In this case the EAT upheld an employment tribunal's decision to reject a race discrimination claim despite finding that the tribunal had made an error in deciding that the burden of proof did not shift to the employer.
The Facts
The claimant, Mrs Atif, worked as a client advisor at Dolce & Gabbana's (D&G) Harrods concession from 2013 until her dismissal on 10 March 2020. She is Algerian origin and speaks Arabic. She was dismissed following an investigation for abusing the sickness absence policy which D&G considered to be excessive and dishonest. This included using her full sickness absence entitlement every year, having a pattern of taking sickness absence around holidays and telling colleagues that she intended to call in sick on 31 December 2019, after her request for holiday was rejected.
Mrs Atif brought unsuccessful claims for unfair dismissal and race discrimination following her dismissal. She alleged that she was treated less favourably than her Italian colleagues and that her manager, Paola Habte, had a bias against non-Italian and Arabic workers. She also claimed that she was unfairly allocated late shifts and denied leave requests.
Mrs Atif appealed her race discrimination claim to the EAT. The EAT agreed with the tribunal that there was no evidence of discrimination on the grounds of race or ethnicity. Mrs Atif's argument that the tribunal had not considered the evidence which meant the burden of proof had shifted to the employer and had ignored relevant evidence was unsuccessful. In dismissing the appeal the EAT reviewed the tribunal's detailed findings of fact which included that D&G's entire management team was Italian, the investigation into Mrs Atif might have been prompted by a grievance she submitted about another employee on 6 January 2020 (which was not concluded) and that Italian employees were arguably treated differently. Taking these facts into account the tribunal ought to have concluded that the burden of proof had shifted to D&G and then considered whether D&G had demonstrated there had been no discrimination. However, the EAT found that while the route taken to its conclusion was "not ideal" the facts had been given detailed consideration by the tribunal. The EAT therefore held that the tribunal had implicitly found that the burden of proof had shifted, and that D&G had discharged it by showing that the reason for the dismissal was misconduct, not race. The EAT also noted that the tribunal had considered Mrs. Atif's allegations of favouritism and bias, but had rejected them as unsubstantiated or irrelevant.
What this means for employers
This case illustrates the importance of having clear and consistent evidence to support disciplinary action and to rebut allegations of discrimination. It is relatively easy for a claimant to shift the burden of proof in discrimination claims to an employer meaning that, in effect, employers need to show why there was no discrimination in their decision-making process. Practically, having a good contemporaneous document trail to rely on is useful so that employers can explain to the tribunal their reasons for decisions clearly and convincingly.
