Stefanko v Doherty and Maritime Hotel Ltd [2019] IRLR 322 (EAT) is a UK labour law case concerning unfair dismissal and discrimination.

Two weeks after the Brexit poll, Woronowicz asked for her wages to be paid correctly and a manager, Mr Nicholas Doherty, told her “Fuck off from my hotel and take your Polish friends with you”.

There was no explanation from the Second Respondent as to why he is not here today, in his written answer to the appeal he seeks to uphold the Tribunal's decision and explains that he is not a racist by any means having employed many ethnic minorities over the years.

I am especially grateful to Dr McGaughey who has provided his services to the Claimants pro bono under the Free Representation Unit scheme.

In considering an appeal of this nature, it is important to be clear of the distinction between an error of law and facts found by a Tribunal that it has been entitled to reach.

I agree with Dr McGaughey's submission that when, as here, there are specific findings that comments have been made which appear on their face to be related to race and amount to less favourable treatment such as mimicking one Claimant's Polish accent and telling another to "Fuck off back to Poland" the Tribunal needed to have explained its reasoning as to how it applied the burden of proof and reached the conclusion that the dismissal had nothing whatsoever to do with race discrimination.

The difficulty is compounded by the Tribunal not having referred at all to the burden of proof provisions in its Decision or answered the questions it posed itself in paragraph 3 of its Judgment.

It is therefore difficult to see how the Tribunal could conclude, as it did in paragraph 24, that "We have to say that we have received no evidence to suggest that the hypothetical comparator in similar circumstances … would have been treated [differently]".

Hale LJ's (as she then was) observations on the "Porcelli principle" and the useful rule of thumb that the more specific the insult and the injury by reference to a protected characteristic, the more persuasive must be the proof that the behaviour was completely unrelated to a protected characteristic in Pearce v Governing Body of Mayfield Secondary School [2001] EWCA Civ 1347 are apt in this regard.