F Atif v Dolce & Gabbana UK Ltd

Where facts, viewed cumulatively, could support an inference of race discrimination, an Employment Tribunal should apply the burden-shifting approach in section 136 of the Equality Act 2010. It must then determine whether the respondent has proved that race played no part in the treatment.

An error in failing formally to reverse the burden will not require an appeal to be allowed where the tribunal has nevertheless examined the potentially discriminatory facts in detail, reached a clear non-discriminatory conclusion, and would inevitably have reached that conclusion after applying the correct burden.

The claimant, an Algerian and Arabic-speaking client advisor, was dismissed for gross misconduct after the respondent concluded that she had systematically abused its sickness absence policy. She alleged that her investigation, discipline, dismissal and the handling of her grievance were affected by race, particularly her status as a non-Italian Arabic-speaking employee.

The London Central Employment Tribunal dismissed her claims for unfair dismissal and race discrimination. Its race-discrimination decision held that the evidence did not permit an inference of discrimination and that the burden of proof had not shifted under section 136 of the Equality Act 2010.

On appeal, the issue was whether the tribunal had erred in its approach to the burden of proof and comparators, and, if so, whether that error affected the result.

1. Appeal dismissed. The Employment Tribunal should have held that, taking the relevant facts together, the burden of proof had shifted under section 136 of the Equality Act 2010. Those facts included the exclusively Italian senior management structure, the timing of the investigation, the incomplete grievance process, the asserted harshness of dismissal, and the treatment of the closest comparator.

2. The purpose of the burden-shifting exercise is to ensure that a tribunal grapples with evidence capable of suggesting discrimination and, where appropriate, asks whether the respondent has proved that the treatment was in no sense discriminatory. The tribunal’s formal conclusion that the burden had not shifted was therefore erroneous.

3. That error did not make the decision unsafe. The tribunal had in substance addressed each fact relied upon. It accepted the respondent’s explanation for the investigation; found an explanation for the incomplete grievance process; treated the dismissal as justified by the claimant’s misconduct; and found that no actual comparator was in materially similar circumstances. Its observation about the hypothetical comparator added little, since the issue was whether a person of another race in the same circumstances would have been treated differently.

4. The tribunal had engaged with the evidence capable of supporting an inference of discrimination and had reached a clear, permissible conclusion that there was no race discrimination. Had it expressly stated that the burden had shifted and then considered the respondent’s explanation, it would clearly have reached the same conclusion. The error was therefore immaterial.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 47.
• London Central Employment Tribunal: Claims for unfair dismissal and race discrimination dismissed in a judgment sent to the parties on 26 November 2021.