Base Childrenswear Ltd v Nadia Otshudi
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Newey,Lord Justice Haddon-Cave |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1648 |
| Date | 09 October 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/3017 |
[2019] EWCA Civ 1648
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HHJ STACEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal, Civil Division))
Lord Justice Newey
and
Lord Justice Haddon-Cave
Case No: A2/2018/3017
Mr Daniel Matovu (instructed by Martin Searle Solicitors) for the Appellant
Mr Changez Khan (instructed by Southwark Law Centre) for the Respondent
Hearing date: 4 th July 2019
Approved Judgment
INTRODUCTION
The Respondent in this appeal, the Claimant in the original proceedings, was employed by the Appellant company, the original Respondent, between 16 February 2016 and her summary dismissal on 19 May 2016. She is of black African ethnicity: she is in fact from the Democratic Republic of Congo. To avoid confusion I will refer to the parties as they were below.
On 19 September 2016 the Claimant presented a complaint against the Respondent in the Employment Tribunal raising a number of claims. The complaint was heard at the East London Hearing Centre, before Employment Judge Hyde and lay members, over four days in September 2017 and another day in November. Both parties were represented by counsel. Partly before the hearing and partly in the course of it a number of her claims (including a claim of unfair dismissal, for which she had insufficient service) were withdrawn, and the only remaining claims concerned seven alleged incidents of racial harassment contrary to section 40 (read with section 26) of the Equality Act 2010: the last of these incidents was based on her dismissal. The claims were out of time, but the Tribunal was invited to extend time pursuant to section 123 (1) (b) of the Act.
By a Judgment and Reasons sent to the parties on 21 December 2017 the Tribunal declined to extend time in respect of six of the claims of harassment. However, it did so in relation to the claim based on the Claimant's dismissal and found the claim proved. At a subsequent hearing she was awarded compensation in the sum of £27,505.29, plus interest and a 25% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. The Tribunal also made an order that the Respondent pay her a sum in respect of her preparation time for the claim on which she succeeded.
The Respondent appealed to the Employment Appeal Tribunal against the liability decision, but on 31 August 2018 it was dismissed by HH Judge Stacey, sitting alone.
The Respondent now appeals to this Court with the permission of Bean LJ.
The Respondent was represented before us by Mr Daniel Matovu and the Claimant by Mr Changez Khan. Mr Matovu has appeared in both tribunals below. Mr Khan appeared in the EAT but not the ET. The submissions of both counsel were of high quality.
THE FACTS AND THE PROCEDURAL HISTORY
The Respondent's business is selling childrenswear. The Claimant was employed as a photographer, taking pictures of clothes for use on social media and in other sales materials. The evidence was that in the short period before her dismissal the quality of her work was regarded as high.
On 19 May 2016 the Claimant was called by the Managing Director, Mr Granditer, to his office. Mr Moore, one of the managers, was present. Mr Granditer told her that she was being dismissed for redundancy. The dismissal was completely out of the blue. The Claimant told Mr Granditer that she did not believe that redundancy was the true reason. She said that she believed that she was the victim of discrimination by others in the team that she worked with and that that was the real reason why she was being dismissed. Mr Granditer responded by calling in another manager, Mr Potier, whom he asked to confirm that there was a redundancy situation, which he did. Mr Granditer said that he was very upset by the allegation of discrimination and disappointed that the Claimant had made it. He said that he dared her to repeat it, which the Tribunal subsequently characterised as an attempt to “intimidate” her into taking no further action (see para. 158 of the Reasons). She was then asked to collect her belongings and leave.
Five days later, the Claimant lodged a grievance complaining that her dismissal was discriminatory, and also of the prior treatment by colleagues to which she had referred on the occasion of her dismissal. Mr Granditer decided that no response should be made to the grievance.
When the Claimant lodged her ET1 she complained, as I have said, of her dismissal as well as other matters, saying that it was “both unfair and a discriminatory act”. The Respondent's ET3, which seems to have been drafted by Mr Granditer without legal assistance, said that she was made redundant “purely for financial/economic reasons”. His response included what the Tribunal (at para. 147 of the Reasons) described as “a strident assertion” that he had no racial motivation, which he described as “a vile accusation”.
