It is relatively unusual for a claimant to be able to point to direct evidence of discrimination. This is why the shifting burden of proof is so important – if a claimant can show facts from which a court or tribunal could decide that discrimination has occurred, the burden passes to the respondent to show that it did not. If the respondent cannot do this, the claimant succeeds in their claim. In 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 race harassment (although the claim was more obviously one of direct discrimination, nothing turned on this) and the employer's defence indicated that she had been dismissed for financial/ economic reasons. However, shortly before the hearing, the employer put in an amended defence, saying that the real reason for the dismissal was because it suspected the claimant of theft. It had called the dismissal a redundancy to avoid a potential confrontation. The employment tribunal upheld the claim but did not expressly refer to the burden of proof. The employer's appeal to the EAT failed, and it appealed to the Court of Appeal.
The employer argued that the employee had not proved facts from which the tribunal could decide that her dismissal was influenced by her race. The fact that the employee 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. While it might not have reached the same conclusion as the tribunal, 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 a sufficient basis for the tribunal to decide, in effect, that the burden of proof had shifted to the employer. The Court of Appeal could not overturn that decision as it was one that was reasonably open to the tribunal on the facts. Once the burden of proof shifted, the tribunal was also entitled to conclude that the employer had failed to show that race played no part in its decision to dismiss.