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The Experience of Claimants in Race Discrimination Employment Tribunal Cases
Aston J, Hill D, Tackey N D
a study commissioned by the Department of Trade and Industry
This qualitative study explored the perceptions and subjective experiences of claimants who were involved in Race Relations Act employment tribunal cases. It complements the quantitative Survey of Employment Tribunal Applications (SETA). In-depth interviews with 40 RRA claimants were carried out between May 2005 and February 2006. Wherever possible, the interviews were recorded and transcribed, or detailed notes were taken, and the software package Atlas.ti was used to analyse the data. This report is based on that analysis.
Of the 40 claimants interviewed, 16 were women and 24 were men. They encompassed a range of ages, religions and ethnicities; 14 claimants were Asian, 25 were Black and one was White. Sixteen had no representation for their RRA case, although others had representation from their trade union, solicitors or barristers. Eight claimants’ cases had been successful at a tribunal and ten had been unsuccessful. Seventeen claimants had settled their cases and five had withdrawn their cases.
The origins of the case
Claimants had often gone through long periods of difficulty and dispute with their employers before they applied for an employment tribunal. Very few claimants reported taking a case after a single event, although some had lodged their cases after being dismissed. They often felt that their dismissals were as a result of bringing racism to the attention of their employer. Many had experienced overt racism involving, for example, name calling, or racist notes or literature being circulated. Claimants working for service organisations reported racist abuse from clients, and that their employers did not support them. Claimants usually attributed further incidents to racism, even when they were not overtly so.
Prior to their disputes, claimants reported cordial relationships with their colleagues. The perpetrator of the discrimination was often senior to the claimant, and difficulties began as soon as the claimant and perpetrator had to work together. Claimants felt that challenging issues of discrimination with their employer had ultimately caused them even more problems, and communication tended to have broken down by the time they invoked the grievance procedure. As a result, they often felt that their concerns had not been dealt with fairly through the grievance procedure, but that it had made things worse for them. Few claimants had been subjected to disciplinary action, but some of those who had felt that the underlying cause of this was their allegations of racism to their employer.
Taking the case
Claimants’ primary reason for taking their case was the pursuit of justice. They felt that their employer should be told they had been wrong, and they should be made to change their behaviour towards ethnic minority employees. Some claimants who had been dismissed hoped to be reinstated in their jobs. They were rarely motivated by potential financial gain, although they wanted to be compensated for loss of earnings. Most claimants had no prior experience of employment tribunal cases, but sought advice from their trade union, the CAB or the CRE before applying to the ETS. They had sometimes lodged their case after the outcome of their workplace grievance procedure had been unsatisfactory, or when they felt that this would be stalled beyond the three month time limit for claim form submission.
Most claimants did not inform their employer they would be applying for a tribunal. They were unlikely to remain at work when the case was being prepared, often being off sick or having been dismissed by this time. Claimants’ expectations of the employment tribunal process were different from the experiences they reported, particularly regarding how long the process would take, the amount of work involved, the amount of legal knowledge required, and the need for representation. At the outset, claimants were confident they could win their case, being convinced that they were in the right.
Advice, support, representation and conciliation
Claimants consulted a range of sources of advice for information, support and representation. These included the CAB, their unions, local law centres, race equality organisations, and solicitors. Some also conducted personal searches for information, and used sources including the Internet and the literature provided by the ETS. Most claimants had found the process of securing representation difficult and time consuming, especially as they were usually unable to afford to pay for it. Some claimants had chosen to represent themselves, but most wanted representation for the tribunal and throughout their case.
Acas seemed to have played a relatively minor role in these cases, and some claimants would have liked more contact and information from Acas. Claimants found securing representation difficult, and many represented themselves in the absence of any other options.
Cases which were withdrawn or settled prior to hearing
Representatives were often involved in cases which were withdrawn or settled prior to a main employment tribunal hearing. They appeared to exert considerable influence over claimants’ decisions. ‘No win no fee’ solicitors, in particular, seem to have pushed claimants into settling their cases, when they would have preferred to continue to a tribunal hearing. Such claimants usually had substantial regrets about having settled their cases. Those who had settled cases with representation from their union seemed to have fewer regrets, perhaps because they felt more ownership over the decision to settle. Some cases had been settled in the weeks and months leading up to the hearing, but some were settled only hours before. Some claimants settled as a result of their poor health; they did not feel well enough to be able to continue with the case. Although claimants had not been motivated by money they rarely felt that the sums they were awarded were sufficient compensation for what they had been through.
Those who had withdrawn their cases usually regretted having had to do this, but felt that they were left with no other viable course of action. They withdrew for reasons including a lack of evidence and witnesses, and threats to their personal safety.
Employment tribunal hearings
On the whole, claimants did not feel adequately prepared for the tribunal hearing, and did not know what to expect. Claimants felt that the Chair, and whether or not they were sympathetic towards the claimant was central to the way they experienced the hearing. The ethnicity of the Chair and panel was mentioned by some claimants as being an issue in race cases, affecting their confidence of getting a fair hearing.
