Search

How can we help?

Icon

Little white lies: not giving the true reasons for dismissal pointed to discrimination

This week, in Base Childrenswear v Otshudi, the Court of Appeal confirmed that not being honest about the reason for dismissal can show that the employer has a discrimination case to answer.

Ms Otshudi, a photographer of black African ethnicity, had less than two years’ service and was dismissed. She was told that the reason was redundancy but no process had been followed. She brought a claim that her dismissal was unlawful harassment related to her race. The employer defended the claim on the basis that it was a genuine redundancy. Faced with disclosure, it amended its defence to say the real reason was that the dismissing manager, of white British ethnicity, had genuinely believed that Ms Otshudi was intending to steal five items of clothing but had not wanted to confront her about this.

The Court of Appeal upheld the decision of the ET and EAT that the decision to dismiss was tainted with race discrimination: the manager had rushed to a conclusion that the Claimant was intending to steal on flimsy evidence which he realised would not support a dismissal on gross misconduct grounds.

From this, and the fact that the business had lied about the reason for dismissal, the Court of Appeal decided that the tribunal had been entitled to find that part of the manager’s reasons for acting this way was stereotypical prejudice based on the employee’s race, even if this was unconscious on his part.

The Court of Appeal upheld the decision of the ET and EAT that the decision to dismiss was tainted with race discrimination.

This case shows the danger of trying to take shortcuts in disciplinary matters. Employers need to be honest with themselves about why they prefer not to give the real reason for dismissal. It should always be a red flag to HR professionals if this is because the business wants to avoid carrying out a reasonable performance or conduct process.

For advice about carrying out disciplinaries or training regarding unconscious bias, contact our employment team.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

Pub
  • 24 March 2025
  • Employment

Talking Employment Law: The Employment Rights Bill – Part 1

In part 1 of the Employment Rights Bill podcast in the ‘Talking Employment Law’ series, Louise Keenan and Lucy White, members of the employment team, will discuss some of the main provisions of the Bill, including unfair dismissal and family rights.

art
  • 21 March 2025
  • Employment

Increase to Tribunal Award Limits Effective from 6 April 2025

As of 6 April 2025, the Employment Rights (Increase of Limits) Order 2025 will increase the compensation limits which apply to various Employment Tribunal awards as well as other statutory payments.

art
  • 18 March 2025
  • Immigration

Key New Changes to the Immigration Rules: The Impact of the Statement of Changes HC733

The Home Secretary has introduced a Statement of Changes in Immigration Rules, bringing significant amendments affecting multiple routes. Below, we summarise the key changes and their implications.

art
  • 17 March 2025
  • Corporate and M&A

Deal Announcement: Clarkslegal’s corporate lawyers advise on the sale of Cryostore Limited to hVIVO plc

Clarkslegal’s corporate team is pleased to have advised Malcolm Wilkingson and the exiting shareholders on their multi-million pound sale of family-owned business, Cryostore Limited, to listed company hVIVO plc.

art
  • 10 March 2025
  • Corporate and M&A

Are You Sale Ready?

If you’re at the stage of considering the ‘What Next?’ for your business then it is probably time to consider whether your business is ready to go through a partial or complete sale process.

art
  • 10 March 2025
  • Commercial Real Estate

Etapes clés dans une transaction immobilière anglaise

On nous demande souvent quelles sont les étapes clés dans l’achat d’un local commercial ; voici le parcours typique d’un acheteur ou preneur.