The Employment Appeal Tribunal (EAT) has held in NSL Ltd v Zaluski that an employment tribunal failed to approach justification correctly in an indirect race discrimination claim based on an employer's unauthorised absence policy.
Mr Zaluski, a Polish national, worked for NSL Ltd as a parking enforcement officer for the London Borough of Wandsworth. During the COVID-19 pandemic, NSL implemented policies under which staff were responsible for ensuring that any authorised leave factored in any period of mandatory quarantine, and that they returned from holiday on the authorised date. If they took unauthorised absence of more than three days this was liable to be classed as gross misconduct.
In January 2020, Mr Zaluski had a period of unauthorised leave when, following the death of his mother-in-law, he went to Poland. Later that year he requested three week's leave to go to Poland, but ended up being absent for around three months as a result of sickness. Disciplinary proceedings were initiated, but no sanction was imposed as the absence was treated as unplanned. In December 2020 Mr Zaluski's father died and he requested three weeks' leave. Mr Zaluski overstayed by approximately three weeks due to his need to quarantine both in Poland and the UK. He was issued with a final written warning under NSL's disciplinary procedure. Mr Zaluski brought a number of claims, including one for indirect race discrimination.
The tribunal upheld the indirect discrimination claim. It found that NSL had applied provisions, criterion and practices (PCPs) that put people who were not UK nationals at a disadvantage, namely the requirement for staff to return promptly from leave during the pandemic, the requirement that quarantine be covered as part of authorised leave and that any continuing absence due to quarantine would be treated as unauthorised absence. Although it found that NSL had a legitimate aim (ensuring its contract with Wandsworth was fulfilled) it held that the PCPs were not proportionate and so not objectively justified.
The EAT upheld the appeal. It found that the tribunal's reasoning drew on Mr Zaluski's particular circumstances (namely his need for compassionate leave due to bereavement) rather than considering the question of group disadvantage and then whether the policies themselves were justified. The tribunal should have considered whether non-UK nationals were generally more likely to have to travel abroad to deal with family bereavements or emergencies, which placed them at a particular disadvantage. The tribunal should have carried out a more detailed balancing exercise when considering whether there were more proportionate means of addressing the situation and the matter was remitted to the tribunal for reconsideration.
Take note: This decision shows the importance of establishing group disadvantage before considering whether a PCP can be justified for the purposes of an indirect discrimination claim. Here, by focussing on the individual claimant, the tribunal had taken the wrong approach.
