Better to be honest – discrimination and the burden of proof

28 October 2019

In discrimination cases, the burden of proof is a 2 stage process.  First, the claimant has to show a ‘prima facie’ case (in plain English, a basic case enough to establish a presumption) that the respondent has acted in a discriminatory manner. Once that has been established, the burden of proof shifts to the respondent to show that their actions were not of a discriminatory nature.  So, for example, if an older person is made redundant, then provided they can show that the people in the redundancy pool who were retained in employment were younger, they have established that prima facie case, and the burden would then shift to the employer to show that the reason that the claimant was selected for redundancy was not because of their age, but rather for other reasons, eg performance, attendance, skills etc.

This principle was illustrated in the recent Court of Appeal case of Base Childrenswear v Otshudi.  Ms Otshudi worked for Base Childrenswear as a photographer. She was made redundant and she believed that this was because of her race. She brought an Employment Tribunal claim.  Ms Otshudi was of an ethnic minority background, so as she had been made redundant she had made out the prima facie case that she had been discriminated against.  The burden of proof therefore shifted to the employer.

According the employer in its response to the Tribunal claim (ET3), the reason for the redundancy was purely financial. However, the employer later amended its ET3 to include a new reason, namely that items of clothing had been found “concealed” in the photography room, implying that Ms Otshudi was intending to steal them. Ms Otshudi’s manager said he had not told her this as he wanted “to minimise potential confrontation”.  The Employment Tribunal and the Employment Appeal Tribunal both found that race had been a factor in the decision to dismiss her.  The employer appealed to the Court of Appeal.

The Court of Appeal, in assessing whether there had been an error of law by the Tribunal, applied the burden of proof test to the reasoning of the initial judgment, despite it not being referred to by the Tribunal. They held that Ms Otshudi’s manager’s persistence in lying about the real reason for the Claimant’s dismissal formed the basis of a prima facie case of race discrimination, thus shifting the burden of proof to the employer.  It then held that the employer had failed to show that race played no part in the claimant’s dismissal. Whilst the manager may have had a genuine belief that she was stealing, they felt this was based on a stereotypical prejudice he held, consciously or otherwise, against black people. The appeal was accordingly dismissed.

The case is a good illustration of the dangers of shying away from the issues.  Over the years we have had several employers suggest to us that making a person redundant would be “nicer” that confronting them about their performance or their behaviour, but by doing that in this case, the manager left the company exposed to a potentially very costly outcome.