At the interlocutory stages of the proceedings the Claimant pressed for disclosure of documents relating to the supposed redundancy. In August 2017, about three weeks before the hearing, solicitors instructed by the Respondent lodged amended grounds of resistance. These raised for the first time a wholly new explanation for the dismissal. What was pleaded (as slightly amplified in the subsequent witness statements) was that earlier on the day of the dismissal Mr Moore and a Mr Kirby, a warehouse assistant employed by the Respondent, found “concealed” in the photography department (a space which it was said was only ever used by the Claimant) a crate containing five items of new designer clothing. Clothing required for the purpose of a photoshoot should have been in the stockroom and there was no reason why it should have been left in the photography department. They had left the clothes out on the workbench and Mr Moore went to tell Mr Granditer. While he was doing so Mr Kirby saw the Claimant taking what he believed to be the same clothes from the photography department to the stockroom, while talking on her phone in French, in what appeared to him to be an agitated and suspicious manner. He came and told Mr Granditer and Mr Moore. It seemed to them that the Claimant must have been responsible for taking the clothes from the stockroom to the photography department in the first place with a view to stealing them. Despite the absence of any investigation Mr Granditer decided that she was guilty of theft and should be dismissed forthwith, but that he would tell her that it was for redundancy. As pleaded at para. 31 of the Amended Grounds:
“Whilst it is admitted that redundancy was not the true reason for terminating the Claimant's employment, it was Mr Granditer's preference to give a seemingly innocent reason in order to minimise the potential confrontation. Mr Granditer was also mindful that whilst Mr Moore and Mr Kirby had presented very persuasive evidence, he had not witnessed the attempted theft itself or seen any conclusive evidence. … [R]ace had absolutely no bearing in Mr Granditer's decision.”
The Respondent was given permission to amend the grounds of resistance, and the case proceeded in the Employment Tribunal on the basis of the amended case. Not only Mr Granditer but also Mr Moore and Mr Kirby gave oral evidence at the hearing in support of the Respondent's case that the Claimant had been suspected of theft.
THE BACKGROUND LAW
Section 40 (1) of the 2010 Act reads (so far as material):
“An employer (A) must not, in relation to employment by A, harass a person (B) –
(a) who is an employee of A's;
(b) …”
“Harassment” is defined in section 26 of the Act. For present purposes I need only set out sub-section (1), which reads:
“A person (A) harasses another (B) if –
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of –
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”
The relevant protected characteristics are defined at sub-section (5) and include race. The phrase “related to a protected characteristic” has caused some problems in other cases, but for present purposes it is enough to note that conduct will be “related to” race if the claimant's race was a significant part of the mental processes (conscious or unconscious) of the person responsible – as it is often put, of their “motivation”.
I am bound to say that I find it odd that the present claim has been characterised as one of harassment. The natural way of bringing a claim for a discriminatory dismissal is under section 39 of the 2010 Act, which proscribes various kinds of detriment caused to an employee because of a protected characteristic, including dismissal. Neither counsel was able to explain definitively why that was not the course taken here, but Mr Khan said that it was his understanding that at a case management hearing in the ET the Claimant, who was not at that time represented, had withdrawn her claims of racial discrimination but that it had apparently been accepted that she was intending to complain of her dismissal as an act of harassment. However, no point was taken on this by the Respondent at the hearing, and even if it had been I have no doubt that the Tribunal would have wished to consider the substance of the claim. Accordingly I say nothing more about it.
Section 136 of the 2010 Act is headed “Burden of Proof”. It reads, so far as material, as follows:
“(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the...
To continue reading
Request your trial
-
Mr J Walker v The Governors of Arnhem Wharf Primary School and The Mayor and Burgesses of the London Borough of Tower Hamlets: 3202034/2018
...EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Most recently in Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648 Lord Justice Underhill reviewed the case law and 17. Section 136 implements EU Directives 2000/78 (article 10) and 2006/54 (article 19), ......
-
Ms A Lacatus v Barclays Execution Services Ltd and others: 3201295/2019 and 3201137/2020
...EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Most recently in Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648 Lord Justice Underhill reviewed the case law and Case Numbers: 3201295/2019 & 3201137/2020 V 17. Section 136 implements EU Directives 200......
-
Mrs Onuoha v Croydon Health Services NHS Trust: 2300516/2019
...not contravene the provision. 236. The effect of these provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 at ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.2 He explained the two stages o......
-
Ms A Newman v London Borough of Waltham Forest: 3202937/2019
...EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Most recently in Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648 Lord Justice Underhill reviewed the case law and 17. Section 136 implements EU Directives 2000/78 (article 10) and 2006/54 (article 19), ......