November 1, 2019
In the case of Base Childrenswear v Otshudi, the Court of Appeal upheld the decisions of both the Employment Tribunal and the Employment Appeal Tribunal, that an attempt to lie about the real reason for a dismissal was sufficient to suggest discrimination as a possible explanation for the decision.
Mrs Otshudi’s manager believed that she was stealing or intending to steal from the business and so dismissed her, however, gave the reason as redundancy to minimise the potential for confrontation. No procedure was followed and when Mrs Otshudi raised a grievance alleging race discrimination, the company ignored the grievance.
Mrs Otshudi submitted a claim to the Employment Tribunal which the company defended on the basis that it was a genuine redundancy. During the preparation for the hearing, primarily due to the documents it had to disclose, the company amended its defence, now stating that the real reason for her dismissal was that Mrs Otshudi’s line manager believed she was planning to steal stock.
Agreeing with the Employment Tribunal and the Employment Appeal Tribunal, the Court of Appeal found that the Tribunal had been entitled to find that the line manager’s decision was based on a stereotypical prejudice of Mrs Otshudi’s race. This then shifted the burden on the company to prove that the dismissal was unrelated to her race. The lack of evidence to support the line manager’s belief in the theft and the original lie about the reason for dismissal led not only to the company losing the case, but also having to pay Mrs Otshudi’s costs in dealing with the made up redundancy argument in the company’s ET3.