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Saturday, 02 February 2013 14:13

CULTURE OF DISBELIEF? WHY RACE DISCRIMINATION CLAIMS FAIL IN THE EMPLOYMENT TRIBUNAL

Written by  David Renton
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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

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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