Culture of disbelief? Why race discrimination claims fail in the Employment Tribunal

January 24, 2013 — Comment

Written by David Renton

As the European Court partially vindicates employees’ rights to manifest their religion at work, and with coalition measures set to make access to justice more difficult for all employees, employment lawyer, historian and activist David Renton discusses the added difficulties for those bringing race discrimination claims.

On 15 January, the European Court upheld the claim of Nadia Eweida, a member of British Airways check-in staff, that preventing her from wearing her Christian cross round her neck was a disproportionate interference with her right to religious expression. David Cameron had said that if her claim was not upheld, he would change the law. Cameron’s support was of Ms Eweida as a Christian rather than for employee rights; 2013 is set to be the year of a perfect storm of measures designed to protect employers from legal claims by workers. Following last year’s doubling of the ‘threshold’ period for unfair dismissal claims from one year to two, this year will see the abolition of legal advice and assistance for Employment Tribunal claims, the slashing of the maximum compensation award for unfair dismissal from £72,000 to a maximum of one year’s wages, new rules allowing employment judges to strike claims out at any stage, and the introduction of fees of up to £1,200 to bring claims.

Employees (and unsuccessful job applicants) claiming unlawful discrimination  in hiring, firing and workplace conditions will be exempted  from some of these measures – they will still be eligible for legal advice and assistance, for example. But discrimination cases are the most difficult cases to win: Ministry of Justice figures show that in year ending 30 March 2011, 9,000 unfair dismissal cases reached a final hearing, at which 47 per cent (4,200) succeeded, while of the six types of discrimination claim, claimants had the best prospects of success in sex discrimination cases, 37 per cent (290 out of 780 final hearings).

Race and religious discrimination claims hardest

The odds of success in a race discrimination claim were, in 2011, less than half those in sex discrimination cases, 16 per cent (150 out of 950). The poor prospects of success in race discrimination claims are an under-acknowledged blemish of the Employment Tribunal system. Claims for religious discrimination are almost as difficult to win, at 18 per cent (27 of 147) (it is worth noting that far more claims based on religion or belief are brought by Muslims and Sikhs than by Christians).

Table: claims heard at ET (by type of case and outcome) 2010-2011

Full Hearings (number) Successful (number) Chance of success
Unlawful deduction of wages 7,500 5,400 72%
Unfair dismissal 9,000 4,200 47%
Discrimination
Sex 780 290 37%
Sexual orientation 84 22 26%
Disability 830 190 23%
Age 410 90 22%
Religion or belief 147 27 18%
Race 950 150 16%

(source: Employment Tribunals and EAT Statistics, 2010-2011 (London: HM Courts & Tribunals Service, 2011), p.8)

Before asking why race claims do so badly it is worth acknowledging that in any exercise of this sort it is unlikely that the prospects of success would be exactly the same in every single type of case before the Tribunal. One type of case or another will inevitably come bottom of the pile.

Moreover, wages claims (success rate 72 per cent) are obviously relatively easy to win. Workers bring wages claims to enforce simple and verifiable claims, for example, that they were paid but less than the minimum wage, or that they did the work but were never paid. They are simple hearings for relatively small sums of money, are document- rather than witness-based, and the employers are less likely than usual to engage lawyers, and surprisingly often do not even attend court. Employment Judges see no barrier to determining wages cases in claimants’ favour.

But other parts of the comparison are more surprising. It would be more obvious to assume for example that race claimants should have similar prospects to sex claimants, as these are the two longest-established types of discrimination prohibited by law, dating back to 1975 and 1976, and the courts should be more familiar with either than with sexual orientation or religion claims, which have been enforceable only since 2003.

From the internal logic of the law, it might be predicted that age claims were especially difficult, as in age claims (unlike all other categories of discrimination) the discriminator has a justification defence to direct discrimination.

The courts have occasionally noticed the disparity. Race discrimination was described 25 years ago by Lord Justice Mummery as ‘the most difficult kind of case’ that the Tribunals have to decide: ‘The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing.’[1]

Give the importance of race cases, to the system as a whole, you might have expected that judges would be especially careful to make sure that courts focussed on the right legal questions. But that isn’t how many race cases work.

