Race claims in the Employment Tribunal

A friend contacted me recently to ask if there are any statistics for how race cases in particular fare at the Tribunal. The Ministry of Justice produces annual figures .

From these we see that in year ending 30 March 2011, 9000 unfair dismissal cases reached a final hearing, at which 47% (4200) suceeded. of the six types of discrimination claim, claimants have the best prospects of success in sex discrimination cases, 37% (290 out of 780 final hearings), and the worst prospects of success in race discrimination cases, 16% (150 out of 950).

It is worth asking why it is that race cases do worse even than other types of discrimination claim. The most useful answer I’ve found I derives from a completely different area of law – immigration law.

Five years ago, an anthropologist Anthony Good published a book Anthropology and Expertise in the Asylum Courts based on several years’ experience of acting as an expert witness in asylum cases. His own field work 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 100 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 (i.e. when they gave their evidence, initially, in the form of a speech). This is their chance to tell their story. What mattered to the lawyers however is the cross-examination (i.e. when the applicant was 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 added 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 for why applicant testimony tended to be disbelieved by asylum courts. He described 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.

As an anthropologist, with many years’ experience of listening to people telling their life stories, Good suggested that all of these assumptions were false. It is perfectly natural that a person would only 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 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 particular witness is or is not telling the truth.

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