To What Extent Is There Evidence of Racist Practices at Employment Tribunals?

0
University of Law, Birmingham

“To what extent is there evidence of racist
practices at Employment Tribunals?”
MA Law Dissertation
Academic Year 2022-2023
Carlton McDonald Candidate No: C2080976
Word Count: 7,940

Reference list: 2,296
Appendix 1: 639
Table Captions: 98
Total 10,971
Carlton McDonald 1
“To what extent is there evidence of racist practices at Employment Tribunals?”
Abstract
There appears to be great difficulty imposed on Black and Minority Ethnic (BME) groups in
order to get to a full Tribunal hearing. There appear to be a number of strategies used to
ensure that the case doesn’t go to a full hearing. This research looks at the methods used to
sift claims between ET1 and Final Hearing. The statistics of cases not making it to a full hearing
are presented. Are race discrimination cases disproportionately represented in those
claimants that have cases regarded as having little prospect of success, estopped, subject to
deposit orders, and struck out. This paper seeks to analyse judgments in each of these
jurisdictions and analyses the numbers of discrimination cases making it to a final hearing.
Carlton McDonald 2
we all know that explicit racism tarnishes policing and

criminal justice more broadly. 1
1. Introduc@on
1.1. Employment in the UK for black employees.
“[T]here is a definite prejudice that exists against a West Indian, or against a foreigner, even if
he is white”. Ref Going to Britain2. The perception of black people is that there is racism in a
number of areas in the UK. This is evidenced in a number of diverse areas: education3,
policing4, employment, women’s health5, men’s health6 and even management in the UK
football league7. It is alarming for well-intentioned and anti-racist individuals to find that they
harbour biases, and may be complicit in discrimination.
As the author is aware of an Employment Tribunal (ET) process underway, where there
appears to be process of treating the claimant differently because of his race and, by all means
possible, keeping his claim out of a final Tribunal hearing at which decisions are made on
evidence. Reflecting on the techniques used in having the claim struck out, the author has
decided to examine the evidence to see if the strategies used to keep the claimant from giving
evidence at the final hearing have been used in other race discrimination cases.
The HR dept. focus on giving the impression of going through the legal process. The strategy
tends to be to allege gross misconduct resulting in immediate dismissal and therefore results
in no income. In so doing few employees have sufficient savings to go through the internal
processes, let alone survive without income for years while navigating the legal cross-country
marathon of years of internal grievances, internal appeals, legal steps to apply for a tribunal,
early conciliation, preliminary hearings (PHR), tribunal documentation (schedules, protected
disclosure forms, document bundles, ET1s, ET3s. There may be the inevitable Employment
Appeal Tribunal before reaching, if ever, the finish line of a final hearing.
Why you should be concerned:
1
Dr Jules Holroyd, Implicit racial bias and the anatomy of institutional racism, Centre for Crime and Justice
Studies, 2015, p32.
2
BBC Pamphlet, Going to Britain (circa 1959) https://www.bl.uk/collection-items/bbc-pamphlet-going-to-
britain [accessed 23/03/2023].
3
See Table 1 on the next page.
4
Studies, 2015, pp 30 – 32.
5
Downham Moore AM, Race, class, caste, disability, sterilisation and hysterectomy, Medical Humanities 2023;
49:27-37.
6
The Lancet, Volume 339, Issue 8798, 11 April 1992, Pages 887-889.
7
https://www.goal.com/en-gb/news/how-many-black-managers-coached-premier-league-
clubs/h01an0r6n5w41uf9dunlsxejg [accessed 20/07/2023].
3
Table 1 2013-14 Higher Education Statistics Academy (HESA) Data – Zero Black Senior Academics in the UK
Carlton McDonald 4
1.2 The Rule of Law for Minorities

