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.
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.
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.
Vero Nihil Verius !
Fiat Justitia Ruat Caelum !
Semper Plus !
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.
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.
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.
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.
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.
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?
I tried to sue Citizen Advice Bureau for racial discrimination and constructive dismissal. My own solicitors were doing the job of the racist for them by pretending that the gollywog was not a gollywog when closely examined etc etc…
Conflict of interest comes to mind when using white solicitors use non- white to defend you it sounds horrible but there will be no confusion or hidden agendas
Rita Pal on WhistleBlowing
Stop. Think. Do you really need to do this, or can you resolve the situation another way? If not, if a whistleblower you are determined to be, plan ahead. Gather your evidence in the form of documents, tape recordings, photographs etc, before you shoot your mouth off, because you will be amazed how much will change or vanish altogether the minute you say anything. Be sure of your legal position; research is key, and you MUST take the trouble to read important documents instead of hoping your lawyers will do it for you. Learn how to obtain documents using the Data Protection Act, and don’t be afraid to do so it is your right, after all. Always have a contingency plan, because sooner or later something will go wrong. Be prepared for a 10 year battle to extract information to vindicate you. And finally your not paranoid, they really are out to get you, so don’t let the buggers get you down!! Good luck!
Reading the article reminds me of the former Kings College black medical student Virginia Jibowu who sued Kings College Medical School in 2011 for harassment, discrimination and breach of contract,she claimed she was subjected to racial slurs and physical bullying, directly contributing to her expulsion and destroying her medical career, despite all the evidence she lost the case.
People simply assume that the British judiciary is totally fair and just, and then go into shock when when the realisation that it not so.
The Carol Howard (Metropolitan Police Firearms Officer) Race Discrimation case, that she won is proving that at least sometimes black people can get some justice but it is highly disturbing that action was taken to destroy evidence of racism towards Carol Howard, that is a very bad case of victimisation, what I feel happened here is that one sadistic person decided to target and bully Carol Howard. but we cannot forget that the reason Carol Howard is because moral,brave non-racist white colleagues and fellow police officers stood up for her told the truth, I hope this does not discourage people from joining the police or to think it racist or bullies.
It is relatively easy for the Judiciary to find the usual whipping boys in the Met, NHS management and local authority officials guilty of racism. After all, the Met, for example, has already been pronounced to be “institutionally racist”. It is much harder – in fact, virtually impossible – for the Judiciary to find members of the establishment similar to themselves, such as university Vice-Chancellors, guilty of racial discrimination. Just think of the ramifications of such a finding. However, we will occasionally have the Howards and the Brownes (Central Manchester University Hospitals NHS Foundation Trust v Browne UKEAT/0294/11/CEA)win their cases in less sensitive sectors. Then they can be pointed to as examples that show that UK justice is colour-blind – never mind the Ministry of Justice’s own contrary statistics.
I am going to the Employment tribunal for race, religion, wrongful dismissal and sexual harassment case. This is against the Aberdeen city council and I asked for help from Citizens Advice Bureau and also Ethnic Minority Law centre Aberdeenshire. With EMLC I got a reference number and I told them who I am going up against and never heard back, with CAB I was told the budget is less for taking up my case and maybe I should go to ‘No win No fee’ law firm.
The culture of passing the ball is all I could see. My grievance for wrongful dismissal and prejudice report to HR was futile , as the investigating officer did not get back to me with a report even after 3 months. I went to ACAS and have my early reconciliation number and have until 19th of March to file my claim. I have no experience in narrative writing. I have supporting evidence of colleagues and witness statements. I am hoping that I can do this on my own but any help would be appreciated. Or even if you can point me in the right direction with regard to getting help with writing narrative.
