Lying about reason for dismissal and race discrimination


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The Court of Appeal has held in Base Childrenswear v Otshudi that if a manager lies about the reason for dismissal this is enough to shift the burden of proof in a discrimination case.

Ms Otshudi (a photographer) was made redundant and, believing that this was because of her race (she was Black), brought a tribunal claim.  According to her employer, the reason for her redundancy was "purely for financial/economic reasons", but it later amended its ET3 to include a new reason, notably that items of clothing were found "concealed" in the photography room, implying that she was going to steal them.  The manager lied to Ms Otshudi about the reason to "minimise potential confrontation".

The Court of Appeal found that the manager's persistence in lying about the real reason for Ms Otshudi's dismissal formed the basis of a prima facie case of race discrimination, and the burden of proof was shifted to the employer.  It held that the employer had failed to show that race played no part in Ms Otshudi's dismissal.  The Court concluded that the manager was influenced in coming to his conclusion "so precipitately and on so little evidence", that Ms Otshudi had stolen the clothes, "by a stereotypical prejudice based on her race".

Take note:  The decision in Otshudi provides employers with a salutary warning that a fair reason must be given for a dismissal, and a proper process followed.  Rather than investigating Ms Otshudi's suspected theft (and proceeding to discipline and dismiss if the suspicion turned out to be well-founded), thereby avoiding any potential discrimination, the manager sought to make things less confrontational by giving a false reason for the dismissal.

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