Discrimination Law in the Court of Appeal: Changez Khan succeeds in Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648

Published: 10/10/2019 | Employment, News, Newsletters

The Court of Appeal (Underhill, Newey, Haddon-Cave LLJ) has delivered its judgment in the case of Otshudi. It considers the vexed issue of inferences in discrimination law. When can they be drawn? How can they be rebutted? It is the latest in a series of decisions at Court of Appeal level on s.136 of the Equality Act 2010 and the so-called shifting burden of proof.

Changez acted for the employee, a successful fashion photographer. She was dismissed under the pretext of “redundancy”. Shortly before trial her employer abandoned this defence and argued its true reason for dismissing her had been “suspected theft”. The ET was not satisfied with either explanation. There was little direct or overt evidence of discrimination (as is commonly the case). Even so, the ET considered there was a proper basis for inferring a prima facie case that the employee’s race had been a factor in her dismissal. The employer’s evasiveness was a key factor. The burden therefore shifted to the employer to provide a race-free explanation. It could not and the claim succeeded.

The employer challenged the decision twice on appeal: in the EAT (HHJ Stacey) and then the Court of Appeal. Changez successfully represented the employee on both appeals and the ET’s decision was upheld.

The Court of Appeal’s judgement can be read here.

Changez has a particular specialism in employment law including discrimination cases. This is the second time in a year he has succeeded in the Court of Appeal (following Morris v Metrolink [2018] EWCA Civ 1358 last year).

Author: Changez Khan Farrars (chambers@farrarsbuilding.co.uk)