This is a most elucidating narrative, yet sadly familiar. I had reason to take a former employer to an ET for racial discrimination, on the grounds of institutionalised practices that affected my career progression as an environmental scientist. The factual basis of my claim hinged on managers not afraid to tell me of the organisations preference for their ‘blonde-haired blue-eyed’ boys and organisational shuffles of group leadership that only affected me (a black man). Further after raising a grievance the senior HR Manager leading the investigation into the issues I had raised, was subsequently revealed to have been in the group management meeting and so party to the decision of the very changes that impacted me when the organisations ‘annual shuffle of the pack’ was made. Further detriment was applied in my case was when I was made redundant before the grievance hearing was concluded. However this paled into insignificance to my experience garnered in the ET, where the EJ in her final judgement considered little of the evidence brought before her or that was subsequently revealed during the most transparent of cross-examinations by her fellow ET panel member. The Tribunal was adjourned during the final hearing after it was revealed by the respondent’s own evidence that the redundancy was illegal. There was no diminution in staff numbers following my departure from the organisation. The team that I was part of the leadership of had 17 people before I was made redundant and 17 the immediate Monday morning after leaving the company, when a colleague from another office was brought in to replace my role. The Respondent’s representative, who in preparation to reposition the defence, used the excuse of a ‘serious injury’ sustained whilst training in a gymnasium to seek an adjournment. We resisted, however the EJ in her wisdom before seeing the GP’s note from the respondent’s representative, agreed to adjourn. The ‘serious injury’ did not prevent the respondent’s rep from re-submitting the case for defence 2-days after the adjournment! Classic examples of open bias included the EJ’s view that the senior HR Manager investigating the grievance I had brought, said she had left the group management meeting before the organisational changes to the leadership structure had been made and so chose to believe that she could not have been conflicted in her duties, as she wasn’t present, despite minutes of the meeting making no reference to her early departure. The hostility shown to my representative was such that many questions tabled to the respondent’s witnesses, were interrupted and not allowed to develop beyond a cursory closed question response. In a week where UKIP said that they would repeal the race discrimination laws contained within the employment act, I was at first aghast that Farage is naïve enough to believe that racial discrimination is now extinct from British society. But on reading the learned responses on this article, I now wonder if thoughts of repeal are in fact correct, but for a different reason. The common-law has weakened the original RRA ’76 beyond the factual point of ‘less favourable treatment’ satisfying the test for grounds of racial discrimination (RD), to a point where an EJ can apply considerable power to place the factual grounds on questionable subjectivity as far as the subject of animus or conduct of an organisation are concerned. There are apparently 100 cases of RD per year brought before the ET. In the last 5yrs there have only been 3 (three!!) successful convictions. Therefore the powers available to a claimant to seek redress for personal injury as a result of been subject to acts of RD, are not available within the current legislative framework and the subjective approach to interpretation of intention by EJ’s. My personal experience suggests that what was experienced/felt has become lost in the sight of judicial interpretation of what was meant, and therefore leaves the legal system as far as the application of this particular piece of law is concerned, as an office of the same institutionalised practices and collective failures, as the very organisations brought before the ET for legal determination. As in the eloquent words of the great Jazz musician Wynton Marsalis, “…There is always something you don’t wanna do and is always that thing that’s so much about you confronting yourself, that is tailor made for you to fail dealin’ with it…”
David Renton. Thank you for this article. I echo others….what you have written is so true. I am now in the process of Appealing my own ET travesty of a decision. They even failed to find racism against the Respondent’s own internal process that found that racial discrimination did occur. Such a decision was necessary for them to not find grounds for victimisation etc….I note that people are asking for help and I am happy to use my experiences to help others so perhaps my email could be passed on to posters who are looking for help / support to persevere. The main thing I believe is that we should not give up. If the system is rotten then it needs to be constantly challenged.
We need a reason to breath I suppose!
The struggles continue!
I have a case of race discrimination.A hearing in one month,the judge I the preliminary hearing made a judgement based on lies she made up.I asked for a reconsideration (refused) I don’t have a solicitor because I am poor. I need help,I have a lot of interesting facts to show the grounds of my allegations.But not knowing about the law I struggle to make a good presentation of my evidences . Can someone help me
Interesting article. I am currently awaiting the outcome of my RD case. During my journey, I discovered that there is very little help for this in all the usual places – Union, CAB. This is because of very stretched resources rather than because these places subscribe to practices of RD themselves. RD cases can take days to decide in an ET. In my own case, I had 2 separate preliminary hearings and then a 3 day full merits hearing and the case still went part-heard. There will be a 1 day in-chambers consideration of my hearing soon, following which I hope the panel make their decision.