As David Cole, an American academic, has written in his book ‘Enemy Aliens’ in some detail
about discrimination against non-citizens, he found: government security initiatives start with
noncitizens. 8
If these mechanisms are used to make justice more difficult to achieve for BAME employees
other groups will follow: Eastern Europeans, women, disabled, and poor working classes.
According to “Guide to Judicial Conduct”, the reason for the discrimination problem in British
courts, is that the judiciary are permitted to breach equality laws with impunity because they
are exempt from equality laws.9
This is important because it’s shocking to see that the UK judicial function from 2016 is exempt
from the prohibition on discrimination against litigants. What is the judicial function? It is
actions performed by the members of the judiciary, i.e. judges. Litigants can be subject to
discrimination in courts and tribunals. That means that judges are authorised, by law, to
discriminate against women and black claimants, black respondents i.e. black owned
companies. This may not affect many readers but let’s spell this out: As David Cole said, “Every
significant government security initiative implicating civil liberties… originated in a measure
targeted at noncitizens”.10 It starts with the non-citizens, then the black, minority and visibly
non-native ethnicities, non-Christians, then Christians, then the disabled, mentally ill, less so
in 2023, women, then the poor, finally the whole of society. Coles’ context in 2003 was the
USA. The last 20 years have shown that the UK, particularly in the Middle East and North
Africa (I.e. the Muslim world), seem closely aligned with the USA on the global stage. Is it any
different in UK Employment Tribunals and the rule of law? This research answers this
question.
“The EAT recognises that employment judges and Employment Tribunals are
themselves obliged to observe the overriding objective and are given wide powers and
duties of case management (see Employment Tribunal (Constitution and Rules of
Procedure) Regulations 2013 (SI 2013/1237)), so appeals in respect of conduct of
Employment Tribunals which is in exercise of those powers and duties, are the less likely
to succeed.”11
8
David Cole, Enemy Aliens (New York: New Press, 2003), p 85. Cited in THE SIXTH SIR DAVID WILLIAMS
LECTURE, THE RULE OF LAW: “Virtually every significant government security initiative implicating civil
liberties – including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures
to avoid the safeguards of the criminal process, and preventive detention – has originated in a measure
targeted at noncitizens.”
9
Guide to Judicial Conduct, Judiciary of England and Wales (2016) Appendix 2 A brief guide to the Equality Act
2010: “Whilst the ‘judicial function’ is exempt from the prohibition on discrimination in the exercise of public
functions, this exemption is likely to be limited to the core, adjudicative function. Ancillary functions, e.g.
training, mentoring, conducting appraisals, managerial or committee functions and conduct towards
colleagues or court staff will not be exempt.”
10
David Cole, Enemy Aliens (New York: New Press, 2003), p 85. Cited in THE SIXTH SIR DAVID
WILLIAMS LECTURE, THE RULE OF LAW, p15.
11
Practice-Direction-2018-19-09.pdf, Section 12.6.2
Carlton McDonald 5
‘Less likely to succeed’ i.e. little prospect of success! How perverse! This statement is the
reason cases are not heard before hearing the evidence. It is remarkable that such a
statement is made before hearing the evidence. Representatives, solicitors, barristers and
even judges decide not to support litigants solely because, on the face of it, there is little or
no prospect of success. Every case should be heard on its merits. It is precisely for these
reasons that the racists and misogynists are able to hide behind their wig.
The very next paragraph in the practice direction indicates the extent to which misogynistic
and racist judges are able to treat litigants unfairly. If the Claimant alleges racial discrimination
they are at risk of having costs imposed12.
1.3 Burden of proof in race claims

It is very difficult to prove direct race discrimination because unconscious discrimination is
explained in a way that justifies their actions in ways not involving discrimination.13
It is unusual, to find direct evidence of discrimination! This reinforces the declaration at the
outset of the Employer and the trade unions: ‘little prospect of success’ and the claimant gets
no support from a union and becomes a litigant in person (LIP).
The judiciary are exempt from equality laws but complaining and accusing them of being
discriminatory may lead to costs against litigants. This could be a strategy used by ET judges
to impose costs on litigants that are female, or don’t look or sound British. Firstly, by not
treating them fairly, and then, when judiciary behaviour is challenged, the racist judge is
amenable to accusations of vexation and scandal and is amenable to a request from the
employer of a costs hearing. Not only does it make the case difficult to win because of the
accusations of vexation and scandal, they may often become subject to a costs hearing. This
is solely because of the judiciary exemption from equality laws. Therefore, misogynists and
racists use costs as punishments for what may be legitimate complaints.
1.4 Strategies for avoiding Race Discrimination Hearings

