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Proving Discrimination


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How to prove discrimination

Having rock solid evidence of discrimination is important because it is up to you to  show facts from which the Employment Tribunal can deduce that there has been discrimination. Once this is done, then it is up to the employer to prove that there was no discrimination. If the employer is not able to do this to the Employment Tribunal’s satisfaction, then you will win your  case. This process in discrimination cases is called the shifting burden of proof. Basically, you must provide evidence of discrimination (the burden of proof). Once this is done, your employer must prove that the discrimination did not occur (the burden of proof shifts to the employer).

In the case of Base Childrenswear Ltd v Otshudi the Court of Appeal decided that the burden of proof had shifted when an employer gave a false reason for dismissing an employee.

Ms Otshudi did not have two years’ service. She was called into a meeting in May 2016 and dismissed for redundancy “out of the blue”. She claimed racial harassment in the Employment Tribunal. The employers defence was that she had not been racially harassed, rather she had been dismissed for economic reasons. Shortly before the hearing, the employer put in an amended defence, saying that the real reason for the dismissal was because Ms Otshudi  was suspected of theft. They said that they had only  called the dismissal a redundancy to avoid a potential confrontation. The Employment Tribunal said that they had racially harassed Ms Otshudi and found in her favour.  Base Childrenswear appealed to the Employment Tribunal and lost, so they appealed to the Court of Appeal.

In the Court of Appeal, Base Childrenswear argued that Ms Otshudi  had not proved facts from which the Employment Tribunal could decide that her dismissal was influenced by her race. The fact that she was black and had been dismissed was not sufficient for the burden of proof to shift to the employer. The Court of Appeal rejected this argument. The Court said that the employer had lied about the reason for dismissal and had persisted in that lie even once it was clear that it had failed in its aim of avoiding confrontation. This was enough for The Employment Tribunal to decide that the burden of proof had shifted to the employer. Once the burden of proof shifted, the Employment Tribunal was right to decide that Base Childrenswear had not proved that race played no part in their decision to dismiss.

If you are being discriminated against at work, use the Grievance Builder to raise a discrimination grievance or the ET1 Builder to write your Employment Tribunal Claim

See Also:

Race Discrimination

Direct Discrimination

Harassment

How to use the discrimination questionnaire

How to make a subject access request from your employer

Last Updated: [06/01/2022]