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Compensation uplift for one-off act of racial discrimination

View profile for Emily Yeardley
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In the case of Base Childrenswear Ltd v Otshudi, the Employment Appeal Tribunal (EAT) has held that a Tribunal is not confined to making an award for injury to feelings from the lower band of the Vento bands where there is a one-off act of racial harassment. The bands are not prescriptive and the question that the Tribunal is required to consider is seriousness and harm caused to the Claimant by each individual act of discrimination. 

In this case, Otshudi worked as an in-house photographer. She was dismissed by reason of alleged redundancy after only three months. She questioned whether the real reason for her dismissal was her race as she had already complained about harassment by her colleagues. She felt intimidated and became upset during a meeting with the Managing Director. Her appeal against her dismissal and grievance were ignored. 

The employer maintained its position that this was a redundancy dismissal at Tribunal. However, it later alleged that she had been dismissed for stealing, although the allegations were unfounded. As a result, the Tribunal held that these facts were sufficient to infer discrimination. The Tribunal awarded £16,000 for injury to feelings, £5,000 for aggravated damages and £3,000 for personal injury for the depression suffered over three months.

The Employment Tribunal also ordered an uplift to the compensation awarded to Otshudi as a result of the employer's failure to follow the ACAS Code of Practice in respect of her grievance. Otshudi raised her grievance following her dismissal. This is the first case which suggests that the ACAS Code of Practice applies to former employees. Employers should therefore be mindful that its actions post-termination will be subject to the scrutiny of the Tribunal and may impact upon the level of compensation awarded.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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