Agency worker dismissed for unauthorised absence: race and sex discrimination claims fail
An agency worker who was dismissed after taking three days off without permission to care for his son has lost his claims of race and sex discrimination against Notting Hill Genesis.
1 min read · Last updated 18 May 2026
Case details
- #agency-worker
- #contract-worker
- #direct-discrimination
- #race
- #sex
- #unauthorised-absence
Key facts
- The Claimant was an agency worker supplied to the Respondent as a temporary Housing Officer.
- The Claimant was absent from work on 30 May to 1 June 2022 without authorisation.
- Mr Wiggins terminated the Claimant's engagement on 6 June 2022 because he believed the Claimant had defied an instruction and absented himself for personal reasons.
- The Claimant had not made any complaint of discrimination before or shortly after the termination.
- The Respondent's workforce is racially diverse, and there was no evidence of discriminatory treatment towards the Claimant or other black staff.
- The chosen comparator for sex discrimination, Jag, was a permanent employee with different circumstances and had not been absent without authorisation.
Timeline
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Claimant starts assignment
The Claimant began working for the Respondent as a temporary Housing Officer via an employment agency.
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Leave request discussion
The Claimant spoke to Ms Garrett about taking time off; Mr Wiggins sent a message denying work-from-home and asking the Claimant to call.
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Claimant absent without authorisation
The Claimant did not attend work from 30 May to 1 June 2022, caring for his son, without having obtained permission.
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Meeting and termination
Mr Wiggins held a video call with the Claimant, who explained he had to care for his son. Mr Wiggins terminated the engagement.
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Claimant complains
The Claimant emailed a complaint about Mr Wiggins's treatment.
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Formal grievance
The Claimant presented a formal grievance citing unfair dismissal and agency worker rights.
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Mr Wiggins provides account
Mr Wiggins emailed his account of the events to HR.
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Claim presented
The Claimant presented a claim form for unfair dismissal, race and sex discrimination, and arrears of pay.
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Preliminary hearing
Employment Judge Gordon-Walker held a preliminary hearing and clarified the claims.
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Final hearing
The final hearing took place over three days, with oral evidence and submissions.
The legal issue
The tribunal had to decide whether the respondent, by terminating the claimant's engagement as a contract worker, treated him less favourably because of his race (black African) or sex (male) compared to a hypothetical comparator or an actual female comparator.
The outcome
The tribunal found that the claimant's complaints of direct race and sex discrimination were not well-founded.
The key reasons were:
- The claimant had not made any complaint of discrimination before or shortly after termination.
- The respondent's workforce is racially diverse, and there was no evidence of discriminatory treatment towards the claimant or other black staff.
- The chosen comparator for sex discrimination, Jag, was a permanent employee with different circumstances and had not been absent without authorisation.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- Agency workers should ensure they have explicit permission before taking time off, as unauthorised absence can lead to termination.
- To succeed in a discrimination claim, you need a comparator in materially similar circumstances — a permanent employee with a clean attendance record is unlikely to be a valid comparator.
- Raising a discrimination complaint after dismissal, rather than before, can weaken the inference that discrimination was the reason for the treatment.
- Employers can rely on a genuine belief that an employee has defied instructions, provided that belief is reasonable and not based on protected characteristics.
What this case shows in practice
This case illustrates the challenges agency workers face when seeking to bring discrimination claims. The claimant, a temporary Housing Officer, was dismissed after taking three days off without authorisation to care for his son. He argued that the termination was because of his race and sex, but the tribunal found no evidence to support this.
The tribunal noted that the claimant had not raised any complaint of discrimination before his dismissal, and that the respondent's workforce was racially diverse. The chosen comparator for the sex discrimination claim was a female permanent employee who had not been absent without permission — a materially different situation.
What the losing side could have done differently
The claimant's case was weakened by the lack of a suitable comparator. For a discrimination claim to succeed, the comparator must be in circumstances that are not materially different. A permanent employee with no history of unauthorised absence was not a fair comparison. Additionally, raising the discrimination issue only after dismissal made it harder to show that discrimination was a factor in the decision.
Why the result matters for similar claims
This case serves as a reminder that discrimination claims require strong evidence of less favourable treatment because of a protected characteristic. Tribunals will look at whether the treatment was genuinely based on conduct, not on race or sex. Agency workers should be aware that their rights under the Equality Act 2010 are protected, but they must be able to point to a valid comparator and evidence of discriminatory motive.
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