Jagbir Sidhu v Our Place Schools Limited
[2023] EAT 70
NSL Ltd v P Zaluski
5 June 2024
[2024] EAT 86
Employment Appeal Tribunal
A Polish worker sued his employer for discrimination after being disciplined for overstaying leave due to a family emergency and pandemic-related quarantine. The court agreed some of the company's policies unfairly impacted foreign workers but disagreed about the severity of the consequences and overturned some of the compensation.
Key Facts
- •Mr Zaluski, a Polish national, worked for NSL Ltd as a Civil Enforcement Officer.
- •He took leave to attend his father's funeral in Poland, requiring him to quarantine in both Poland and the UK.
- •NSL's policies required staff to factor in quarantine periods and return from leave on the pre-authorised date; failure to do so could result in disciplinary action.
- •Mr Zaluski overstayed his leave due to unforeseen quarantine and the time needed for his father's affairs.
- •He received a final written warning, which he unsuccessfully appealed.
- •He claimed direct discrimination (failed), indirect discrimination (partially successful), and harassment (successful).
Legal Principles
Indirect discrimination requires showing a provision, criterion, or practice (PCP) puts a group sharing a protected characteristic at a particular disadvantage and is not a proportionate means of achieving a legitimate aim.
Equality Act 2010, section 19
Justification of indirect discrimination requires a critical evaluation, balancing discriminatory effect against the employer's reasonable needs. The PCP must be both an appropriate (rationally connected) means and reasonably necessary to achieve the legitimate aim.
Hardys & Hansons plc v Lax [2005] EWCA Civ 846; Homer v Chief Constable of West Yorkshire Police [2012] UKSC; Allonby v Accrington & Rossendale College [2001] EWCA Civ 529
Harassment occurs when unwanted conduct related to a protected characteristic violates dignity or creates an intimidating environment. The conduct's relation to the characteristic doesn't require direct motivation but must be supported by identifiable features in the factual matrix.
Equality Act 2010, section 26; Tees Esk and Wear Valley NHS Foundation Trust v Aslam [2020] IRLR 495; Unite the Union v Nailard [2018] EWCA Civ 1203
Aggravated damages for discrimination require exceptional conduct exacerbating injury to feelings; mere attendance at a hearing by a perpetrator isn't usually sufficient.
Zaiwalla & Co v Walia [2002] IRLR 697; HM Prison Service v Salmon [2001] IRLR 425
Outcomes
Appeal on indirect discrimination justification succeeded; remitted to a new tribunal.
The tribunal focused too heavily on Mr Zaluski's specific circumstances, insufficiently considering the group disadvantage and failing to critically evaluate alternative solutions, including improperly relying on speculation about employee resignations.
Appeal on harassment finding succeeded.
The tribunal properly found Mr Shaw's repeated threats were influenced by a prejudicial view of Mr Zaluski's race stemming from prior absence episodes. This supported the conclusion that the conduct was 'because of' race.
Appeal on aggravated damages succeeded.
Mr Shaw's mere attendance at the remedy hearing, even if paid, was insufficiently egregious to justify aggravated damages. The tribunal didn't find that this caused Mr Zaluski additional distress.
Remedy award remitted to a new tribunal.
The injury to feelings award was composite (indirect discrimination and harassment); the tribunal’s recommendations regarding the written warning and disciplinary record were quashed.