Employer Tactics
• Plead not a continuing act.
• Don’t start or complete internal processes.
12
Practice-Direction-2018-19-09.pdf, Section 12.6.3: “Unsuccessful pursuit of an allegation of bias or
improper conduct, particularly in respect of case management decisions, may put the party raising it at risk
of an order for costs against them”.
13
Race discrimination, Practice Note, LexisPSL Employment Practical Guidance, [Accessed 17/07/2023]:
“Proving and finding race discrimination is always difficult because it involves making a finding about a
person’s state of mind and why they have acted in a certain way towards another, in circumstances where
they may not even be conscious of the underlying reason and will in any event be determined to explain
their motives or reasons for what they have done in a way which does not involve discrimination. It is
unusual to find direct evidence of discrimination, and normally the tribunal’s decision will depend on what
inference it is proper to draw from all the relevant surrounding circumstances”.
Carlton McDonald 6
Tribunal Tactics
Out of Time
Little or No prospects of success
Deposit Orders
Unless Orders
Strike out
Ordinary/Automatic Unfair Dismissal
Costs Hearings
The rest of this dissertation begins with a literature review of the main stages used in ETs to
have claims struck out. Although these follow on from the internal tactics, due to the word
limit employer tactics are not be reviewed.
Chapter 3 is a description of the methodology used. Chapter 4 Critical Data Analysis of

Tribunal statistics and issues arising from the Literature Review. Chapter 5 is a conclusion of
the main findings of the research.
Carlton McDonald 7
2. Literature Review
2.1 Introduction
In the UK context, there isn’t much in the way of literature on racism in ETs. There is, however,
very many cases referring to race discrimination. Chapter 4 presents statistics related to the
issues raised in preventing discrimination cases making it to the final hearing. A barrister
David Renton in his book ‘Struck Out’ Why Employment Tribunals Fail Workers and What can
be Done, analyses statistics of ETs and has a Chapter ‘Why Do So Few Race Cases Win?’. In
2012, he said that “Discrimination claims are harder to win than, say, wages or unfair dismissal
claims.”14 Renton found only 16% (just over 1 in 6) race cases successful in 2010 – 2011.
This literature Review looks at the potential for racist attitudes to be practiced with impunity
within ETs. The particular focus of this research is on the mechanisms used to Strike Out
claims of alleged racism in UK universities. There are tens of thousands of tribunals annually,
as a consequence the Literature Review will focus its search on University contexts. The
University contexts are a smaller number of cases but also include medical cases as many
universities NHS training contracts, and provide work experience in hospitals. This is the
reason you will see cases with NHS workers associated with University contexts. This chapter
therefore looks at Tribunal rules and the many tactics employed to strike out claims before
they reach the final hearing heard on the facts, as opposed to, heard on the judge’s
perceptions in PHR.
14
David Renton, Struck Out Why Employment Tribunals Fail Workers and What Can be Done, Pluto Press,
2012, p69, para 2.
Carlton McDonald 8
Figure 1 Employment Tribunal receipts and disposals15
In the 3.5 years when fees were charged to bring a Tribunal claim, discrimination claims were
regarded as more complicated than pay related claims. In fact, there were two types of claims
the most expensive were unfair dismissal and discrimination claims.16
Although Strike out is the ultimate method of ensuring that a final hearing does not take place,
a number of other tactics are used to prevent Claimants from appearing at the final tribunal
hearing:
1. Out of Time
2. Estoppel
3. Likle chance of success – deposit orders
4. Deposit orders not applied aler Claimant’s costs presented at Pre Hearing Review
5. Strike Out – no chance of success
6. Strike Out – vexamous
7. Ordinary Unfair Dismissal – Claimant refuses to engage
Any decision of the ET may be appealed to the Employment Appeal Tribunal (EAT). In race
cases this, in the vast majority of cases, is an appeal from the unsuccessful claimant.
15
https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2023/guide-to-
tribunal-statistics-quarterly
16
tribunal-statistics-quarterly: “Under the previous ET fees scheme, claims were separated into two distinct
types, each attracting a different fee. ‘Type A’ claims were more straightforward, and so had a lower fee.
These included claims about unpaid wages, payment in lieu of notice and redundancy payments. ‘Type B’
claims involved more complicated issues, and therefore attracted a higher fee. These types of claim tended
to be those involving unfair dismissal or discrimination complaints.”
Carlton McDonald 9
2.2 Out of Time

