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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.

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