Race discrimination: false reason for dismissal shifted burden of proof

Base Childrenswear Ltd v Otshudi

Lying about the reason for dismissal and later amending one’s defence to include the true reason is likely to shift the burden of proof in a discrimination case.

Background

Ms Otshudi had worked as a photographer for BC for three months, taking pictures of clothing to put online. The standard of her work was considered to be high. However, completely out of the blue, she was called into a meeting and dismissed for redundancy. She initiated tribunal proceedings alleging race discrimination. Her employer failed to respond to her grievance or appeal against her dismissal. Three weeks before the tribunal hearing her employer amended its defence to change the reason for dismissal to conduct – suspected theft. The reason it had not initially told Ms Otshudi of this reason was, argued her employer, because it wanted to avoid a confrontation.

The tribunal found that advancing a false reason for dismissal led to an inference that the employer had been trying to cover up a dismissal that was tainted by considerations of race and therefore it could infer that there had been a racial element in Ms Otshudi’s dismissal. It did not however expressly refer to the burden of proof. The employer’s appeal to the EAT failed and it appealed to the Court of Appeal.

Court of Appeal decision

The appeal was dismissed.

The employer argued that Ms Otshudi had not proved facts from which the tribunal could decide that her dismissal was influenced by her race. The fact that she was black and had been dismissed was not enough for the burden of proof to shift to the employer.

The Court of Appeal rejected this argument. While it may not have reached the same conclusion, the employer had lied about the reason for dismissal – and had persisted in that lie even once it was apparent that it had failed in its aim of avoiding confrontation. This was enough for the tribunal to decide, in effect, that the burden of proof had shifted to her employer. The employer then had to show that race had played no part in Ms Otshudi’s dismissal which it had failed to do.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1648.html

Comment

It is unusual that there is direct evidence of discrimination – and this is why the shifting of the burden of proof is so important. If the employer genuinely believed that the employee was stealing, then they should have gone through a proper investigation. The fact that they did not take such simple steps and then lied about the reason for dismissal, makes them look as if they are lacking in credibility and that they are covering up the real reason why they wanted to exit this employee.

Ms Otshudi had already succeeded in the EAT where her employer’s appeal against the size of the award made to her was dismissed. That decision is also precedent for the fact that the award can be uplifted by up to 25% if the employer does not deal with a post-termination grievance.