Tribunal adopted wrong approach to objective justification of an employer's unauthorised absence policy
The Employment Appeal Tribunal (EAT) has found that the Tribunal adopted incorrect reasoning in a claim about an employer's strict policy on unauthorised leave.
The facts
In NSL Ltd v Zaluski [2024] EAT 86, the claimant was a Polish national employed by NSL Ltd (the respondent). During the COVID-19 pandemic, the respondent implemented a strict unauthorised absence policy which required employees to account for quarantine periods within their authorised leave. The policy required employees to return from leave on a pre-authorised date and any failure to do so beyond three days would be treated as potential gross misconduct.
The claimant requested three weeks' leave to visit Poland after his father's death. Despite initial approval, the claimant overstayed by three weeks. One of the reasons for his extended absence was that he needed to comply with quarantine rules both in Poland and in the UK. The claimant received a final written warning upon his return and subsequently brought claims for indirect race discrimination and harassment.
Tribunal decision
The Tribunal upheld the indirect discrimination claim. It found that the respondent had applied two provisions, criteria or practices (PCP's) with a potentially discriminatory effect, namely that:
- Staff were required to return promptly from authorised leave during the pandemic
- Any quarantine periods were to fall within the authorised leave
The Tribunal found that these PCPs disproportionately disadvantaged non-UK nationals who were more likely than UK nationals to travel abroad for family emergencies and to see relatives. The Tribunal did not consider that the PCPs were objectively justified and that there were other more proportionate ways the respondent could have managed the situation.
The respondent appealed to the EAT.
EAT Decision
The EAT upheld the Respondent's appeal and has remitted the claim for reconsideration. In its reasoning, the Tribunal focused on the impact of the PCPs on the claimant as an individual, rather than on their potential wider implications. In indirect discrimination claims, there is a requirement to establish group disadvantage. The Tribunal seemed not to have done this, and had instead focused on the claimant's particular circumstances. The Tribunal should have considered whether other non-UK nationals were more likely to be disadvantaged because they were generally more likely to have to travel abroad for family reasons. The Tribunal should have also carried out a more detailed balancing exercise when considering whether there were more proportionate means of addressing the situation.
Learning points
When considering the justification of a PCP, the focus should be on the impact the PCP has on the group, rather than on the individual claimant alone. Without a demonstrable group disadvantage, the claim cannot succeed.