Sick days v. annual leave

Sick days are days when you are sick. Annual leave is a contractual entitlement to time off. They aren’t the same thing. 

This distinction was recently considered by the Employment Appeal Tribunal (EAT) in London.

Background

The Claimant, an Arab-speaking Algerian, was employed as a client advisor with Dolce & Gabbana (D&G) at their Harrods concession from 2013 until her dismissal in 2020.  

The Claimant has previously raised a grievance, which had not concluded before her dismissal, for systemically abusing the sickness policy. She had taken time off sick on days she had already been refused holiday leave and had enquired how many sick days she had left.    

She claimed unfair dismissal and race discrimination, alleging that she had been treated differently from her Italian colleagues. The Employment Tribunal (ET) dismissed her claims, finding the Claimant had failed to demonstrate facts that raised an inference of racial discrimination. D&G was not, therefore, required to prove that it had not discriminated against the Claimant. In legal terms, this would have been a ‘reverse burden of proof’.

The Claimant appealed this decision on the burden of proof.

On Appeal

The EAT determined that the Claimant had raised facts that could amount to racial discrimination. 

Her managers were all Italian. Disciplinary proceedings commenced directly after her grievance was raised. That grievance was never wholly dealt with. One of the managers had similarly taken sick days around other absences. Therefore, the burden of proof should have shifted to D&G to show that discrimination was not the reason for the Claimant’s treatment.

Despite this, the Claimant was not successful in her appeal. Although the ET approached the issue incorrectly, it still dealt with the facts of the case in detail, reaching a clear conclusion. Although the route was not ideal, the ET was entitled to reach the decision it did.

Comment

This case focused on an oversight of the ET. It also highlighted some key considerations for employers:

• Discrimination – you should know your obligations under the Equality Act 2010. These should be reflected in your policies. Training should be provided on Equality, Diversity and Inclusion. No employee should be treated less favourably based on a protected characteristic.

• Approaching a grievance – you must have a grievance procedure in place. This should be communicated in writing. You should follow the correct procedure and see any grievance through to its outcome. Following an incorrect grievance procedure could see an ET vary any award by 25%.

• Fair dismissal – your dismissal procedure must be fair. This will reduce the risk of a successful ET claim. Your dismissal and disciplinary procedure should be communicated in writing.  Following an incorrect dismissal procedure could see an ET vary any award by 25%.

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