Common-sense assumptions misplaced

When speaking to non-lawyers about discrimination law, they will often make guesses about what the law says. Their guesses reflect the common-sense values of society as a whole. So, it is often assumed that an individual should only be found to have done an act of race discrimination if they clearly intended to discriminate. Moreover, it is assumed that any person associated with an act of race discrimination must be ‘a racist’. This common-sense understanding is applied in reverse; where an individual does not display clear and evident signs of ‘racism’ in all their ordinary day-to-day behaviour then by definition they are incapable of having committed any act of discrimination. (If you want an illustration of how much this matters, look at the two recent cases against the Premiership footballers John Terry and Luis Suarez. Both defence teams went to enormous lengths to obtain findings that their client was ‘not a racist’, a legally irrelevant consideration, but one that was central to the players’ strategies for defending their reputations outside court.)

Yet employment law contains no test of intention. In most cases, a claimant brings a claim of discrimination against the employer (generally a company). The employer is deemed liable for the acts of its employees even where those acts were done without the employer’s knowledge or approval. The issue before the Tribunal is the conduct, not the person, nor their motive.

The history of race claims is of a series of attempts to move away from common-sense definitions of racism, towards a clearer understanding, but the steps away are constantly compromised by inevitable judicial steps back.

The decent Dr Roberts

Sometimes, you can see this very pattern in a single case. In 1998, for example, the Employment Tribunal heard the case of a Dr Anya, who had been unsuccessful in an application for a post as a postdoctoral researcher at Oxford University, losing out to a white candidate. The panel making the appointment contained one Dr Roberts, who had been Dr Anya’s supervisor over the previous two years. Dr Anya complained that Dr Roberts had been uncooperative to him; had told him before the post was advertised ‘you can apply if you want, but you will not get it’; that shortly before the interview the job description was changed to help the white candidate who would not otherwise have had enough experience to be appointed; and that after the interview the university attempted to cover up the reasons for its decision.

The Tribunal heard the case over eleven days, and by the language of its own judgment appears to have had real difficulty in choosing between the conflicting evidence of Dr Roberts and Dr Anya. The Tribunal failed to say whether any of Dr Anya’s specific complaints were made out, but on what it considered was the central question (had Dr Roberts’ treatment of Dr Anya been motivated by racism), it decided that the reason for the conduct had not been discriminatory:

‘… we regard Dr Roberts and Professor Cantor as being essentially witnesses of truth despite the inconsistencies that were exposed under skilful cross-examination. … we are satisfied that the applicant received less favourable treatment in that Dr Lawrence was appointed when he was not. We are invited to draw the inference that was because of his race and not, as the respondents claim, on a genuine assessment of his scientific strengths and weaknesses. We are disposed to accept the respondents’ explanation and in our view the evidence is not sufficient to justify us in drawing the inference of discrimination.’

What is most interesting is that the Tribunal reverted to a common-sense analysis of racism. Dr Roberts had told the truth and therefore he could not be a bad person. If he was a good person, his conduct could not have amounted to race discrimination.

Discrimination ‘improbable’?

On Dr Anya’s appeal to the Employment Appeal Tribunal (EAT), the judgment was endorsed. It was possible, the EAT held, that Dr Anya’s skills had not properly been fostered in the department, but ‘improbable’. It was possible that the selection process for the relevant job had been discriminatory, but ‘plainly improbable’. It was possible that the department had closed ranks against Dr Anya, but again ‘improbable’. The EAT concluded in terms which were critical of Dr Anya for persisting with what it evidently decided was a hopeless case: ‘Nobody in the context of a complaint of racial discrimination could have listened to evidence over so many days without a growing and legitimate realisation that Dr Anya’s task of proving such [discrimination] was speculative to the point of being hopeless.’

The EAT had no particular reason for suggesting that that it was improbable that Dr Roberts had mistreated Dr Anya, or had treated him with hostility when assessing his skills for the post, or had encouraged colleagues to reject Dr Anya’s complaints because the Tribunal had made no rulings that these allegations were true or untrue. If anything, of course, the Tribunal had found that differential treatment did occur, just that Dr Roberts had been telling the truth when he said that the reason for the differential treatment was not race. Nothing appears to have justified the EAT’s remarks that Dr Anya’s case was improbable other than a belief that any claim of race discrimination is by its nature, unlikely to be true.

