Monday 11th June 2012 at 5:50am
How much is your race claim worth?
I recently was loaned the employment law cuttings of the Institute of Race Relations (IRR) for the period from Jan 2009 – Feb 2011. Going through them, I thought it might be interesting to list just about every case in them, by the value of the total award.
Amounts of award
(Listed by total amount, not re-adjusted for inflation)
£140,000 at Ashford ET (£81,740 for “racial + other discrimination”, but prob UD, and £25,473 for “PI”, but prob Vento), including being referred to by colleagues speaking of “bloody foreigners” and having her accent taped, played back and mocked
Daily Mail, 21 March 2011
£115,000 (not broken down) for senior nurse who asked after promotion and was told she was the “wrong colour and wrong culture”
BBC News, 19 January 2010
£111,169 (not broken down) after manager told she did not fit in, was forced to eat on her own, denied holidays, and given extra duties because of race
Telegraph, 6 April 2009
£65,000 (including psychiatric injury, future loss of earnings and lost pension rights) after senior black immigration worker was selected for redundancy and white workers were not selected
Workplacelaw.net, 8 June 2009
£53,596 (not broken down) after supervisor told him “The Serbs were just right to rape your women and children” and “See that Croatian fella, he left his wife and 18 kids and came here on the back of a lorry”, and took his name off time sheets
BBC News, 23 April 2010
£36,000 (not broken down) after manager told her “You are only a nigger, what do you know?” and company tried to resolve her discrimination grievance by offering a 15p per hour pay rise
Personnel Today, 14 December 2009
£22,000 (£18,500 plus aggravated and interest) after Navy officer was introduced to colleagues as “Andy, aka Robert Mugabe”, “Vote Mugabe” stickers were placed on walls, and he was punched by an officer
Bexley Times, 13 January 2010
£13,000 (not broken down) after firm boss called dish washer “stinking” in front of other customers
Belfast Telegraph, 28 June 2010
£7,000 (not broken down) after business owner told customer, “Don’t you think she stinks? It must be in the blood, ‘cos them foreigners eat all sorts of crap”
Belfast Telegraph, 7 July 2010
£6,570 for injury to feelings after fellow worker told her “Why don’t you go back home? Don’t you have supermarkets in Spain”
Denbighshire Visitor, 22 January 2009
£4,000 for injury to feelings after teacher was subject to racist bullying by pupils
Lancashire Telegraph, 25 March 2009
As will be obvious to any lawyers reading this, the above list should be read with considerable, caution. Generally, what is reported is the size of the total award not the breakdown of the award between Vento and non-Vento damages (which is, of course, what would be most interesting to lawyers), moreover, as in the award at the top of the list, when journalists start describing an ET award as being for “personal injury”, you can infer that they have the essentials of the story wrong.
There is also the standard problem of how cases get selected or self-selected for press coverage. It will be noted for example that the above are almost all in advance of the median award for race discrimination which in 2010-2011 was £6,277.
Thanks to the IRR for the cuttings.
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Monday 26th March 2012 at 1:15pm
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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Friday 2nd March 2012 at 11:49am
Illegality, trafficking; justice
As a matter of contract law; there is a presumption that a party may not sue to enforce an illegal contract. The reasons for this originate in public policy. Imagine if a group of robbers fell out. It would be unjust for one of them to be able to sue the others in the courts complaining “I agreed to join you for wages of £1000. But you’ve only paid me £500. Now I want the rest.”
This presumption can however be displaced. The courts recognise for example that it may be that the illegality originated all on the part of the defendant. For example, if the defendant was a business that told its employees that it was paying their tax (but did not) and then defended claims of unfair dismissal by saying that in reality the employees had always been unlawfully employed, it would be wrong for that business to rely on its own illegality to frustrate its employees’ rights.
In employment law, the Judges have consistently said that where a worker has knowledge of and participates in an illegality, the contract is unlawful and unenforceable; but where the illegality is unknown to them or the worker does not participate, the contract may be enforced. (There are slightly different rules in discrimination law, which arises not in statute but tort and where a worker can potentially sue on an illegal contract, provided that the tort was separate to the illegality – but I’ll leave that to the side).
Many of the “illegality” cases arise from immigration situations.
In the recent case of Zarkasi v Anindita & Anor [2012] UKEAT 0400/11, the claimant was an Indonesian domestic worker who come to the UK, on a scheme set up by her employer, by pretending to be someone else, which involved obtaining a passport under a false name. The ET determined that she knew and participated in the illegality; accordingly she could not succeed in any contractual claim. The employee raised an important counter-argument; namely that she had been trafficked, and asked for the ordinary contractual rules to be disapplied.
There were two main issues at the EAT.
First, was the ET right to find that the claimant had not been trafficked? The scheme was organised by her employer, whose evidence to the contrary the Tribunal disbelieved, the workers’ terms were worse than she had been promised, and the employer put pressure on her not to leave the house. The Border Agency has accepted her as a trafficked person. The EAT dealt with this part of the case by saying that the conduct of the employers had not amounted to coercion or fraud (judgment para 32), and therefore the ET was right to find that the Claimant had not been trafficked. The decision of the BA was not binding on the courts.
Second, where a worker has been trafficked, should the ordinary test of knowledge and participation should be disapplied? Article 4 of the Convention on Action against Trafficking in Human Beings provides that “The consent of a victim of “trafficking in human beings … shall be irrelevant where” force or fraud have been used against them. The EAT, presided over by Langstaff J, decided that the Convention has no force in UK law (judgment para 27), i.e. where a person is trafficked, but consented to it (eg as result of fraud) they still come within the knowledge / participation test – i.e. they can bring no unfair dismissal or wages claim against the employer who fraudulently brought them here.
The court acknowledged that its decision would lead in many case to injustice (para 28), but said that this was necessary to protect the policy position that illegally employed person have no right to work in the UK and cannot benefit from illegal acts. This is the part of the judgment which I imagine will be least attractive to non-lawyers: the argument that those who come to the UK unlawfully lose any employment rights vis-a-vis those who bring them here unlawfully, even where their employer is the instigator and source of the illegality, and even where workers are brought here by coercion or fraud.
It is the passages of the judgment where the President states directly that the court must apply “policy” and not “justice” which cause the most concern.
Apart from immigration, the main context in which Tribunals have to consider illegality is tax, i.e. where a person has declared themselves a self-employed worker for tax purposes but then relies in the protection of employees in unfair dismissal law. The trend in these cases, as exemplified by Hall v Woolston Hall Leisure Ltd [2000] EWCA Civ 170 and Enfield Technical Services Ltd v Payne & Ors [2008] EWCA Civ 39, where the trend is for the court to look understandably on the reasons that might cause a worker to declare one status for one purpose and another in a second.
If, as it appears, the underlying purpose of the “knowledge and participation” test is to discourage illegal immigration: how does it deter traffickers if the courts tell them – you can treat workers as badly as you like, and they will have no rights against you?
Really: why should rogue employers be protected where the fraud is one of their own making?
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