Do black lives matter in the employment justice system?
1. A strategy of piecemeal reactions to inequality sustains existing racial inequity and is therefore a racist strategy. Employment tribunals must be properly equipped with a complete understanding of racism before it can credibly determine whether a Claimant has proven facts from which discrimination could be inferred. BAME people often identify incidents and circumstances as racist, but many white people would identify the same as “not racist”: education is the key.
2. The killing of George Floyd on 25 May 2020 triggered worldwide condemnation and renewed cries for equality in the UK. A comprehensive Lammy-type review is required of the Employment Justice System (“EJS”) to ensure that the system is antiracist. This may be an opportunity to showboat as well as reform.
3. What is notably different from previous outcries for equality is the much wider national and international participation of non-BAME individuals and organisations . Eddo-Lodge’s Why I’m No Longer Talking to White People about Race is currently the bestselling book on Amazon in the UK. There is growing acceptance that merely stating one is not racist is unacceptable (even if true) and that racism is better understood as a descriptive term rather than solely a pejorative one.
4. David Lammy’s review of the treatment of, and outcomes for, BAME individuals in the Criminal Justice System identified three key principles necessary to respond to the disproportionate representation of BAME prisoners: fair treatment, trust and responsibility. He found that the odds of receiving a prison sentence for drug offences were around 240% higher for BAME offenders. The government’s published a prompt and ostensibly embracing response and in February 2020 outlined its progress.
5. ‘There are disparities between ethnic groups in all areas of life affected by public organisations’ and this includes pay and seniority in employment. Kendi accurately describes a racist policy as ‘any measure that produces or sustains racial inequity between racial groups’. It would be bold and inadequate to conclude that the EJS or any other system is ‘not racist’, particularly as we are only just recognising what racism means. A strategy of piecemeal reactions to inequality sustains existing racial inequity and is therefore a racist strategy.
6. A Lammy-type review of the EJS would ensure that it is antiracist. It may identify no problems within it and highlight best practice. However, an antiracist does not presume: an antiracist approach is proactive, seizing the opportunity to demonstrate, and not just say, that black lives matter. A review will gain public confidence in the system and identify areas for learning and reform. I do not seek to define the full ambit of a review, but the following mutually inclusive areas should be included.
Access and participation
7. This should consider whether BAME workers are less likely to bring proceedings and if so, to identify the reasons. Any disparate effects suffered by BAME workers from the reductions to Legal Aid; access to other sources of funding (e.g. home insurance); and the now abolished tribunal fees should be identified. Necessary questions include whether BAME clients feel able to participate effectively during proceedings? I am confident that ex-Claimants would share their experiences.
Is the EJS achieving equality?
8. One of the fundamental aims of the EJS must be to eradicate discrimination and promote equality. A robust review of the law’s effectiveness is required in addition to recommendations for reform. Example questions would include whether statutory protections in relation to equal pay and gender pay reporting impact negatively on pay disparity for BAME workers? How is the absence of provisions for intersectionality and social class justifiable? Should discipline data be published by employers identifying race disparity? Is the burden of proof law realistic, transparent and antiracist? How do individual workers’ claims affect equality in the workplace? Are remedies sufficient and how do employers react to findings against them?
9. The review should identity any disproportionate BAME representation for Claimant work and (generally, better paid) Respondent work; identify reasons for any disparity; its effect; and propose necessary change. It is not uncommon to see the only BAME faces on the Claimant side of a tribunal room and the Respondent side to be entirely white: what effect does this have on the public confidence, particularly in front of an entirely white tribunal?
10. Work allocation within Chambers should be reviewed. There have been some publicised examples of professional clients demanding white male barristers. A review would explore why this happens; its extent; and whether a BAME barrister is less likely to be believed by a tribunal than white barristers. This is extremely sensitive, and would require considerable research and monitoring, but to engage effectively as antiracists, uncomfortable but necessary discussions are essential: we cannot ignore the elephants in the room.
11. Training should be reviewed; there is a genuine willingness to provide diversity training at the Bar, but there is a gap in training in terms of understanding racism fully. If racism is not adequately understood, can it be said that representatives are meeting their regulatory requirements, for example, taking appropriate steps to prevent discrimination (Code C8 of the BSB Code of Conduct)? What are the professional obligations of a representative if their client’s response to a claim conceals, promotes or espouses racism?
Judiciary and panel members
12. According to the Judicial Diversity Statistics 2019, 7% of court judges, 11% of tribunal judges and 17% of non-legal members of tribunals were BAME. Do all judges and tribunal members have a complete understanding of racism? Should it perhaps be mandatory that judges and tribunal members are antiracists and can provide evidence of the same as part of the application process: thus improving public confidence? This may be an opportunity to showboat as well as reform.
13. Sample judgments should be reviewed. For example, it is necessary to ask why in 2015, the Court of Appeal in Essop misunderstood indirect discrimination, thus rubberstamping and laying the path for discriminatory practices for two years. The regularity of appeal cases involving the burden of proof suggests inconsistent understanding as to when racism could be inferred. Having thought about race and experienced racism for over 40 years, I know that BAME people identify many incidents and circumstances as racist when many white people would identify the same incidents as “not racist”: education is the key.
14. A tribunal requires a complete understanding of racism before it can credibly determine whether a Claimant has proven facts from which discrimination could be inferred. Tribunals may be better supported by law change such as a statutory provision setting out examples of when racism should be inferred. I suspect that our excellent judiciary would welcome this review and would embrace the need for training and change.
15. There is renewed pressure on the government to fully implement Lammy’s 35 recommendations despite the recently announced commission on racism which Lammy suggests indicates a “deeply worrying” government scepticism as to whether racism actually exists.
16. So many of us publicly condemned the George Floyd killing and expressed support to the Black Lives Matter movement. There is an obligation or at least an opportunity to achieve equality in the EJS and I implore you to campaign for a review: being antiracist is not political, but is a fundamental human obligation.
Kendi: How to be an antiracist: Ibram X Kendi
Essop: Essop and others v Home Office; Naeem v Secretary of State for Justice  EWCA Civ 609 & 1264.
Employment and Discrimination Law Team
Garden Court Chambers
14 September 2020
This article was first published on the Garden Court website and is reproduced here with the kind permission of the author.