Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Latest NewsEquality, diversity and inclusionRace discriminationEmployment tribunalsDiscrimination

Honesty is the best policy – lies and inferences in discrimination claims

by Charles Wynn-Evans 5 Nov 2019
by Charles Wynn-Evans 5 Nov 2019 Shutterstock
Shutterstock

The recent Court of Appeal decision in Base Childrenswear v Otshudi is a useful reminder of how the burden of proof provisions work in the Equality Act 2010 and the dangers for employers of dishonesty in dealing with employees and tribunal claims. Charles Wynn-Evans examines the case.

Ms Otshudi was made redundant from her position as a photographer with immediate effect by the employer’s managing director. Otshudi challenged this decision as she considered that her dismissal was due to her race. The MD dared her to repeat that allegation in front of her line manager – which she did – and the MD ensured that the written grievance which she subsequently lodged was not addressed.

Equality Act 2010

Burden of proof in discrimination cases

When Otshudi subsequently brought an employment tribunal claim for race discrimination, the employer’s defence initially was that the reason for its decision to dismiss Otshudi was purely financial.

However, the employer subsequently amended its defence to include a new reason for dismissal which it had previously not raised or relied upon. It suspected the employee of stealing stock as a result of finding some concealed items and the MD who informed Otshudi of her dismissal had lied about the true reason for her dismissal to minimise potential confrontation and “soften the blow”.

The employment tribunal decided that race was a factor in the employee’s dismissal. In so doing it applied the two-stage burden of proof provisions of section 136 of the Equality Act 2010. This provides that, if at the first stage the employee demonstrates a prima facie case of discrimination, the burden of proof then shifts to the employer to prove that it has not committed an act of unlawful discrimination.

In this case, at the first stage, the employment tribunal accepted that the burden of proof shifted to the employer – to explain its conduct and that its actions were in no way because of the employee’s race – because Otshudi had shown that there were facts from which the tribunal could conclude, absent any other explanation, that her dismissal was because of her race.

The employment tribunal accepted that this prima facie case was established on the basis of the MD’s “strong and intimidatory” response to being challenged about the true reason for the claimant’s dismissal when he knew he had given a false reason, his refusal to address the employee’s grievance and his persisting in maintaining that redundancy was the reason for dismissal long after relying on that explanation had failed to avoid the confrontation it was designed to.

At the second stage the employment tribunal did not accept the employer’s argument that the employee’s dismissal had nothing to do with her race. The employment tribunal rejected the employer’s argument that Otshudi’s dismissal was actually because of the suspected theft. The basis for this conclusion was the weakness of the employer’s evidence in support of that allegation, the fact that it had “rushed to judgment” and its considerable delay before changing its defence.

The Employment Appeal Tribunal rejected an appeal, taking the view that the employer’s false explanation of redundancy was capable of shifting the burden of proof and that the employment tribunal was entitled to find that the employer’s explanation of suspected theft was either fabricated and/or racially tinged.

In rejecting a further appeal, the Court of Appeal made clear that employment tribunals should not draw inferences of potential discrimination too readily just from the fact that an employer has lied. In this case, however, the employer had persisted with its lie long after it was clear that it had failed to soften the blow.

The employment tribunal was entitled to infer that the MD had been covering up a dismissal related to the employee’s race and that there was a racial element which contributed to or caused the dismissal, even though it did not explicitly find, as the Court of Appeal thought was implicit in its judgment, that the MD had made stereotypical assumptions (consciously or subconsciously) about the honesty of the claimant because of her race.

It is hardly a surprise that lying to an employee about the reason for his or her dismissal will not exactly endear the employer to the employee or the employment tribunal if the true position becomes clear.

The Otshudi decision does make clear that dishonesty about the reason for its actions will not, in the context of a discrimination claim, automatically shift the burden of proof to the employer and that the context needs close examination. However, it does emphasise the need for employers to be able to substantiate the non-discriminatory basis for their decisions with cogent and contemporaneous evidence and highlights the damage which can be done to an employer’s defence of a discrimination claim by being found to have adopted a misleading or dishonest position.

Avatar
Charles Wynn-Evans

Charles Wynn-Evans is a partner at Dechert LLP.

previous post
Mental health first aid benefits to be explored in academic study
next post
Union denies postal strikes will disrupt election

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

You may also like

Aspers casino cashier excluded by colleagues wins £75k...

23 May 2022

BNP Paribas banker accused of ’emotional terrorism’ wins...

19 May 2022

Bald move: Tribunal was right in sex-related harassment...

17 May 2022

Employment tribunal: use of word ‘bald’ can amount...

13 May 2022

Solicitor unfairly dismissed during cancer recovery awarded £17k

6 May 2022

Woman wins £15k payout following director’s treatment during...

5 May 2022

Steep rise in employment tribunal claims over neurodiversity...

2 May 2022

Philosophical belief: barrister’s tribunal claim against Stonewall begins

26 Apr 2022

Disabled worker discriminated against by hot-desking policy

21 Apr 2022

Record £850k payout for teacher assaulted by pupil

14 Apr 2022
  • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+