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The Claimant worked for Dolce & Gabbana UK Limited (the Respondent), an Italian fashion house/brand, as a client advisor at their Harrods concession from 2013 until her dismissal on 10 March 2020.  The Claimant is Algerian and speaks Arabic.

During the Claimant’s employment, she used her full sick leave entitlement every year. There was concern that she was effectively using sick leave as an extension of holiday entitlement. On one occasion, the Claimant had asked about her annual sick day entitlement and took time off as sick on dates which had been refused as holiday. The Claimant was dismissed for systematically abusing the Respondent’s sickness absence policy.

The Claimant brought claims of unfair dismissal and race discrimination. The Claimant stated that she was treated differently than her Italian colleagues in terms of her dismissal and a grievance she had raised, which was not concluded.

The Claimant’s claims were rejected at the Employment Tribunal.

The Tribunal stated that the Claimant had not shown facts that raised an assumption of discrimination. Therefore, the burden of proof had not shifted to the Respondent. The Tribunal further stated that the hypothetical comparator was not in materially similar circumstances when, by definition, the circumstances of the hypothetical comparator would be materially the same, except for the protective characteristic of race.

The Claimant appealed the Employment Tribunal’s decision to the Employment Appeal Tribunal (the EAT).

The EAT held that the Claimant had raised facts which could amount to discrimination due to the following reasons:

  • The Respondent’s management team were all Italian;
  • The Claimant’s grievance was not concluded;
  • The disciplinary proceedings started just after the Claimant had complained about her manager;
  • The Claimant’s Italian manager had also taken sick days around other absences;

This supported the Claimant’s argument that the burden of proof had shifted onto the Respondent to demonstrate that there had not been any discrimination.

However, the EAT nevertheless rejected the Claimant’s appeal. Whilst there was an error in the Tribunal’s reasoning, the EAT found that the relevant facts had been considered in detail and the Tribunal’s ultimate finding that there was no discrimination was not a perverse finding.

Employers facing litigation should consider the burden of proof rule and how the burden of proof can shift onto them in discrimination claims. Employers should be prepared to evidence that a particular course of action was not discriminatory, in case of challenge.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.


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