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

art
  • 16 May 2024
  • Immigration

What Employers need to know about Biometric Residence Permits

Biometric Residence Permits (BRPs) are biometric immigration documents that are issued to non-EEA nationals and EEA nationals, who have been granted permission to stay in the UK.

art
  • 14 May 2024

Clarkslegal’s London team moves to new Chancery Lane office

The London office of Clarkslegal has relocated to Chancery House, on Chancery Lane. The staff is enthusiastic about the relocation because Chancery Lane has a longstanding association with the legal profession in London.

art
  • 10 May 2024
  • Employment

New duty on employers to prevent sexual harassment – coming October 2024

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force in October 2024.

art
  • 09 May 2024
  • Employment

Labour Party Employment Law Proposals – Promises of further consultations and a softer approach

The Prime Minister recently announced a raft of changes, to be implemented in the next parliament, aimed at reducing the number of people who are economically inactive due to illness.

art
  • 09 May 2024
  • Corporate and M&A

Navigating corporate transparency: ECCTA reforms series – part 1

The Economic Crime and Corporate Transparency Act 2023 (ECCTA) received Royal Assent in October 2023 and marked a pivotal moment in corporate governance and transparency.

art
  • 07 May 2024
  • Employment

Changes to TUPE rules from 1 July 2024

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) aim to safeguard employees’ rights on the transfer of a business or on the change of a service.