At the Court of Appeal, the Tribunal’s decision was overturned and the case was remitted to a new Tribunal. Lord Justice Sedley held that ‘Experience of other cases indicates, speaking generally, that the allegations made by Dr Anya are not inherently improbable; nor, if his factual allegations are made out, are the reasons for them necessarily speculative.’[2] The problem with the Tribunal’s conclusions is that it had so focussed on the question of whether Dr Roberts had been motivated by racism that it had failed to consider the smaller factual issues which should have determined whether such a complaint was properly made out or not. The Tribunal had been wrong to fix narrowly on the question of whether Dr Roberts had been truthful. It had lost sight of what mattered, namely whether there was evidence that he treated black employees differently in comparison to white employees, or not.

As in the example of Dr Anya’s case, race claims tend, more than wages or even dismissal claims, to pit the evidence of two people directly against one another. Arguably, this is a situation in which the Tribunal should flourish: it is of the essence of tribunals that the judges are experts at choosing between conflicting witnesses. So: what goes wrong?

Race and credibility

The most useful explanation I have found for the particular difficulties of claimants in race discrimination claims derives from immigration law.

Six years ago, an anthropologist Anthony Good published a book Anthropology and Expertise in the Asylum Courts[3] based on several years’ experience of appearing as an expert witness in asylum cases. His own fieldwork had been conducted in Sri Lanka, and he was used as a witness to corroborate migrants’ accounts of the areas in which they had grown up, Sri Lankan social customs, even the balance of forces in the civil war. After appearing as an expert in over a hundred cases, Good found that he was increasingly watching the court, and reflecting on judicial practice.

In his book, Good comments on the extent to which asylum cases depend on credibility decisions. For the applicant, what matters most is their evidence in chief (ie, when they first give their evidence, in the form of a speech), which is their chance to tell their story. What matters to the lawyers, however, is the cross-examination (ie, when the applicant is asked questions), and in particular the extent to which the witness comes over as credible or not when questioned. For a presenting officer of the Home Office (the nearest equivalent to a respondent’s representative in the Employment Tribunal) the key task is to establish small inconsistencies between the different accounts given by asylum applicants. If these add up, a legal submission can be made that the applicant’s account lacks credibility. For the applicant’s representative, the best that can be hoped is that their client comes out with their story as little tarnished as possible.

Good goes on to give various reasons as to why applicant testimony tend to be disbelieved by asylum courts. He describes the operation of various common-sense assumptions about the ways in which people gave evidence. For example:

  • Common sense teaches that people tell their whole story at every opportunity;
  • Common sense teaches that traumatic events will be recalled vividly;
  • Common sense teaches that stories will be told in a logical narrative.

False assumptions

As an anthropologist, with many years’ experience of listening to people telling their life stories, Good suggests that all of these assumptions are false. It is perfectly natural that a person would divulge a full narrative of a painful incident only over time, whether from feelings of shame, or because of a lack of trust in the first authority to which they were supposed to tell the full story. In general, traumatic incidents are often badly recalled. Certain kinds of pain resist language or even destroy it. The more intense the suffering that a person has gone through the worse they will be at talking about it afterwards. When a person seeks to recall unpleasant events, their memory of them is often non-linear; an inability to recall them is no better sign of dishonesty than of real pain.

Good describes ‘avoidance reactions’ (the judicial equivalent of ‘compassion fatigue’) where adjudicators deal with unpleasant evidence by refusing to empathise with those giving evidence. He cites an unpublished survey of asylum adjudicators, conducted by a part-time adjudicator, in which fellow adjudicators were asked to explain why they believed one witness and disbelieved another: ‘Replies indicated considerable variation in stated practice and showed that many credibility decisions rested on adjudicators’ “gut feelings”, their application of common sense (possibly another way of saying the same thing), or recourse to personal experience.’

A typical race case is in some ways like and in other ways unlike a typical asylum case. The emotional intensity of the experiences narrated by the employment claimant will be in all likelihood far less (many asylum cases turn after all on accounts of rape, torture or being made to watch killings). Yet many race cases have something like the same dynamic. Like asylum applicants, race claimants see themselves as telling a story of truth to power. Like asylum applicants, the essence of race claimants’ narratives is a story of suffering. People bring to the Tribunal stories about being bullied, being called names, sometimes about being threatened or physically attacked, and almost always about the failure of their employers to investigate their serious complaints. Often a race claimant will break down in tears.