I found help in the form of a charity which advocates for the rights of parents in the workplace. There are several of these charities but what I didn’t know is that they have legal rights advisors. These caseworkers are qualified solicitors who can assist with preparing cases by giving targeted telephone advice and sometimes (if the schedule allows) will read your drafts and propose amendments by email. They sometimes have access to volunteer solicitors (pro bono) who act as a second opinion for the advise they are giving in specific cases.
The other very important thing they can do is refer your ET case to either the Free Representatin Unit or the Bar Pro Bono Unit in London. (There may be equivalent units for other parts of the UK). These units act as a hub which match cases with volunteer barristers. Unfortunately, volunteers are usually only able to give up 1 or 2 days of their time. This means that any case which is listed for 3 or more days in the ET is unlikely to be matched with a volunteer. I was unsuccessful in my application for such free representation but the charity case workers were AWESOME for me.
I wish the very best of luck to all of us who have found ourselves in the situation of an RD case in the ET.
I am going through this process and I am feeling isolated vulnerable and alone – at 50 years and being black in a predominantly white society I have made some concessions . I realise that I need to challenge this and whilst I may never win I don’t want to feel this inadequate and ignorant I know that my chances of winning are slim I know the system is built on upper class values but I can’t roll over all the time and ingore this . I need support and and friend really to talk to and understand because it’s much easier to take a leapt of faith when you have someone to help
((% of Tribunaljudges, especially, in the Birmigham Tribunal are corrupt as they just turn evidence on its head and tell a different version of facts
This article is an extremely good attempt in exposing why RD cases are highly unsuccessful. I do suggest that it stopped short of acknowledging that there may be issues with judges own frame of reference or in essence that the majority of judges are racist themselves and are reluctant to side with the claimants but will side with their white counterparts. I was a witness in a RD case where the respondents, a north east council produced forged documents in an attempt to prove their case. The judge attempted to even defend the respondents and protected them as the claimant was not even allowed to question the respondents around these documents. Yet the judgement erroneously stated that no documents were presented. Moreover, costs were awarded to the council as the claimaint dared to suggect that the documents were forged. Before you conclude that the documents could not then be forged, you are mistaken the documents were clearly forged. This demonstrates the impossible task of proving RD cases if you’re non-white against white respondents. Tribunals are not set up for equal access, racism runs throughout the legal system. If you suffer racism at work then look for other positions as there are no other solutions.
This does not bode well. I am looking to submit a tribunal claim against my employer who is very white middle class and has an establishment figurehead.
As Sonia mentioned further up in the comments, I may not win either. However, the racial discrimination by my management and then the rest of the senior management and HR has eroded my dignity and to again use her Sonia’s words: rolling over.
Unfortunately there’s a lot of racial discrimination in employment centres or Job Centres as they are known here. My son has struggled to find employment after completing his Masters. He reluctantly signed on and was assigned to a Work Coach, a white man in his 30s. who seemed resentful of my son and would constantly make disparaging remarks about his academic qualifications and what a waste of time it was, he should have just gone to work etc. He actually told my son that for a black man to have ‘this much qualifications” actual words, it was “more a liability than a good thing” and maybe he should just remember his place and get “any old job”. My son is usually mild mannered but this day he said: what so I can end up working in the job centre like you, with no real skills and prospects. Well, this work coach took offence and decided to sanction my son for failure to participate. He also said he felt ‘threatened’ and now my son is banned from the job centre for 9 months! He was so upset and didn’t even tell us the full story. When my husband heard about it he said son, start your own business and I’ll back you. My boy is 6 months into his own business and he’s doing reasonably well. I’m proud of him. But imagine if he didn’t have us to back him, he wouldn’t have any money and he would have been labelled. I urged him to make a formal complaint but the Job Centre hasn’t even acknowledged it yet. My son is 23.
