• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]ploymentlaw.co.uk
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • David Jones
    • Debbie Poole
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Better to be honest – discrimination and the burden of proof

28 October 2019

Scales of Justice image

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.

If you are an employer dealing with a Tribunal claim, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • Can long Covid be a disability? 29th June 2022
  • Employer unfairly counted disability-related absences when dismissing 29th June 2022
  • Did an Employment Tribunal correctly award an uplift for failure to follow the ACAS Code in a sham redundancy case? 29th June 2022
  • Without prejudice negotiations – what is unambiguous impropriety? 29th June 2022
  • Does referring to a man’s baldness at work amount to sexual harassment? 25th May 2022
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2022

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only