An employment tribunal has dismissed claims of racial discrimination brought by a couple who alleged they were sacked by Waitrose because of their ‘tanned skin’. The tribunal concluded that the dismissal was the result of unauthorised absence following an extended trip abroad without employer permission.
Peter Hedger and Katerina Dimitrova were employed by the supermarket, part of the John Lewis Partnership, before their dismissal. According to tribunal proceedings, the couple took unauthorised leave to visit Bulgaria, Miss Dimitrova’s home country, after a formal request for time off had been refused. The tribunal found that they failed to inform their managers of the full nature of their absence and only disclosed they had been abroad after returning to the UK.
The pair alleged they were dismissed on the basis of their appearance and background, with claims including racial discrimination and harassment. However, the tribunal found that there was no evidence to support these allegations. Instead, it concluded that they had been dismissed for gross misconduct.
Discrimination claims dismissed
The tribunal heard that the couple submitted a leave request for 2 September 2023, which was refused. Between 9 September and 28 October 2023, they contacted their branch on several occasions but failed to disclose they were abroad. Waitrose maintained that the dismissal was based on unauthorised absence and dishonesty.
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Employment Judge Naeema Choudry stated, “The reason for dismissal was not due to the (couple) being in Bulgaria but because they were believed to be absent from work for no good reason and not to be house-hunting in the UK because they were abroad at the relevant time, having stayed abroad after a period of authorised annual leave.”
The tribunal struck out claims made on the grounds of race, including the allegation that the couple were dismissed because of their ‘tanned skin’. Judge Choudry concluded that these claims had no reasonable prospect of success.
“It is clear that the (couple) were dismissed because they were perceived to be on holiday when they were supposed to be at work and not because they had tanned skin,” she said. The tribunal also dismissed their claims of unfair dismissal.
The tribunal was told that the couple had claimed to be house hunting in the UK during their absence. Mr Hedger explained that they had nowhere to live at the time and had not worked since their dismissal, citing difficulties finding joint-shift roles and financial strain.
However, the employer’s case, supported by the employee handbook, classified unauthorised absence as a form of gross misconduct. The appeal officer at Waitrose had found that the couple failed to be open with management, failed to disclose their travel and had not communicated appropriately during their absence.
Managing unauthorised absence
Judge Choudry struck out the claims based on Miss Dimitrova’s Bulgarian nationality and their alleged treatment due to skin tone. One outstanding matter relating to Miss Dimitrova’s right to be accompanied at disciplinary and appeal hearings is scheduled to be heard at a later tribunal.
Kate Palmer, Employment Services Director at Peninsula, told HR review that while this case was clear-cut, unauthorised absence should always be approached with caution and consistency.
“Unauthorised absence can occur for a variety of reasons. It’s important for employers to not to have a knee-jerk approach but to deal with it carefully, ensuring they carry out as much investigation into the cause and circumstances as they can before taking any action and if they have a policy, ensure that they follow it,” she said.
Palmer noted that while the tribunal found in favour of the employer, claims relating to protected characteristics must always be examined in detail.
“Whilst the claims for discrimination on a number of grounds were struck out in this case, it does highlight the potential risks involved when dealing with unauthorised absence. If there is an underlying reason that might be linked to a protected characteristic, it is important for employers to explore this further and satisfy themselves the reason for the dismissal is not directly or indirectly because of this.
“In this instance, the judge agreed that after an investigation, and in line with the respondent’s handbook listing unauthorised absence as gross misconduct, the decision was made to dismiss the individuals because of their unauthorised absence, and not because of their protected characteristics.”
