For any help or guidance about dealing with discrimination claims, please do not hesitate to call us on 01332 226 126 or fill in the form below.
30 April 2024
Case Study
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.
Case Study
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:
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.
Related Services
The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
Read More
The Employment Appeal Tribunal has clarified when employers may be deemed to have knowledge of an employee's disability.
Read More
Download our probationary period resource pack to help prepare for the Employment Rights Act changes from January 2027.
Read More
An employer's failure to involve an employee in an investigation led to findings of disability discrimination and compensation.
Read More
The EAT highlights the limits of protected conversations and the risks employers face when discussions are handled incorrectly.
Read More
Employer ordered to pay over £264,000 after a reference referring to an ongoing dispute was found to amount to victimisation.
Read More
Download expert guidance on UK trade union reforms and prepare your organisation for Employment Rights Act changes.
Read More
EAT confirms endometriosis can be a disability and examines reasonable adjustments, dismissal risks and performance management issues for employers.
Read More
EAT confirms withdrawing a conditional job offer can breach contract with employers understanding when an offer is binding and notice applies.
Read More
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
Read More
EAT confirms dismissal must be based on the employer’s actual reason, not a substitute. Incorrect reasoning can make dismissal unfair.
Read More
EAT finds dismissal unfair in Milrine v DHL (2026). Key lessons for employers on appeal processes and reducing tribunal risk.
Read More