Waitrose Employees' Race Discrimination Claim Struck Out After Unauthorised Holiday Dismissal

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Factual summary

Peter Hedger and Katerina Dimitrova, former Waitrose employees, brought claims against the supermarket for race discrimination and unfair dismissal. They alleged discrimination based on their 'tanned skin' after being dismissed following an unauthorised holiday to Bulgaria. An employment tribunal heard that the couple had taken leave without permission and extended their stay, failing to be open and honest with their employer about their absence. The tribunal concluded that the dismissal was for gross misconduct due to unauthorised absence, not for discriminatory reasons. Consequently, their claims for race discrimination, harassment, and unfair dismissal were struck out.

What happened

Peter Hedger and Katerina Dimitrova, who worked for Waitrose, had a leave request for 2 September 2023 refused. Despite this, they travelled to Bulgaria towards the end of August 2023. Between 9 September and 28 October 2023, they contacted their branch on several occasions but did not disclose they were abroad. Upon their return to the UK, they revealed their travel. Waitrose subsequently dismissed the couple for gross misconduct, citing unauthorised absence, which is listed as an example of gross misconduct in the John Lewis handbook. The couple appealed their dismissal, but the appeal officer upheld the decision, concluding they had not been open and honest about their absence. Mr Hedger and Ms Dimitrova then brought claims against Waitrose at an employment tribunal, alleging race discrimination based on their 'tanned skin'. Employment Judge Naeema Choudry found that the reason for dismissal was unauthorised absence and not discrimination. The tribunal struck out their claims for race discrimination, harassment, and unfair dismissal, determining they had no reasonable prospect of success. A separate claim by Ms Dimitrova concerning the right to be accompanied at hearings is scheduled for a later tribunal date.

Why this matters

This case underscores the critical importance of employees adhering to company policies regarding leave and absence. Taking unauthorised leave or being dishonest about one's whereabouts can lead to serious disciplinary action, including dismissal for gross misconduct. For employers, it highlights the need for clear communication of policies and consistent application of disciplinary procedures. The tribunal's decision reinforces that dismissals based on legitimate breaches of conduct, rather than discriminatory grounds, are likely to be upheld, provided due process is followed.

UK workplace relevance

In the UK, employers typically have clear policies on requesting and approving annual leave, as well as procedures for reporting absences. Unauthorised absence is widely considered a form of gross misconduct, which can justify summary dismissal. Employees are generally expected to be transparent and honest with their employer about their availability for work and any reasons for absence. Employers must ensure that any disciplinary action, including dismissal, is conducted fairly, based on a thorough investigation, and in accordance with the company's disciplinary policy and statutory requirements. This includes providing employees with the right to be accompanied at disciplinary and appeal hearings.

What an employee may wish to document

• Employee Handbook/Contract of Employment: To establish company policies on leave requests, absence reporting, and definitions of gross misconduct.
• Leave Request Forms/Records: Documentation of any leave requests made by employees and the employer's response.
• Correspondence (emails, letters, call logs): Records of all communications between the employees and the employer regarding their absence, including when travel was disclosed.
• Disciplinary and Appeal Hearing Minutes/Notes: Detailed records of the disciplinary process, including allegations, employee responses, evidence considered, and decisions made.
• Dismissal Letter: Clearly stating the reasons for dismissal, referencing relevant policies and the outcome of the disciplinary process.
• Appeal Outcome Letter: Documenting the findings of the appeal process and the final decision.

Related guidance and tools

ACAS guidance · How to document workplace bullying · Workplace incident log

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