Hello again and welcome back to another case of the week.  For those who missed last week’s case on disability discrimination and whistleblowing can click here. This week, we look at the case of Atif v Dolce & Gabbana UK Ltd regarding a claim of race discrimination.

The Claimant, Ms Atif worked at the well-known Italian fashion brand, Dolce & Gabbana UK Ltd as a client advisor from 2013 until her dismissal in March 2020.  The Claimant was dismissed for abusing the Respondent’s sickness absence policy.  However, the Claimant felt that her dismissal amounted to race discrimination.

The Claimant described the structure of Dolce & Gabbana as ‘unprofessional’ and ‘incompetent’.  According to her Witness Statement, workers that weren’t Italian were completely ‘ignored and rejected’.

The Claimant herself was a non-Italian Arabic speaker who did not get along with her immediate manager, who happened to be Italian. Ms Atif returned to work, upon which she complained to the deputy store manager about her immediate manager’s treatment towards her. The deputy store manager requested that the Claimant’s sick absences be investigated. Following the Claimant’s investigation meeting she was dismissed.

The Respondent had suspected the Claimant might be abusing the scheme prior to her dismissal.  Ms Atif was found to have asked her manager on two separate occasions about the number of sick days she had left.  Further, when Ms Atif was denied certain days off as holiday due to the change of rota preventing her from having those days off, she was found to have called in sick on those days.

The Respondents concluded upon their investigation of the Claimant’s absences, that she had abused the sickness absence policy which amounted to gross misconduct.

The Claimant claimed that because of her nationality, she was ‘investigated, disciplined and dismissed and her grievance not properly considered because of her race’.

The Employment Tribunal (ET) dismissed the claim.

The Claimant then appealed the decision to the Employment Appeal Tribunal (EAT) on the basis that the ET had failed to apply S136 of the Equality Act (EqA) 2010 to her discrimination claim which shifts the burden of proof.

The EAT had to determine whether there was an error of law by the Tribunal in applying the test to the race discrimination claim.

In their findings, the EAT confirmed that S136 EqA 2010 should have been applied and that the burden of proof did shift to the employer.  The EAT then had to consider whether the Respondents had shown that they didn’t discriminate against the Claimant.  The EAT confirmed that the ET had given ‘detailed consideration to each of those facts’ and even though the route taken by the ET was ‘not ideal’, the Tribunal were entitled to their decision because had the Tribunal considered S136 EqA 2010, they would have reached the same decision.  Accordingly, the appeal was dismissed.

Takeaway Points

Employers should be aware that if they are involved in a discrimination claim, the Tribunal may consider a two-part test according to S136 EqA 2010.  The first stage is for the Claimant to prove to the Tribunal that the facts gave rise to differential treatment.  Once this has been established, the burden of proof then shifts to the employer to prove that the treatment in question was unrelated to the employee’s protected characteristics.  In this case, the employer would have to prove that their dismissal was not due to the Claimant’s race but rather due to her abusing the company’s sickness absence policy and that amounted to gross misconduct. The reason why the burden shifts is that it is recognised that there is very rarely direct evidence of discrimination. Inferences can be drawn at the second stage if the explanation given is unsatisfactory. Here the explanation was satisfactory as the Claimant’s conduct was unrelated to her race as was the Respondent’s dismissal for that conduct.

If you, or someone you know is dealing with a similar issue, please contact us for further assistance.