The claimant alleged that he had been unfairly dismissed and discriminated against in a number of ways on the grounds of his race or nationality.

The claims centred around a period of sick leave, after which the claimant claimed that he was adversely treated as a sort of ‘punishment’. The respondent maintained that the claimant had never actually been dismissed and cited the absence of a p45 as evidence to support this fact. The respondent alleged that the claimant breached his employment contract by failing to keep them informed of his progress and likely availability during the period of absence.

The claimant sought to compare himself with a fellow worker, but the disparity in time taken for sick leave and physical health of both workers rendered this comparison inappropriate. The claim of unfair dismissal was rejected by the tribunal as no evidence of the claimant’s contract being terminated, with or without notice, existed. The tribunal was also satisfied that the claimant could not prove facts from which the tribunal could conclude, in the absence of an adequate explanation that unlawful racial discrimination has occurred. In dealing with the issue of discrimination the tribunal echoed the judgment of Madarassy v Nomura International Plc [2007] IRLR 246 in holding that the term ‘a reasonable tribunal could possibly conclude’ necessitates a consideration of a wide range of factors and the factual matrix of the case is important.

Practical Lessons from this Decision

The absence of a suitable comparator for the claimant was the real downfall here. The fact that the claimant was citing a physical ailment as a material fact in his discrimination and his comparator lacked such an affliction was considered by the tribunal. The period of absence taken by both individuals wa s not sufficiently similar and this demonstrates the importance of citing a suitable comparator since the tribunal will undoubtedly scrutinise the comparison.