I have been tempted in the past to establish a ‘hall of shame’ feature on the blog to highlight the depths some employers will go in their treatment of employees based on public decisions of their conduct in caselaw. If I were ever to do so Base Childrenswear Ltd would surely stake a claim for a prominent role given their conduct towards former employee Ms Otshudi.

Ms Otshudi’s case is not however notable just for the depths managers in Base Childrenswear Ltd were willing to go it is also a useful decision on the burden of proof in discrimination claims. In a discrimination complaint section 136 of the Equality Act 2010 provides that if a claimant establishes a prima facie case of discrimination the burden shifts to the respondent (usually the employer) to demonstrate that the reason for the treatment complained of was not for a discriminatory reason. As I reported last week the Supreme Court will soon hear an interesting case on the shifting burden of proof which has the potential (I am not optimistic) of to simplify this area of law somewhat.

The recent case of Base Childrenswear Ltd v Otshudi offers a interesting perspective on what how the arguably dishonest conduct of an employer can be sufficient to shift the burden of proof onto an employer.

The claimant had only been employed by the respondent for a matter of months when Ms Otshudi was summoned to an unexpected meeting. At that meeting a manager told her that she was being dismissed immediately, and that the reason for the dismissal was redundancy. Ms Otshudi was asked to collect her belonging and Ms Otshudi complained that she did not believe that was the reason as she had heard nothing about a redundancy situation and that she thought the dismissal. The manager then sought another manager to enter the meeting who assured Ms Otsudi that the reason for her dismissal was indeed redundancy.

Subsequently Ms Otsudi lodged a grievance alleging discrimination but the employer completely  ignored that complaint and, therefore, she went on to make a complaint to the employment tribunal of race discrimination. In the ET3 (the employer’s formal response to the complaint) the employer affirmed that the reason for dismissal was redundancy.

However, in a preliminary hearing the employer tried to change its account and alleged that although there had been no investigation the actual reason for dismissal was, contrary to its earlier response, misconduct and specifically theft. In amended grounds of resistance the employer stated “Whilst it is admitted that redundancy was not the true reason for terminating the Claimant’s employment, it was Mr Granditer’s preference to give a seemingly innocent reason in order to minimise the potential confrontation. Mr Granditer was also mindful that whilst Mr Moore and Mr Kirby had presented very persuasive evidence, he had not witnessed the attempted theft itself or seen any conclusive evidence. … [R]ace had absolutely no bearing in Mr Granditer’s decision.”

The tribunal was very sceptical of the credibility of the Respondent’s account given its earlier dishonesty to the court (for which it was also to suffer an unusual costs order against it).

In a race discrimination case there has to be something that leads the tribunal to consider the treatment may have been because of race. This is a case where the evidence was no clear, as the judgement makes clear:

As regards the primary challenge, the question is whether the factors relied on by the Tribunal at para. 156 of its Reasons – summarised at para. 27 above [the dishonesty of the respondent and exaggerated response to allegations] – could reasonably justify the conclusion, in the absence of a satisfactory explanation, that the Claimant’s race was a factor in her dismissal. As to that, I feel bound to say that I am not sure that I would have reached the same conclusion as the Tribunal. But the question of what inferences should be drawn from the primary facts is a question of fact and not of law. It is not legitimate for this Court to substitute its own view unless the Tribunal’s conclusion was one which was not reasonably open to it. I am not prepared to go that far. If the Tribunal had relied only on Mr Granditer’s expression of outrage at the dismissal meeting it might be a different matter, since that seems to me equivocal at best: even if it indicated a guilty conscience, that would be readily explicable by his having been caught out giving a false reason for the dismissal. But his persistence in lying about that reason seems to me a defensible basis for the Tribunal’s conclusion. Giving a wholly untruthful response when discrimination is alleged is well-recognised as the kind of conduct that may indicate that the allegation is well-founded. Of course it will not always do so: Judge Stacey referred in her judgment to the fact (often stressed in criminal cases) that lies may be told for many different reasons. But in this case the Tribunal explicitly considered the explanation given for the initial lie – to minimise confrontation, or soften the blow of dismissal – and pointed out that that ceased to be operative once the Claimant had brought proceedings. Even so, it could be argued that once Mr Granditer was committed to the initial lie it was understandable that he would feel obliged to persist with it, so that there is no need to treat it as a tacit acknowledgment of guilt (and discriminators are not always themselves even aware of their own discriminatory motives).

And so, the Respondent’s practice of continued deception both to the claimant and the tribunal well past the point where it could be justified by trying to minimise hurt feelings was (just) sufficient to shift the burden of proof to the employer.

This situation will not present itself with regularity but I have encountered a number of cases in discrimination cases where managers have engaged in deliberate deception. This case will be a useful one to be aware of in the event that in such a case a discrimination case is contemplated.


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