September 25, 2013

Not many people like to admit to being completely incompetent.  But according to a recent decision by the Employment Appeal Tribunal in the case of Osoba v The Chief Constable of the Hertfordshire Constabulary, incompetence can sometimes provide a perfectly legitimate defence for an employer facing a discrimination claim. The case involved a police officer called Mr Osaba.  After being made redundant, he brought a claim for age discrimination alleging that the selection process had been deliberately manipulated.  The officer who carried out the selection exercise came in for a bit of a battering at the tribunal who described the process as “inconsistent”, “shambolic” and “lacking in competence.”  Nevertheless, the tribunal dismissed the claim because it was satisfied that there had been no discriminatory motive for the way in which the selection process had been carried out. Mr Osaba appealed the EAT arguing that the employer had failed to put forward an explanation for why the selection process was so botched.  As a result, he argued that it had failed to discharge the burden of proving that his redundancy was not discriminatory and that his claim should therefore have been upheld. The EAT, however, decided that not every mistake needs to have an explanation.  Instead it said that there may be cases where there is nothing more to say than “Well, I got it wrong and I take responsibility for that.”  Therefore, the fact that the employer was unable to come up with a decent excuse for making such a mess of things was not enough to draw an inference of discrimination. The moral of the story is that, when it comes to defending discrimination claims, admitting ones mistakes can sometimes be the best approach.  Cobbling together an excuse which does not stand up to scrutiny runs the risk that the tribunal will conclude that the correct explanation is because you are trying to cover up an act of discrimination. For further information, please contact Marcus Rowland (marcus.rowland@wiggin.co.uk / 0207 927 9677) or Seth Roe (seth.roe@wiggin.co.uk / 01242 631 262)