Some claimants had difficulty following the developments in their case, and those who were without representation felt at a significant disadvantage compared to respondents, who were almost always legally represented. Claimants felt that the balance of power rested with the respondents as they had more experienced legal teams, more financial resources and a greater number of witnesses.
Outcomes of cases that went to a tribunal hearing
Claimants who were unsuccessful at tribunal attributed this to factors including bias in the panel, lack of witnesses and insufficient evidence, having to represent themselves, or the inexperience or incompetence of their representatives. Successful claimants were not always satisfied with their case outcome. This was either because they felt they had not been awarded enough money or as a result of the lack of cautions or punishments issued to respondents.
Claimants who had settled their cases after the main hearing had started had usually felt pressured to do so, and were generally not satisfied with the terms. Those who had withdrawn their cases during the main hearing felt that the tribunal panel would not be convinced that discrimination had taken place.
The impact of the case
Claimants found it difficult to differentiate between the impact of having taken the case, and the impact of the preceding events in the workplace. Claimants were often distressed before they lodged their case with the ETS; however, it seems that the process of taking their case exacerbated this. Most claimants reported that the case had a negative impact, they had found it very stressful, and many said that it had worsened their physical health and emotional well-being. Those who had struggled with long disputes at work prior to applying for a tribunal hearing seemed to suffer the most during the case itself. Claimants who represented themselves had often experienced some of the worst effects on their health during their cases. Health conditions seemed to particularly persist where claimants had been unhappy with the outcome of their cases.
Negative financial effects were reported by claimants, both during and after the case had finished, in terms of loss of earnings and paying for solicitors’ advice. Some claimants said that their experiences had damaged their confidence and trust in other people. Some were still unemployed several years after their case had ended for reasons including poor health and low confidence.
Claimants felt that the process of taking an employment tribunal case was not ‘user friendly’ enough, that it should be less formal and less reliant on legal terms and knowledge. They felt that securing good representation and providing evidence were very important. Claimants had mixed views on whether they would take another employment tribunal case, with some feeling that it should be used only as a last resort. Very few claimants reported positive outcomes from their cases, although those who had won were clearly pleased that they had made a stand against their employers and had been successful.
A mixture of overt racism and unfair treatment which was not, on the face of it, racist, was reported by the claimants. Once a claimant had experienced overt racism, they tended to attribute subsequent incidents and disputes to racism. Their relationships with their employers deteriorated rapidly after bringing alleged racism to the attention of their employer. Claimants felt that some of their subsequent difficulties in the workplace were as a direct result of having done this. It would seem that more could be done to prevent disputes from escalating to the point where claimants saw an employment tribunal as their only course of action. Steps could include ensuring a fair hearing through the grievance procedure, and/or introducing an additional mediation and conciliation stage before a case is lodged.
Claimants tended to be unaware of what would be involved in taking an employment tribunal case. Having gone through the experience they felt that the current process gave the respondent a natural advantage due to their having more resources, access to legal teams, and prior experience of tribunals. The availability of advice, support and representation greatly affected how claimants experienced the process of taking their case, and claimants also felt it had been a key factor in the case outcome. However, few had easily been able to secure good quality, trustworthy and reliable representation.
Negative effects were felt by many, especially in terms of their health and well-being. Good representation had the capacity to ease this burden considerably. Those who had been most able to put the experiences of their RRA case behind them had usually experienced fewer negative effects during them, and/or had felt that justice had been done. Those who had felt in control of the decisions made about their case were often more able to recover from their experiences.
Changes could be made to improve claimants’ future experiences of taking RRA employment tribunal cases, either by managing their expectations, or by altering the employment tribunal process and hearing to align it more closely with their expectations. Measures to help prevent long-term damage to claimants wherever possible could include a code of practice for employers on how to deal with individuals who have taken employment tribunal cases. In addition, it would be helpful to provide a service whereby claimants would be referred to agencies that could get them back into employment at the end of their case.
Some of the key emergent and overarching themes from the research are discussed in detail at the end of the report. These themes are:
The progress of the case: including dispute emergence and escalation prior to submitting the Claim form, whether claimants viewed the case as being primarily about race, and the effect of the pre-trial hearing on the case.
Advice, guidance and representation: including representation and access to justice, the strength of the case, routes into self-representation, the disadvantages of self-representation, ‘no win no fee’ representatives, claimants’ trust in their representatives, and the perceived role of Acas.
Expectations and motivations: including justice as claimants’ key motivation, their expectations compared with their experiences of taking a case, and the lack of appropriate resolution.
Issues of power: including claimants’ perceived control compared with a sense of powerlessness, the balance of power between claimants and respondents, and claimants and the system as a whole, and the ethnic composition of the panel.
The Experience of Claimants in Race Discrimination Employment Tribunal Cases, Aston J, Hill D, Tackey N D. Employment Relations Research Series ERRS55, Department of Trade and Industry, 2006.
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