Miss Otshudi was employed by Base Childrenswear Ltd as an in-house photographer for a little over three months in 2016. During her employment, she has complained of six acts of racial harassment meted out by different work colleagues.
Miss Otshudi was called into a meeting without notice and summarily dismissed on 19th May 2016. The Managing Director told Miss Otshudi she was being made redundant, but she thought the dismissal was because of her race.
Miss Otshudi appealed against her dismissal and submitted a letter of grievance. Base Childrenswear Ltd failed to respond to the grievance or the appeal.
Miss Otshudi brought a claim of racial harassment in the employment tribunal complaining of various acts of harassment because of race in respect of six incidents during her employment and from the fact and manner of her dismissal.
At the tribunal, Base Childrenswear changed its case regarding the reason Miss Otshudi was dismissed. They alleged it was due to suspected theft rather than redundancy, although this allegation had not been raised with her.
Employment Tribunal Decision
Finding that the claim in respect of matters arising during the course of her employment had been brought out of time, the employment tribunal upheld her complaint of racial harassment in respect of her dismissal.
The tribunal found that Miss Otshudi’s injury to feelings fell to be considered within the middle of the middle Vento band and made an award of £16,000.
It separately considered her claim for aggravated damages, finding that Base Childrenswear’s failure to respond to the grievance/appeal, its subsequent conduct of the employment tribunal litigation (its initial maintenance of the lie that she had been dismissed because of redundancy; its failure to respond to disclosure requests; its late alteration of its case to allege dismissal because of suspected theft) and its failure to apologise, had aggravated her injury to feelings, warranting an award of £5,000.
The tribunal then went on to make an uplift of 25% in respect of the breach of the ACAS Code given its failure to respond to the grievance/appeal.
Employment Appeal Tribunal
The Employment Appeal Tribunal upheld the appeal in respect of the aggravated damages only.