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Race Discrimination: Burden of Proof

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If a manager, lies in good faith, about the reason for dismissal, is that enough to shift the burden of proof in a discrimination case?

Yes, held the Court of Appeal in Base Childrenswear v Otshudi.

Ms Otshudi worked for Base Childrenswear as a photographer. She was made redundant and she believed this was because of her race. She brought a tribunal claim.

The reason for the Claimant’s redundancy was, according the employer in its ET3, "purely financial". The employer later amended its ET3 to include a new reason, notably that items of clothing were found "concealed" in the photography room, implying that she was going to steal them. The manager lied to her about the reason "to minimise potential confrontation".

Both the tribunal and the EAT found that race was a factor in her dismissal. The Court of Appeal, in assessing whether there had been an error of law, applied the s.136 burden of proof test to the reasoning of the initial judgment, despite it not being referred to by the tribunal.

The Court of Appeal held that the 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 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, this was based on a stereotypical prejudice he held (consciously or otherwise) against black people. The appeal was accordingly dismissed.

Thanks to Oscar Davies, pupil at Outer Temple Chambers, for preparing this case summary.