It takes an awful lot of discrimination for a black employee to take out a grievance let alone a
Tribunal claim. There tends to be a ‘final straw’. This often results in Tribunal claims occurring
out of time. Out of time, is a decision made at ET prehearing review (PHR). This is the first
means by which Claimants are prevented from a full hearing. The interpretation of “any act
extending over a period” in s 68(7) of the Race Relations Act as a “continuing act” derives
from the speech of Lord Griffiths in Barclays Bank Plc v Kapur [1991] 1 All ER 646, [1991] ICR
208, at 214-215. It is an error in law to dismiss a continuing act of racial discrimination at PHR.
The case should be decided upon the facts in a full hearing. Nevertheless, you will see that
this error in law persists in a high percentage of race discrimination cases.
In the case of Deman v University of Bradford17 The tribunal did not have Claimant’s
submissions and decided he was out of time. There had been no dispute that the failure to
supply the tribunal members the applicant’s written submissions had been an ET
administrative failure. The approach of the tribunal at its review hearing was correct in law.
There had been no procedural breach that was seriously irregular and unfair. The appeal
failed. So the ET’s administrative failure was not regarded as seriously irregular and unfair,
Deman was still deemed out of time.
Adedeji18 After his employment ended, commenced proceedings against the Trust in the
Employment Tribunal (ET), complaining of unfair (constructive) dismissal and race
discrimination. The ET held that both the unfair dismissal and discrimination claims had been
brought outside the primary time limits, and declined to grant any extension of time (he was
three days late), and not permitted an extension because “the consequence of granting an
extension of time might have been to open up issues which had arisen long ago”. The law is
not concerned with justice, or that racist organisations learn from their mistreatment of staff.
If there are long standing issues, having been unfairly dismissed and presumably desperately
trying to find work, the judgment seems unfair.
Professor Fraser19 found that evidence, in a second claim, concerning victimisation more than
three months earlier was therefore out of time. It may be the case that evidence of a person’s
victimisation emerges months or years later. It would be just to pursue the victimisation claim
regardless of how far it goes back if the evidence emerges more than three months after the
last instance in the continuing act of discrimination.
In Leander v Goldsmiths College20 Leander claimed the ET, in stating what its decision would
have been had it had jurisdiction, has produced a very unhappy consequence, namely it has
opened the door to victimisation of Mr Leander by Goldsmith's College. The EAT went on to
say: “The truth is that the decision of the ET was to dismiss the application because it was out
17
Deman v University of Bradford [2006] All ER (D) 12 (Jun)
18
Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] All ER (D) 97 (Jan)
19
Fraser v University of Leicester and others UKEAT/0155/13: “[56] specifically observed that the complaint of
victimisation arose only under the second claim and, to the extent that it related to matters occurring before
28 March 2011, was out of time.”
20
Leander v Goldsmiths College (University of London) [2001] EWCA Civ 1709
Carlton McDonald 10
of time. If they entered into unnecessary reasoning, which has had unhappy consequences
for Mr Leander, that is much to be regretted but does not seem to me to figure as a proper
subject of appeal”.
The EAT say “if” this isn’t the question at all. The ET entered into unnecessary reasoning based
on incomplete evidence. The consequence, not just in this case but in most cases deemed out
of time is that the discrimination continues at the Respondent university/organisation. Rather
than ensuring that the Claimant doesn’t have cause to make subsequent complaints,
managers move on but the same systematic discrimination continues because new managers
are allowed to overlook, intimidate, bully and victimise their black employees and, if all else
fails, dismiss her/him.
Koudriachova raised ET claims of unfair dismissal and for unlawful deductions presented one
day out of time21. This was not overturned by EAT.
The failure to make decisions on the evidence emboldens racist organisations. They are fully
aware of the stress of tribunal hearings. They hope to achieve dismissal and a meagre
settlement and non disclosure agreement (NDA) to get rid of the ‘trouble maker’.
In the case of Fearon v Chief Constable of Derbyshire22 the Tribunal decided that the 17 year
career and 37 initial complaints were out of time and that “none of the allegations were well
founded”. On appeal, a further 10 complaints were accepted as within time.
Out of time is quite bizarre. Imagine someone robs a bank and is found and charged 4 months
after s/he is caught on camera. Could the burglar really say, sorry you can’t charge me because
you are out of time? Why are employment tribunals different? Losing one’s job could have a
greater impact than having money taken because the income is a stream of money usually for
years. It is a sense of belonging. In some niche industries losing one’s job results in major
geographic upheaval of the family. In severe instances can lead to major mental illness.
2.3 Estoppel
As a result of presenting at a PHR out of time employers tend not to learn their lessons or
change their discriminatory behaviour. The next time a Tribunal claim is generated, the PHR
may indicate that issues which have been long standing should have been raised before.
Although there are two types of estoppel (also referred to as the doctrine of res judicata):
action estoppel and issue estoppel where an action or issue which has been litigated should
not be raised subsequently.
A third type of estoppel has arisen which is extremely draconian. It is called Henderson v
Henderson Abuse of Process23. It is where the subject of a claim is related to a claim made or
should have been made, earlier. Failure to have raised it earlier is regarded as an abuse of
process. Fortunately for continuing act of racism claimants, a continuing act should be heard
21
Koudriachova v University College London [2015] All ER (D) 319 (Jun)
22
Fearon v Chief Constable of Derbyshire [2004] Lexis Citation 1079
23
Henderson v Henderson (1843) 3 Hare 100, 67 ER 313
Carlton McDonald 11
on the evidence and it is an error in law to dismiss at a PHR. Where no final hearing judgment
has been made on the evidence, in effect no decision has been made, i.e. res judicata does
not apply in a continuing act, not in action estoppel, issue estoppel or Henderson v Henderson
abuse of process.
The fact that Henderson v Henderson was in the courts in 1843 when UK society was very
much masters and servants rather than employers and employees. The concept of estoppel
was to protect masters from their servants raising complaints again and again. In the case of
race discrimination 180 years later, claimants are not legal experts, they are unaware of time
limits let alone the rules for claims. A claimant going through internal processes that take
longer than 3 months can lose the right to claim, should they raise another claim later to say
that they should have raised it previously, is entirely inappropriate in the 2020’s.
2.4 Little Chance of Success