The judges who hear asylum cases and employment cases are the products of the same legal culture, with the same emphasis on credibility, and the same tendency to look for ‘common-sense’ markers that a witness is or is not telling the truth.

David Renton is a barrister at Garden Court Chambers working in employment, housing and family law.[1] Qureshi v Victoria University Of Manchester & Anor [2001] ICR 863. [2] Anya v University of Oxford & Anor [2001] EWCA Civ 405. [3] Edinburgh: Glasshouse, 2006.

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

Comments

January 26, 2013
Ms Anonymous:

Excellent article which sums up the difficulties which claimants face when bringing a race case in Employment Tribunal.
I presented such a case in 1998 & was affected by the same issues faced by Dr Anya. The judge was verbally critical & dismissive about my case throughout the 2.5 years in which it went part-heard. I had an uphill struggle in proving my case then but won on 3/5 heads of claim. This was due to the persistence of my juniour barrister (now partner). I have now been sitting as a lay member in ET for more than 10 years and remain disappointed by the amount of race discrimination cases which fail & the panel’s interpretation on the credibility of the applicant and the common sense assumptions still being made.

January 28, 2013
T Ruskin:

Excellent article on an issue that is avoided by many: the almost impossible task of proving racial discrimination at employment tribunal and the lack of access to legal representation if you are not wealthy. (Clearly not the case as a lot of claimants have been dismissed and are out of work or ill). After losing a case then winning an appeal (believe it or not, the judge himself used racial stereotypes when speaking about the claimant!), it was another two years until my partner’s case was heard again. By then the respondents, an Oxford University college, got themselves a lawyer and a barrister who coached them very well in writing their new statements and giving their ‘reasonable explanations’ for their treatment of the claimant. Complaint about the tribunal judge not upheld by regional tribunal judge and a complaint has now been filed with the government ombudsman. No justice whatsoever, and the whole process is demeaning and exhausting.

January 30, 2013
Abdul Swaleh:

Vero Nihil Verius !

Fiat Justitia Ruat Caelum !

Semper Plus !

February 16, 2013
Unequal under the law:

Employment Tribunals (ETs) are perfect vehicles for dispensing injustice cheaply to non-members of the establishment and for protecting the establishment. It is one thing to find an auto repair owner, a council department or a hated faceless hospital bureaucrat, however senior, guilty of racial discrimination (RD). It is quite another to find guilty, say, a senior academic or captain of industry whose reputation would be irreparably damaged by a finding of RD. So, ETs typically do not find such people guilty. Instead, they find them busy, over-worked, incompetent, insensitive – anything but racist. The ET judges (EJs) prefer to impose losses on RD claimants with legitimate complaints than to damage such important people who might well be in their or their friends and colleagues’ social circle. As EJs can make unchallengeable findings of fact without any evidential basis or necessity of explanation, they find it easy to do so.
Anyone who has been in the ET and compared the evidence with a Judgement will know that, in RD cases, the Judgements are often works of fiction. EJs work backward from their desired conclusions to the “facts” that they “find” to support those conclusions. Quite often, they will knowingly tell the most blatant lies or ignore the most compelling evidence to suit their preferred narrative. As an employment lawyer, David Renton will know many examples of, e.g.: EJs colluding with respondents to pervert the course of justice by finding respondents’ bogus documents genuine while their Judgements make no reference to the claimant’s authentic documents that disprove them; EJs ignoring the fact that the respondents have told 6 different and totally inconsistent stories about the same events to find them “credible”. Because he has such knowledge, Renton is wrong to play the EJ’s game of offering an “innocent” explanation for the EJ’s obvious racial discrimination against BME claimants. When Hillsborough, the Chris Huhne case, journalists’ hacking of mobile phones and suchlike apparently show the seriousness with which society views attempts to pervert the course of justice and its war on cover-ups and corruption in high places, it appears that only the Judiciary is immune from searching scrutiny.
In fact, the ET has developed a body of doctrine to justify ignoring all of the claimant’s evidence. For example, “a finding contrary to the weight of evidence is not a question of law…It is not a question of law simply to show that there is far more evidence pointing in the opposite direction” (Judge Browne-Wilkinson). So, the truth and the claimant’s evidence pointing to it do not matter in RD cases.
Judicial bias and predetermination are defined by “what an impartial observer in full possession of the facts would find biased and predetermined.” Yet, these are judged in the EAT without going back to the “true facts” as opposed to what the Tribunal says are the “facts”. The consequences are that an ET Judge can lie about an incontrovertible fact to make out the claimant is a malcontent “playing the race card” without this being evidence of bias, perversity or an error in law, and can find that something impossible is true, again without this being perverse or an error in law. This is widespread. It is quite common to have hearings in which the Judge and other panel members are openly hostile and offensive to the RD claimant from the very start, thereby both signalling what the outcome of the case will be prior to hearing the evidence and encouraging the respondents to make cost applications. Renton, like all employment lawyers, must know of numerous cases in which this has happened. It is such behaviour that explains the statistics that reflect a situation that would not be tolerated were BMEs not the victims.

