Discrimination by Inference

Summary

Discrimination by Inference. Nadia Otshudi worked for Base Childrenswear Limited from 16 February 2016 up until she was dismissed on 19 May 2016. Her former employer, Mr Granditer had told her that she was being dismissed for redundancy. Nadia stated that she did not believe the redundancy reason was true and claimed she was a victim of discrimination.

Mr Granditer claimed he was so upset and disappointed by this allegation that he dared her to repeat the statement. She was told to collect her belongings and leave. Nadia lodged a grievance five days later, claiming her dismissal was discriminatory. Mr Granditer chose to ignore the grievance.

Nadia lodged her claim to the tribunal and Mr Granditer lodged his defence claiming the redundancy was made “purely for financial/economic reasons.” The claim was out of time, however the tribunal allowed an extension for 1 alleged incident of racial harassment. About 15 months later in August 2017, roughly three weeks before the hearing, solicitors instructed by Mr Granditer amended his defence to grounds of resistance.

A new explanation had been presented. Mr Granditer claimed that two of his staff members believed they saw Nadia attempting theft of clothes whilst working. There was no investigation and Mr Granditer dismissed Nadia by using redundancy to minimise the potential confrontation. The tribunal found in favour of Nadia and she was awarded £27,505.29.

Facts of the case

Mr Granditer appealed to the Employment Appeal Tribunal on 31 August 2018 but HH Judge Stacey dismissed this. Mr Granditer now appeals in the Court of Appeal (Civil Division.) The issue here is to decide whether the decision of the Employment Tribunal was legally flawed. Was it unreasonable for the court to draw an inference that the dismissal was racially-motivated?

The tribunal took into account that Mr Granditer had no background of treating Nadia unfairly. Nadia also requested to work separately and Mr Granditer had given her permission to do so. It was even agreed that Nadia was a talented photographer. The difficulty was trying to determine whether there was any link between Nadia’s race and her dismissal.

Ratio Decidendi

With all facts considered, it was held that it was appropriate to draw the inference that there was a racial element to the dismissal. This is because there were too many concerns within Mr Granditer’s argument. Mr Granditer only mentioned the suspected theft 3 weeks before the hearing. The false explanation to avoid confrontation ceased to be operative once court proceedings began. He dared Nadia to repeat her allegation of discrimination, which was earlier described as an attempt to intimidate Nadia.

No investigation was carried out and there was little evidence to prove an attempted theft. Mr Granditer also chose to ignore the grievance. Mr Granditer failed to prove that the protected characteristic had no link to the dismissal, so it could be inferred that Mr Granditer had reached his conclusion that attempted theft had taken place due to Nadia’s race. The appeal was dismissed and the tribunal’s decision was upheld. 

Contact Information

If discrimination by inference is something that you need help with, Frantz Gregory & Co can support you in bringing and/or defending a claim with your best interests in mind. Our main focus is resolution, so get in touch with us if you need advice, help with negotiations or even assistance with legal proceedings. You can find us on LinkedInFacebook and Twitter, or you speak to a member of our team Monday to Friday, 9 am to 5 pm on 01482 379582.

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