In Chaudhary v BMA the case is that the BMA did not support any member unless they have a real
prospect of success. 24
It is true that the likle prospect for race discriminamon claims is undeniable but that is simply
the stamsmcs looking at the number of race claims that make it to the ET final hearing. As is
covered in this literature review, every race discriminamon claim is met with the declaramon
“likle chance of success”. The BMA used a synonymous expression: “no real prospect of
success”. In the case notes other expressions are ‘greater than evens’; ‘beker than evens’;
‘greater than 50%’. The Unions, (or in this case, the BMA), thereby leave the claimant having
to navigate the Tribunal journey of limgamon for years which rarely makes it to a final hearing.
During the PHRs the respondents frequently cite likle or no chance of success in a way that it
seems like a cue to Strike out the claim.
The longer it takes, the lower the perceived chance of success by the Respondent, the
Respondent’s legal representamve, and the discriminamng judge. It is worth nomng that there
is a link in Chaudhary between out of mme and chance of success.25
In 2013, a most unfair rule, subject to abuse, was the opportunity for a judge to be able to
dismiss a claim even before a PHR, if the judge deems there is “no reasonable prospect of
success”.26 The Underhill Review of Employment Tribunal Rules permiked a judge to decide
24
Chaudhary v British Medical Association [2007] All ER (D) 455 (Jul): “treated Mr Chaudhary in the same way
that it treated, or would treat, its other members in the same or similar circumstances; it investigated the
merits of his discrimination claims against the regulatory medical bodies and persons; it concluded that there
was no real prospect of successfully challenging the lawfulness of the decisions that Mr Chaudhary alleged
were racially discriminatory; and it informed him that it could take no action on his behalf, as the BMA does
not support its members' claims, unless they have a real prospect of success”.
25
Chaudhary v British Medical Association [2007] All ER (D) 455 (Jul) para 242: “the ET said that the
Southampton proceedings had had a low chance of success due to being brought out of time;”
26
tribunal-statistics-quarterly: “Dismissed Rule 27 – complaints dismissed by an Employment Judge after initial
consideration of claim and response. An Employment Judge can dismiss a claim, or any part of a claim, if s/he
considers that it has no reasonable prospect of success, or that the tribunal has no jurisdiction to hear the
claim (or part thereof). This is a new provision introduced on 29th July 2013.”
Carlton McDonald 12
not to consider the claim at all, let alone at a PHR. So, although it is an error in law to strike
out a conmnuing act claim at a PHR. In that discriminamon claims all have low chances of
success, a judge could decide not to hear any at all.
2.5 Deposit Orders