It looks like racial prejudice to me. We are originally from Ghana and moved abroad after the crash, we returned to support our son through his studies. My son is a well groomed, articulate young man from a close knit family. The only way he can be perceived as threatening is if you make it up. Racial discrimination exists.
LGBT and white women according to statistics are more likely to win tribunal cases; disabled comes third. As long as we have white faces running the show; liberal or conservative; we will continue to face this #racism. Black People are hated for what reason is a mystery. e are not allowed to do well. My brother is a graduate and spent many years out of work… now he works for Argos stacking shelves!
There will always be a problem between black and white this idea that LGBT white and white women needing equality is a joke as this article obviously shows. I myself am going to a tribunal but I am aware that my black skin will walk through the doors before the facts! I have experienced racism and have written a book on on it called ‘They don’t want us here’ by Kevin Watson. Black people do not get justice in Britain.. You will experience white rage when you try to get something from the system then the reality of their hatred will hit you hard. White People prefer Muslim terrorist to black people it is that bad!! They will support Muslim business but not us!
First of all, not all muslims are terrorists…. incidentally about 1% are. Second of all, white and black people can also be terrorists. Lastly, while you make a valid point of how unfair racial discrimination, this point is completely ironic as you then proceed to make discriminatory comments about another race/religion.
So glad to have read some of these comments. First hand experience of the ET system and I am shocked by how they are run. I can relate to everything being said about the bias of Judges and lay members. The Respondent can blatantly lie or tamper with evidence and nothing is said, instead they are credible. Evidence or facts are selected or just assumed to exist even if they don’t, to fit the conclusion that they want. You have the option to appeal on bias and perversity but they rarely succeed. Justice is only available to those who can afford it. You have to go through it to really understand that this.
I took on a qualifications body in the ET for racial discrimination, for being British. They were making it harder for British people to qualify. The Judgment was absolutely shocking to me. Every paragraph of my witness statement was linking to evidence in the bundle. It was never a he said she said type of case. I was referring to their own documents to show what they were doing. The Judge completely ignored my evidence, and my witness and everything in the bundle and simply accepted their Director’s word. This despite our evidence showing he was lying but she still prefer his lies. I made a reconsideration but this was rejected out of hand. I made an appeal application but wasn’t granted one. What have I got out of this except one Judge failing to find facts, except their lies as ‘facts’, then an appeal Judge telling me nothing is perverse about this. Seriously they must think people like me have no brains. My thoughts are that the original ET Judge was scared of the qualifications body and had they lost any part of this they would take matters to appeal and embarrass her. So she gave them what they wanted. Seriously folks, do these Judges really think you’ve brought a case this far through several pre-hearings and a 5-day main hearing if you didn’t have any serious claim? I represented myself but it would have cost £15-20k to get someone decent to represent me. At least I didn’t pay that kind of money. Essentially I had a Judge tell me this qualifications body didn’t test me on what their own documents said they were testing me on because she preferred their lies under oath- they call this a ‘justice system’? Yet this Judge is completely unaccountable for her perverse findings and I am of the view all she did all week was jot down what their lying barrister said and completely ignored me when she found that under cross examination I stood up to them and wasn’t inconsistent at all.
They are reluctant to find anti-British racism as well. In my experience, Employment Judges ignore actual documentary evidence brought my Claimant and prefer the word of important people from the Respondent in their witness statements. In one case, documents emerged after the hearing that showed these witnesses had lied. These documents were always in their possession but never disclosed to the tribunal. Upon reconsideration the Judge refused to reconsider anything in spite of all this evidence and perjury that took place before her.
I agree with so much here.. I’m in the unusual situation of having gone to the ET with an RD case as a white British person. Almost everything in my witness statement was ignored including incontrovertible evidence that it cited in the bundle. The respondent refused to call one of their two witnesses involved and the ET refused me a witness order. The ET then allowed the other witness to contradict her own witness statement several times and couldn’t care less. However, the EJ slipped up by making contradictory findings of fact. When I submitted a reconsideration application I was told after a few months of chasing a response that I had never submitted it. EJ’s are lazy dishonest and self-interested.