Race Discrimination: Burden of proof shifted to employer

In Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648, the claimant worked for the employer as a photographer until she was summarily dismissed. She is a black African from the Democratic Republic of the Congo. She brought several claims but only one (racial harassment) was subsequently pursued. Whilst Ms Otshudi had been told she had been dismissed for redundancy, her employer later admitted in the ET3 it had suspected her of stealing, and had told her it was redundancy to minimise confrontation.

However, the tribunal and the EAT found that race had been a factor in Ms Otshudi’s dismissal, because although there may have been a genuinely held belief that she was stealing, this belief stemmed from a stereotypical prejudice against black people (whether he had been aware of it or not). The Court of Appeal went a stage further to consider s.136 of the Equality Act – applying the burden of proof test. In this case, the manager had lied about the real reason for the dismissal and this had formed a prima facie case of race discrimination. The burden of proof therefore shifted to the employer, who had provided no evidence that race played no part in their decision-making. For this reason, the appeal was dismissed.

Published: 24 October 2019

Article Sections: Discrimination

Tags: burden of proof, stereotypical prejudice, race discrimination


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