| In the recent case of Zaluski v NSL, the Respondent had a policy that employees had to return on time from annual leave and include any quarantine period in their leave during the covid pandemic. Any continuing absence beyond the formal return date would be unauthorised.
The Claimant, a Polish national, booked annual leave and returned to Poland to organise his father’s funeral. He had factored the quarantine period into his leave request. However, he was unexpectedly required to quarantine in Poland. He returned late from his leave and received a final written warning for unauthorised absence. The Claimant claimed indirect race discrimination and harassment. The employment tribunal held that the indirect discrimination claim should succeed. The tribunal found the policies were not justified and placed non-UK nationals, such as the Claimant, at a disadvantage as they were more likely to need to quarantine. It also found that warning emails sent to the Claimant by his manager were racial harassment. The Employment Appeal Tribunal disagreed with the employment tribunal’s conclusion on indirect discrimination but upheld the decision on harassment. On indirect discrimination, the tribunal had incorrectly focused on the Claimant’s particular circumstances (his bereavement and the fact that insufficient leave had been approved in the first place), rather than whether the actual policies at issue were justified. On harassment, the employment tribunal was permitted to conclude that the threatening emails related to the Claimant’s race. They were sent in the context of the manager’s view of the Claimant’s past leave periods abroad, which were influenced by race. |
