to being non-compliant with company values, in this case teamwork.  This seems bizarre since surely identifying and reporting unsafe and working conditions with a view to rectifying them amounted to teamwork?

However, the ET disregarded the possibility of a sham redundancy and stated that it was “perfectly satisfied” with the Citu’s evidence. Mr Ion’s claims were dismissed.

Appeal Hearing

In applying for leave to appeal, Mr Ion’s barrister pointed out that the manager who selected his client for redundancy was the same manager who told him that a foreigner could not lead a team of Brits.

The appellate judge, after hearing the evidence, found that the ET judge’s ruling was “hopeless” as it failed to apply the test as to whether or not an “appropriate hypothetical comparator”, for example a British joiner, would have been treated the same way as Mr Ion had in a similar situation.

The EAT considered the ET judge’s failure to consider this point resulted in a “howling omission and an error of law”. It also failed to:

Analyse if the manager was “consciously or unconsciously biased by the claimant’s nationality”;

Move the burden of proof on to Citu after finding the manager’s “foreigner” comment proved;

Properly consider if Mr Ion was a whistleblower;

Assess if there was a “genuine redundancy” drive at the company as Mr Ion claimed the company was advertising for joiners at the same time as he was being dismissed; and

Look at whether the tribunal’s translation services were adequate and the impact on Mr Ion having a fair trial.

A date for the appeal is yet to be set.

If you have been subject to similar treatment like Mr Ion and need assistance or, if you are an employer, who has received a grievance or know legal proceedings are being brought against you or, indeed, if you need general employment advice: SMB are happy to help.

Contact me at joe.hennessy@smb.london for further information.