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Lydia Seymour and Elizabeth Grace successful in complex indirect race discrimination appeal

Lydia Seymour and Elizabeth Grace successful in complex indirect race discrimination appeal

The Employment Appeal Tribunal has handed down judgment in the case of NSL v Zaluski, in which Lydia Seymour and Elizabeth Grace successfully acted for the Appellant.

The Employment Appeal Tribunal has handed down a detailed judgment overturning an Employment Tribunal’s finding of indirect race discrimination in relation to an employer’s annual leave policy during the Covid pandemic. The EAT also overturned an award of aggravated damages but upheld a finding of harassment related to race.

In NSL v Zaluski [2024] EAT 86, the employer adopted an annual leave policy during the pandemic which required  employees to factor in any relevant period of quarantine as a result of the pandemic. If an employee exceeded the authorised period of leave, even if as a result of unexpected quarantine requirements, then that absence was treated as being unauthorised.  At first instance, the Employment Tribunal considered that this policy was indirectly discriminatory to non-UK nationals, as they were more likely to need to travel overseas for family reasons.

On appeal, HHJ Auerbach explored the proper application of the proportionality and appropriateness aspects of the justification test, which require a balancing exercise between the discriminatory impact on the disadvantaged employee group and the legitimate aims relied upon by an employer. He found that the Employment Tribunal had erred in its approach to the law on indirect discrimination, and in particular had placed too much emphasis on Mr. Zaluski’s personal circumstances and failed to carry out the balancing exercise described by the Court of Appeal in Hardy & Hansons v Lax [2005] EWCA Civ 846. The Tribunal had also impermissibly speculated as to the hypothetical effect of the PCP on other employees, despite having no evidence to that effect.

In dealing with the award of aggravated damages, the EAT overturned the ET’s decision to make an award on the basis that the Claimant had not been paid to attend the hearing whilst the Respondent’s witnesses received their ordinary salary for the days that they attended, concluding that the ET had erred in treating the circumstances of the Respondent’s witnesses’ attendance as of a nature that was capable of triggering an award in aggravated damages at all. The ET had also failed to make any finding of fact in respect of injury to feelings caused by the witness’ attendance.

In respect of remission to the same tribunal or a different tribunal, the decision contains an interesting consideration of the Sinclair-Roche principles, and particularly the question of when a Tribunal has expressed itself so forcefully that it would not be appropriate for the matter to be remitted back to them.  In Zaluski, HHJ Auerbach determined that given the language and strength of expression of the ET’s views and conclusions at a number of points in the decision, including in its reasoning in relation to the indirect discrimination, the matter should be remitted to a fresh tribunal.

Read the full judgment here.

Find out more

Lydia Seymour

Lydia has a specialist pensions and employment law practice, including professional negligence claims in both areas. She has been recognised by the legal directories as a leading junior since 2005 and is listed for employment, pensions and professional negligence. Her practice includes all aspects of ‘black letter’ pensions law, including: de-risking, rectification,  issues arising in multi-employer schemes and trustee duties. Her clients include the Pensions Regulator, employers, trustees, trade unions and individuals.

To find out more about Lydia, contact Matt Sale on +44 (0)20 7427 4910 or Lexie Johnson on + 44 (0) 207 427 0801.

Elizabeth Grace

Elizabeth joined Chambers in September 2018 upon successful completion of her pupillage. She regularly appears in the County Court and the Employment Tribunal, and has also appeared in the High Court on complex interlocutory matters. She has appeared in the Court of Appeal, and has advised on civil procedure in relation to appeals in both the Court of Appeal and the Supreme Court.

To find out more about Elizabeth, contact Nick Levett +44 (0)20 7427 4908 or Mark Gardner +44 (0)20 7427 4909.

News 25 Jun, 2024


Lydia Seymour

Call: 1997

Elizabeth Grace

Call: 2017

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