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
  • 01 June 2023
  • Employment

Facts employees should know about their personal data

We previously published an article on facts an employer should know about holding personal data, so it is only fair that we also write about the other side of the coin – facts employees should know as individuals whose personal data is held by their employer.

art
  • 01 June 2023
  • Immigration

What is the Immigration Skills Charge (ISC) and how much do you have to pay?

The Immigration Skills Charge (ISC) is a levy on companies who sponsor migrant workers. This levy was imposed on 6 April 2017. The Government states that the charge has been levied to contribute towards addressing the skills gap in the local economy.

art
  • 26 May 2023
  • Employment

Avoiding discrimination in flexible working requests

The right to request flexible working is currently available to employees with at least 26 weeks’ service and is set to be extended further under new Government reforms.

art
  • 25 May 2023
  • Corporate and M&A

Management Buyout – Top 5 things to consider

A management buyout is a financial transaction in which a member of the management team purchases the company from its registered owner. MBO’s usually occur in private companies in an effort to enhance profitability and simplify strategies.

art
  • 25 May 2023
  • Employment

Carer’s Leave Bill set to become law

On 19 May 2023, the Carer’s Leave Bill had its third reading in the House of Lords, and upon receiving Royal Assent, will become law. There is not yet a date for the implementation of this bill, however it is likely that this will happen relatively quickly upon receiving Royal Assent, so is definitely one to keep an eye on.

art
  • 18 May 2023
  • Immigration

Navigating SOC Codes

When it comes to UK immigration, understanding the intricacies of the system is vital. One significant aspect of the process revolves around Standard Occupational Classification (SOC) codes. SOC codes play a crucial role in determining the eligibility for an individual to apply for a work visa, assessing skill levels, and matching individuals to appropriate job roles.