Claimant v Dolce & Gabbana UK Ltd — 2020

The claimant, Mrs F. Atif, was employed by Dolce & Gabbana UK Limited from 6 January 2014. The tribunal found that her dismissal on 10 March 2020 arose from conduct concerns about sickness absence, not from any issue of capability or redundancy. The employer relied on a pattern of absences adjacent to days off or leave, the claimant's repeated questions about how many sick days she had left, and evidence that she had said she would call in sick after leave had been refused.

On the unfair dismissal claim, the tribunal accepted that the dismissing manager believed the claimant had committed misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation. It found that management concerns recorded in contemporaneous emails, the absence pattern, and witness evidence provided a sufficient basis for the conclusion that the claimant had been systematically abusing the sickness absence policy. The tribunal accepted that the final absence at the end of December 2019 and early January 2020 was genuine illness, but held that this did not undermine the employer's conclusion about earlier absences and the advance intention to take a sick day on 31 December 2019. It found that dismissal for systematic abuse of the sick pay system was within the range of reasonable responses and therefore fair under section 98(4) ERA 1996.

The tribunal considered a number of criticisms of the process, including the use of an anonymous witness, the length of the historical review of absences, the handling of the claimant's grievance, and whether the claimant should have been warned earlier or medically examined. It held that none of those matters made the dismissal unfair. It noted that there were return-to-work records and that the claimant herself acknowledged discussions with her line manager about patterns of absence. It also found that the grievance was not simply ignored, although it was not formally concluded as a standalone process before the appeal outcome.

On the race discrimination claim, the claimant, who identified as Algerian, complained about checking her sickness records, the disciplinary investigation, the way the investigation was conducted, dismissal, and the handling of her grievance. The tribunal accepted that she felt badly treated and noted that the management and HR personnel involved were Italian, but it did not find facts from which race discrimination could be inferred. It found that the claimant's comparators were not in materially similar circumstances, that the investigation and disciplinary steps were explained by the sickness absence concerns, and that mere unreasonableness was not enough to establish unlawful discrimination. The claim of direct race discrimination was therefore dismissed.