May 16, 2013
Anonymous:

It is also very unfair for someone to be labelled a racist when they are totally innocent of the charge In a court of law one is innocent until proven guilty. This should also be the case in an employment tribunal.

The accused party also goes through emotional turmoil when falsely accused. Money is often the motive of the accuser.

November 30, 2013
Unequal under the law:

Often, who is guilty and who is innocent depends not just on the law, but also on whether it is enforced. In apartheid South Africa and the US Deep South pre-Civil Rights, whites could lynch blacks but invariably would be found innocent by a jury of their peers. Things are not that different now. I believe that no high-profile person whose career and reputation would be affected adversely if they were found guilty of racial discrimination is ever found guilty in a Tribunal, even when they are clearly guilty. This is very true in academia, but not only in academia. Money is rarely the motive of accusers – who often get blacklisted, win or lose (and “compensation” in the Tribunal is rarely anything but niggardly). They just want justice and the equal treatment that is supposedly enshrined in statute but is frustrated by a Judiciary determined foremost to protect their friends in the establishment.

January 20, 2014
Employment Lawyer:

This is an excellent article. I work in a Law Centre and have experienced hostility against many of my BME clients, particularly black and Asian clients.

This is usually right from the start. It then often becomes apparent that the Judge has not read the Claimant’s witness statement or claim properly. It is just baffling why many judges have such an open and hostile view of black and Asian claimants, regardless of the merits of their cases.

I only run cases with supporting evidence, for example, a witness verifying what happened or statistical evidence proving a pattern of discrimination.

Therefore the constant hostility and Judges’ ” no merits” comments in my cases is truly shocking.
I have come to expect it.

Last week, I had a hearing with an Asian client and the interpreter was late. The Judge questioned why my client had requested an interpreter at substantial cost to the Tribunal when she spoke English very well. At this stage, the Judge had not even heard my client speak. The Judge then explained that the Respondent’s barrister had said this to the clerk.

Yet, the Respondent’s barrister had not had a conversation with my client either. It was as if the credibility of my client was challenged from the start, that is, why is she lying , pretending to need an interpreter?

My client is from Pakistan. Her English is at a basic level and she clearly needed an interpreter in the interests of justice so that she was not disadvantaged.

Other Judges have encouraged Respondent reps to make cost applications or to ask for a hearing on strike out when they clearly had no prior intention of doing so.

The majority of my clients are shocked. Their illusion of a fair and just British judiciary is shattered. Many believe the Judges to be racist themselves.

If we can not even get Judges hearing discrimination cases to have some cultural awareness and take an objective view of the evidence in cases then I hate to think what it is like in the rest of the judiciary.

The worse thing is that instead of getting progressively better, it appears to be getting worse.

January 30, 2014
Jinjar:

I have read the article and comments carefully and as someone who is currently preparing to go to tribunal on a RD case with a college in w. Yorkshire I am left doubtful. The word justice should be replaced with the phrase ‘if the judge thinks your honest’ could be used instead. The emotional and psychological feeling s are in themselves added punishment to the whole situation. My lived experience of this case is very sensitive and a constant reminder of the racism that exist in British society. If I loose my case like so many others I will be devastated, I don’t know what I will do. May justice prevail.

February 6, 2014
Ada:

I am in the process of attending a tribunal case next week and have become very worried after reading this article. Please I need advice. Where can I get one?

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