Should a tribunal have applied the reverse burden of proof in a race discrimination claim where the claimant showed facts from which a tribunal could conclude that discrimination had occurred?

Yes, decided the Employment Appeal Tribunal (EAT) in the recent case of Atif v Dolce and Gabbana  – but the ultimate decision reached by the tribunal was still the correct one.

The Claimant, an Arab-speaking Algerian, worked for the Respondent, an Italian fashion house. She raised a grievance which was not concluded by the Respondent. She was then dismissed for abusing the Respondent’s sickness policy. In particular, she asked about her annual sick day ‘entitlement’ and took time off sick on dates which had been refused as holiday.

The Claimant claimed unfair dismissal and race discrimination. She said she was treated differently than her Italian colleagues in terms of her dismissal and her grievance. The tribunal dismissed both the unfair dismissal and race discrimination claim. On race discrimination, the tribunal found that the Claimant had not shown facts that raised an inference of discrimination. So, the burden of proof had not shifted to the Respondent. They did not have to show that discrimination was not the reason for her treatment. The Claimant appealed this aspect of the decision.

The EAT held that the Claimant had raised facts which could amount to discrimination. They include that the Respondent’s management were all Italian; disciplinary proceedings started just after she had complained about her manager; her grievance was not completed; and her Italian manager had also taken sick days around other absences. The burden of proof had shifted.

However, the EAT dismissed the Claimant’s appeal. Although they had gone the wrong way about it, the tribunal had grappled in detail with the facts and their implications. They had reached a clear conclusion: there was no race discrimination.