Following on from little chance of success, the ET will deter claimants by applying for deposit
orders, where a claimant has to pay, up to £1,000 per allegation, with little prospect of
success. This is, in effect, justice for those who can afford to pay for it.
In the case of a continuing act, the number of allegations can be quite considerable. It is often
the case that the allegation leads to dismissal or occurs as a result of dismissal. The deposit
order does focus the claimant’s attention on matters that are significant enough to commit
deposits up front. However, this could be quite considerable amounts of money considering
the Claimant has no income. In the vast majority of cases, it means that to pursue justice, the
claimant is forced to seek employment elsewhere. This is a major injustice if one doesn’t make
a tribunal claim within seven days as, if a claim is made within seven days of being dismissed,
the person is entitled to be paid until the Hearing takes place. There is no need to look for a
job. They are more likely to be able to pay the deposit order(s). Unions do not always make
this clear to their members at the time of dismissal, or leading up to dismissal. Is this only the
case for black workers? A separate project would need to investigate this question.
2.6 Unless Orders

An Unless Order is effectively a conditional Judgment, dismissing the whole or part of a
response without any further Order. It was described as 'one of the most powerful weapons
in the court's case management armoury' which 'should not be deployed unless its
consequences can be justified'.27
Rule 38(1) of the ET may specify that unless an order is complied with by a specified
date the claim (or response), or part of it, shall be dismissed without further order. The
intention is to ensure that documentation is completed in a timely manner. However, if the
original claim results in, as it often does in race claims, victimisation, bullying or unfair
dismissal, an unless order can be used to request an unreasonable amount of documentation
to be produced in a short time period.
“It is well-established that care is required when drafting the terms of an unless order,
particularly in a case where there are several allegations; as Langstaff P observed in
Johnson v Oldham MBC UKEAT/0095/13:
“… where an ET1 raises more than one claim, they are legally separate claims… the
consequences of an unless order may be draconian… such an order might provide that
any allegation not sufficiently particularised might be struck out. Such an order would
leave it open to a subsequent Judge to conclude that there had been compliance in
27
Marcan, Paragraph 36, Rojha v Zinc Media Group Plc [2023] EAT 39
Carlton McDonald 13
respect of some allegations, which would not therefore automatically be struck out,
even though there had been non-compliance in respect of others which were”.28
Non-compliance can be used to strike out all claims and consequently the only recourse a
claimant has is to appeal.
2.7 Strike Out – Scandalous or Vexatious
Rule 37 Striking Out
Tribunal Rules 2013, Rule 37 permit Strike out if any one of five conditions is satisfied29:
(a) that it is scandalous or vexatious or has no reasonable prospect of success;
(b) that the manner in which the proceedings have been conducted by or on behalf of
the claimant or the respondent (as the case may be) has been scandalous, unreasonable
or vexatious;
(c) for non-compliance with any of these Rules or with an order of the Tribunal;
(d) that it has not been actively pursued;
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the
claim or response (or the part to be struck out).
37 (1)(a) is actually three conditions the third of which is “has no reasonable prospect of success”. What
is a reasonable chance of success and who decides? The answer the judge. For race claims by their
very nature the chances of success are very low. A judge is therefore within their rights to Strike out
every claim for race discrimination. What is really perverse is that along with rule 6 multiple claims can
be struck out just because the claim is a race claim and has no reasonable prospect of success. You
will see later that this applies to all discrimination cases, i.e. the have no reasonable prospect of success
as only 2% or 3% of all discrimination claims succeed in a final hearing in 2020/21.
20. The Underhill Review of Tribunal Rules 2013, Rule 37 does not make specific provision for the
amount of notice that must be given before strike out is considered, but the person against whom such
an application is made must have sufficient time to prepare, so that they have a reasonable opportunity
to make representations. There ought to be a minimum time but this minimum doesn’t exist, it is left up
to the judge usually following the request of the Respondent’s representative.
23. Rule 6 provides:30
28
Longstaff P, Paragraph 20, Rojha v Zinc Media Group Plc [2023] EAT 39
29
The Employment Tribunals Rules of Procedure 2013 (as subsequently amended up to 6th October 2021):
Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a
party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—
30
The Employment Tribunals Rules of Procedure 2013 (as subsequently amended up to 6th October 2021):
Irregularities and non-compliance
6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the
Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any
step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it
considers just, which may include all or any of the following—
(a) waiving or varying the requirement;
(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;
(c) barring or restricting a party’s participation in the proceedings;
(d) awarding costs in accordance with rules 74 to 84.
Carlton McDonald 14
This allows Tribunal, i.e. an employment tribunal judge, to take any acmon s/he
considers just regardless of the Rules except for rules 38 (Unless Orders) and 39
(Deposit Orders).
The case of Bahad v HSBC Bank contrasts the caution in striking out discrimination and
public interest and disclosure claims, highlighting what deposit orders are designed for: the
diagnosis of discrimination cases succeeding is expressly stated: It’s when material comes
out in evidence that witnesses are unable to convincingly explain when giving evidence.31
In the Deman case, it was menmoned that Deman32 had raised forty appeals and that “most
have failed, mostly at the preliminary hearing or sil stage”. Without going into the merits of
Deman’s appeals, there is a sense that the PHRs are an akempt to sil out race claims not
just at the EAT but also at the ET. Preliminary hearings are supposed to be an akempt to
understand the claims in an imparmal manner. This siling process is accomplished using
Strike Out and doing so using a variety of methods.
In contrast, Choudhury J (President) in Malik v Birmingham City Council UKEAT/0027/19, the

