Black lorry driver wins race discrimination claim after being dismissed during sick leave

The Employment Tribunal has ruled that a black lorry driver was discriminated against because of his race and had he been white, he would not have been dismissed under the same circumstances.  

The employee (AB) was dismissed after 9 days of absence and after not responding to an AWOL letter. The tribunal however found that he was incorrectly identified as AWOL, as he had sent his line manager a fit note that signed him off work via email.

AB was signed off from work due to work-related stress, which, during a back-to-work meeting, was identified as likely due to a “lack of duty and care from work”. During a period of annual leave, AB emailed a fit note to his line manager which signed him off from work and requested a referral to occupational health. Unbeknown to AB however, the line manager had begun paternity leave that day. 

Subsequent to this, AB was sent an AWOL letter that warned him that his employment would be terminated by reason of resignation if he did not respond. At the tribunal, it was accepted that AB didn’t receive the letter as there was no tracking or proof of delivery.  In an attempt to make contact, HR advised that his next of kin be called, who was his elderly mother.  She was over 80, unwell and did not live with him.  It was noted that she “picked up and hung up”. 

After this AB was informed via letter that his contract had been terminated. The letter stated, “We have taken your no contact as a sign you have resigned your position and have been processed as a leaver with termination of employment”. AB was dismissed on 7 May 2024.  He was advised by his trade union not to appeal the decision because the 5-day appeal window had passed. 

The employer interpreted AB’s failure to respond to the AWOL letter as a resignation, therefore, terminating his contract after 9 days of absence. It was determined by the tribunal however that they would not have dismissed a hypothetical white employee after only 9 days of absence.  AB’s claims of unfair dismissal, wrongful dismissal and racial discrimination succeeded, but his claims of harassment related to race, victimisation, detriment for making a protected disclosure and automatic unfair dismissal for making a protected disclosure were dismissed. 

The judge determined that the company’s assumption that AB had resigned after his 9 days of absence was “not genuine”, with their attempts at making contact “minimal and inadequate". The court found that he did not fit the typical circumstances of an AWOL employee having worked for the company for over 3 years, believing there was “no explanation as to why he would suddenly not attend work, other than sickness or incapacity”.

It was found that the employer’s evidence regarding AB’s resignation “lacked credibility” and a “reasonable employer” would have made greater attempts to get in contact before deciding to terminate his contract. The tribunal stated, “Even if the respondent did have a genuine but mistaken belief that AB was absent without leave, we did not consider that the respondent acted reasonably in forming that belief, due to an insufficient enquiry as to why AB had not attended work.”

It was therefore found that AB was dismissed and that it could be inferred that the decision was influenced by racial discrimination, when considering if a hypothetical white employee would have been dismissed in the same circumstance. Because of this, the burden of proof fell to the company to provide adequate evidence that the decision was not influenced by race, but the evidence provided was found inadequate and it was determined that on the balance of probabilities, AB’s dismissal was related to his race. As a result, AB’s racial discrimination claims succeeded.

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