A Qualitative Study of Judgments in Race Discrimination Employment Cases

• Author: ANGUS ERSKINE,ALISON BROWN
• Published date: 01 January 2009
• DOI: http://doi.org/10.1111/j.1467-9930.2008.00293.x
• Date: 01 January 2009

LAW & POLICY, Vol. 31, No. 1, January 2009 ISSN 0265–8240

© 2008 The Authors

Journal compilation © 2008 Baldy Center for Law and Social Policy

Blackwell Publishing LtdOxford, UKLAPOLaw & Policy0265-82401467-9930© 2008 The Author Journal compilation © 2008 Baldy Center for Law and Social PolicyXXX

Original Article

Brown & Erskine A QUALITATIVE STUDYLAW & POLICY XXXX

A Qualitative Study of Judgments in Race

Discrimination Employment Cases

ALISON BROWN and ANGUS ERSKINE

Qualitative methods were used with the aim of identifying any persistent patterns

in the written judgments of British employment tribunal cases involving claims of

race discrimination that might explain why these claims are relatively unlikely to

succeed. The main factors at work appeared to be credibility of the parties and

whether the claimant had enough evidence to pass the burden of proof to the

respondent. A relatively recent legislative amendment relating to burden of proof

appears to be very significant, while other factors highlighted in the literature

appear to be less so.

INTRODUCTION

Discrimination is not simply a matter of individual prejudices and decisions.

It is linked to material factors such as changes in the employment market,

in socioeconomic conditions, and in immigration (Delgado 2001); workplace

cultures (Green 2005); and the presence or absence of affirmative action

laws (Thomas 2003). Courts tend to be skeptical of claims of race plaintiffs,

and are hesitant to draw inferences of racial discrimination based on

circumstantial evidence, even though courts have long recognized that race

discrimination is generally subtle in form (Selmi 2001). Given that most

racial motivation is unconscious, any supposed dichotomy between

intentional and unintentional discrimination is open to challenge (Lawrence

1987). Studies of criminal justice processes indicate that empirical research

into racism and antidiscrimination is complicated by the interaction of race

with other factors and the potential tension between individual and

group justice models and outcomes (Hood, Shute, and Seemungal 2003).

As will be discussed below, these findings accord with commentaries on

Address correspondence to Alison Brown, Dept. of Applied Social Science, University of

Stirling, Stirling FK9 4LA, UK. E-mail: Alison.brown@stir.ac.uk; Telephone: +44 (0) 1786

467695; Fax: +44 (0) 1786 466299.

Brown and Erskine QUALITATIVE STUDY OF JUDGMENTS

143

© 2008 The Authors

Journal compilation © 2008 Baldy Center for Law and Social Policy

antidiscrimination law’s interpretation in the English courts, which suggest

that some of its main shortcomings are the ways in which the law operates

as individualized, adversarial, and negative in its effects. It is therefore of

concern to governments to ensure that, in the absence of any fundamental

transformation of the legal system, legislative provisions are as effective

as possible. The proportion of race discrimination cases that succeed at

tribunal are lower than average (Employment Tribunals Service 2004),

and this article discusses one element in a wider program to determine the

reasons for this (Aston, Hill, and Tackey 2006; Peters, Seeds, and Harding

2006).

This article discusses the research findings conducted as part of a wider

research program for the Employment Relations Directorate of the UK

Department of Trade and Industry (now Department for Business, Enterprise

and Regulatory Reform) (Brown, Erskine, and Littlejohn 2006). Besides

testing the robustness of source data and methodology, matters that are not

considered in this article, the primary aim of the research was to identify

any persistent patterns in the written judgments of Race Relations Act

cases that might explain why these claims are relatively unlikely to succeed

at tribunal.

Under the Race Relations Act 1976 (RRA), a person who believes that

he or she has been discriminated against at work on racial grounds can

make a claim to an employment tribunal. Employment tribunals deal

with more than seventy different types of complaint, ranging from unfair

dismissal to nonpayment of wages, working time, holiday entitlement, and

breach of contract.

Tribunals are intended to be accessible and to deal with disputes quickly

and with less formality than courts. Tribunals are chaired by a lawyer, usu-

ally sitting with two nonlawyer members from employer and employee

backgrounds. Appeals can be made on points of law to an appeal tribunal.

The parties are referred to as claimants and respondents. Chairs have a

degree of discretion as to procedure, but most tribunals will have documen-

tary evidence, including witness statements and in-person evidence from

witnesses. Witnesses can be cross-examined and questioned by tribunal

members. A specific provision of discrimination law is the ability of the

claimant to gather information in advance from the respondent by means

of a section 65 questionnaire. If the tribunal upholds a claim of discrimina-

tion, it can order the respondent to pay compensation and recommend that

an employer take action to remove or reduce the adverse effect of the dis-

crimination. In 2003, the law was changed in relation to burden of proof

(RRA 1976: §54A). This potentially removes some of the barriers to suc-

cess, particularly for the unrepresented or less articulate claimant. If a

claimant is able to prove facts such that the tribunal

could

conclude that

discrimination has occurred, the onus shifts to the respondent to prove that

the differential treatment was not based on racial grounds. If the respondent

cannot do so, the tribunal

must

make a finding of discrimination.