employment judge referred to paragraphs 29 –31, quomng the extract from Mechkarov:
raising a 5 part approach to strike out:33
(1) only in the clearest case should a discrimination claim be struck out;
(2) where there are core issues of fact that turn to any extent on oral evidence, they
should not be decided without hearing oral evidence;
(3) the Claimant's case must ordinarily be taken at its highest;
(4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably
inconsistent” with undisputed contemporaneous documents, it may be struck out;
(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve
core disputed facts.”
Finally, The House of Lords held in Anyanwu, the definitive statement on strike out of
discrimination cases at PHR:34 Discrimination claims should not be struck out. Hearing the
evidence is of high public importance.
31
Bahad v HSBC Bank Plc [2022] EAT 83: “the appellate courts have for many years urged caution in striking
out discrimination and public interest disclosure claims. Yet, on occasions employment tribunals having
directed themselves that it is an extraordinary thing to do, strike out claims that are far from unusual.
Experienced employment judges may sometimes feel that it is pretty clear that a claim will not succeed at
trial and wish to save the expense and, possibly, the distress to the claimant of a failed claim. But that is what
deposit orders were designed for. To strike out a claim the employment judge must be confident that at trial,
after all the evidence has come out, it is almost certain to fail, so it genuinely can be said to have no
reasonable prospects of success at a preliminary stage, even though disclosure has not taken place and no
witnesses have given evidence. When discrimination claims succeed it is often because of material that came
out in disclosure and because witnesses prove unable to explain their actions convincingly when giving
evidence.“
32
Attorney General v Deman [2006] Lexis Citation 1082, para. 3.
33
Bahad v HSBC Bank Plc [2022] EAT 83, para 31:
34
Anyanwu v South Bank Student Union (Commission for Racial Equality, interveners) [2001] UKHL 14:
“Discrimination claims should not be struck out as an abuse of process except in the most obvious and
plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is vital in a
Carlton McDonald 15
2.8 Awarding Costs

