15th July 2019
This appeal decision in Otshudi v Base Childrenswear Ltd (UKEAT/0267/19), shows just how sharp the teeth of the law can be in cases of discrimination especially where the employer has shown a disregard for process. A worthwhile read for all employers and a cautionary tale on how not to do things.
In a discrimination claim, compensation for ‘injury to feelings’ falls into one of three ‘Vento’ bands: lower, middle or upper. Isolated, ‘one-off’ occurrences of discrimination tend to fall into the lower Vento band (which is currently between £900 to £8,800) but, as this case demonstrates, that will not always be the case.
Ms Otshudi worked as an in-house photographer for Base Childrenswear Ltd for just over 3 months before she was dismissed, supposedly for redundancy. The MD told Ms Otshudi of her redundancy which she immediately questioned, asking him whether the dismissal was actually to do with her race. The MD then called two other managers into the meeting and challenged her suggestion of discrimination. She felt intimidated and became upset before being told to pack her things and leave.
She submitted a grievance and appealed against her dismissal, both of which were completely ignored by the company. She then commenced ACAS Early Conciliation which the company also failed to engage with.
During her subsequent Employment Tribunal (ET) claim for race discrimination, the company failed to respond to disclosure requests. It maintained that the reason for the dismissal was redundancy until, shortly before the final hearing, it altered its response to allege that the reason for dismissal was actually that Ms Otshudi was suspected of theft. These theft allegations had not been raised at all prior to this.
At the Tribunal hearing, the theft allegations were put to Ms Otshudi in cross-examination, but the Tribunal found that the company was unable to provide a satisfactory, non-discriminatory explanation for Ms Otshudi’s dismissal. In the absence of such an explanation for the treatment, it found that the dismissal was as a result of race discrimination. The Tribunal noted that Ms Otshudi had been good at her job, had spent a lot of time investing in her career and saw a long-term future with the company. Her dismissal had been completely unexpected and, combined with the distressing manner of her dismissal, had led her to suffer a depressive episode for around 3 months.
The ET made the following awards to Ms Otshudi:
The company appealed to the EAT on the grounds that:
The EAT dismissed the appeal save to reduce the £5,000 aggravated damages award by £1,000 to reflect any ‘double-counting’ between that award and the 25% uplift.
It held that the Tribunal had been right to award the injury to feelings award in the middle band bearing in mind the circumstances of the case. It specifically rejected the company’s assertion that a ‘one-off’ act of discrimination should fall automatically into the lower ‘Vento’ band. It held, when looking at the case in its totality, that the awards made were not manifestly excessive and that the Tribunal had been correct to focus on the impact of the discrimination on the individual claimant.
If ever a case highlighted how expensive and damaging discrimination claims can be for employers, this is it. One struggles to have any sympathy with the employer in this case and its blatant disregard of procedure was duly punished both by an aggravated damages award and the maximum possible 25% uplift in compensation.
The key ‘take-away’ points from the decision are:
It also goes without saying that the negative publicity from decisions such as these can often be more damaging than the pure financial cost.
If you have any questions about this case please contact David Smedley or Andrew Rayment.