Ignoring Allegations of Discrimination: Still No Laughing Matter
As you are aware, a claim for discrimination of any sort can be disastrous for a company. The recent case of Otshudi v Base Childrenswear Ltd evidences this and demonstrates the consequences of bad procedures and practice. The facts of the case are as follows:
- An employee was summarily dismissed and the employee alleged it was due to her race.
- Two other managers were brought into a meeting to challenge her allegations that the redundancy was due to her race which led her to feel intimidated.
- The employee appealed both the decision to terminate her employment and also lodged a grievance which the organisation chose to ignore.
- They also ignored ACAS early conciliation requests.
- The organisation failed to respond to disclosure requests from the tribunal.
- The organisation continued to state that the reason for termination was redundancy and then changed its mind to say it was due to the fact that the employee was suspected of theft.
- The tribunal upheld her complaint of racial harassment in respect of her dismissal.
- The ex-employee was awarded substantial damages.
From our perspective in protecting our clients, there is nothing new to learn from this ruling. On a daily basis, we speak to clients and ask them if there are any protected characteristics that we need to be aware of when we are discussing taking action with an employee.
Furthermore, we always advise that letters must give a right to appeal and should this be received then this appeal would be heard by two independent members of staff of more seniority than those who made the original decision.
- In essence, taking the above case into consideration, our clients would have likely been advised the following:
- The investigation into the theft (if a genuine belief) should have been formally investigated and a disciplinary hearing heard prior to a termination.
- If it was a genuine redundancy situation then we would have advised formal consultations and considerations before any decision would have been made.
- If this employee was made redundant and both lodged a grievance and appealed the termination then these hearings would have been heard, by separate panels with formal outcomes delivered.
We would have advised full cooperation with the ACAS conciliation process and our dedicated tribunals team would have assisted with court submissions and disclosures.
Only the judge of this case could answer this with sound conviction, but if this organisation had been one of our clients and following instructions (and providing our investigations did not find any discrimination of course) then perhaps the outcome may have been different.