A recent case called Base Childrenswear v Nadia Otshudi looked at the issue of race discrimination in the workplace.
The background of the case:
Base Childresnwear sell children’s clothes. Ms Otshudi was employed by them as a photographer, taking pictures of clothes for use on social media and in other sales materials. She was of black African ethnicity. Her work quality had been high. She was called into a meeting and told that she was being dismissed due to redundancy. The dismissal was completely out of the blue. Ms Otshudi claimed she was dismissed because of her race. She made a claim in the Employment Tribunal.
In the employer’s initial response to the claim which they filed at the Employment Tribunal, the employer said that the redundancy was “purely for financial/economic reasons”. They then amended their response to say that designer clothing had been hidden in the photograph room, with the implication that Ms Otshudi was going to steal them. The manager said they lied to Ms Otshudi about the reason, telling her it was redundancy, as they had wanted to “give a seemingly innocent reason in order to minimise the potential confrontation”.
For an employee to succeed in a claim of race discrimination, the following has to happen:
1. The employee has to prove a “prima facie” case of race discrimination. In other words, there is sufficient evidence to say that on the face of it there is a case unless it is proved otherwise.
2. If the employee can establish the above, the burden then falls on the employer to show that there was no discrimination.
A central issue in this case was whether Ms Otshudi had established sufficient grounds of race discrimination. Base Childrenswear argued Ms Otshudi had not established a case. They said that simply being black and being dismissed was not enough to establish a basic case.
The Court of Appeal (one of the highest courts in the land) looked at the issue. They said that the managers lying about the real reason for the dismissal established a case of race discrimination. This meant that the employer now had the burden of proof to show that race played no part in the dismissal. They found that the manager had a genuine belief that she was going to steal. However, they found that the belief was based on a stereotypical prejudice he held against black people (whether consciously or otherwise). Ms Otshudi therefore succeeded in her claim.
This case is significant for another reason. Ms Otshudi was awarded an uplift of 25% on her compensation. This was because of the employer’s failure to follow a fair procedure in relation to her appeal of the dismissal and her grievance. It is significant because Ms Otshudi did not have 2 years’ service. A lot of employers assume that if the employee does not have two years’ service, they don’t have to follow a procedure. In most cases this is correct. However, where there is discrimination, an uplift can be applied regardless of service.
The case gives a helpful insight into how Tribunals and Courts will assess claims of race discrimination and compensation. Here the Court had to carry out a careful examination of the facts and then draw conclusions from what they had seen and assess compensation accordingly.