In 2017 the supreme court abolished Tribunal fees for application and hearing fees, including
EAT applications and hearings.
It should be noted that employment tribunal fees are no longer payable following the
Supreme Court’s judgment in R (on the application of Unison) v Lord Chancellor, on 26 July
2017, that fees were unlawful as they prevented access to justice35
“For individual claimants bringing a type A claim, the issue fee is £160 and the hearing fee is
£230. For individual claimants bringing a type B claim, eg a discrimination claim, the issue fee
is £250 and the hearing fee is £950.”36
In the EAT the issue fee is £400 and the hearing fee is £1,200. In that, it seems that the ET
rarely find in favour of the Claimant, the Claimant inevitably has to appeal. Although tribunal
fees have been abolished, there is something much more valuable than money and that is
time.
From raising a Tribunal case through early conciliation, amendments, the inevitable unfair
dismissal, the declaration that one is unlikely to succeed by one’s union, solely based on
statistics, the internal appeal process regarding the unfair dismissal. The cost of being a
litigant in person and the imposition of costs for failing to meet an unrealistic time to
complete a directive imposed by the tribunal is a major source of injustice.
A costs order imposed prematurely, or in breach of an unless order imposed inappropriately
as can be seen by the amount of documentation produced in satisfying the order and the
failure of internal processes to complete, particularly when the case has not been heard on
the evidence, should immediately be made null and void. What such an order does is
encourage respondents to do their utmost to have the claim struck out by alleging breach of
an unless order, deposit order (s38) or allege vexation, scandal or no reasonable prospect of
success.
The imposition of costs.
What you find is that the allegations aren’t stated specifically as vexatious, or scandalous with
a corresponding reason why, they simply quote rule:
37 (a) that it is scandalous or vexatious or has no reasonable prospect of success;
ETs should be required to indicate precisely where the Claimant fell short of one or more of
the three, it should not just be a vague unsubstantiated allegation.
pluralistic society. In the discrimination field perhaps more than any other, the bias in favour of a claim
being examined on the merits or demerits of its particular facts is a matter of high public interest.”
35
Costs in Employment Tribunal
36
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
Carlton McDonald 16
2.9 Out of Court Settlement

If all else fails, this parmcular tacmc is used at the mme of dismissal and at any mme during the
process. This out of court seklement feels like a win and in the case of Deman, who won
$45,000 dollars from an American university, and ten years later sekled for £30,000 for
unresolved issues with a UK university. The problem with this ‘win’ is that it usually results in
terminamon of contract. The claimant gets another job, and has £30,000 which in 2005 would
purchase a house in some parts of the UK. However, nothing changes at the
university/organisamon paying the money. Others in the same organisamon olen simply hear
that the member of staff has lel. The managers conmnue the same racist behaviour and there
is no incenmve for the insmtumon to change. £30,000 aler all is a drop in the ocean for most
UK universimes and a small propormon of the salaries of the perpetramng managers to secure
a NDA.
The Labinjo case was even more stark, he accepted as true the university’s claim that his job
was redundant and accepted a compromise agreement.37 Labinjo went on to say: “Had I been
told the truth, namely, that my employment was being terminated because I brought a claim
for race discriminamon against the University, I would not have compromised my claims and if
I did, it would have been on very different terms”. At the appeal he was told that he (or his
adviser) ought to have known he was not redundant. They effecmvely are saying he is
untruthful when he says he didn’t know he was being dismissed for raising an ET claim.38 So
when evidence emerges, aler the 3 month mme limit, the claimant is not permiked to raise
it. This is the Henderson Abuse of Process tacmc. It is beker to take the money and run.
2.10 Ordinary Unfair Dismissal

A very subtle deception, in a race discrimination case where the claimant is a union official,
or has initiated a protected disclosure (i.e. whistleblowing), is regarded legally, if unfairly
dismissed, as an ‘automatic’ unfair dismissal claimant. Should the final hearing be allocated
by the judge as an ‘ordinary’ unfair dismissal and the claimant refuses to engage in the final
hearing alleging that s/he has been automatically unfairly dismissed then the judge states that
failure to engage is effectively withdrawing the claim(s).
This failure to recognise the PID template a claimant completes, ignoring the public interest
of the case and inappropriately allocating an ordinary unfair dismissal final hearing
significantly let’s society down by failing to acknowledge the public interest. This failure, in
the face of evidence at a PHR, should override every other principle and at least judges should
prioritise public interest issues and ensure public interest issues are heard in a final hearing
on the evidence.
37
Labinjo v University of Salford UKEAT/0618/11UKEAT/0619/11UKEAT/0620/11UKEAT/0621/11: “The
University offered to purchase, at a cost of £28,000 added years in relation to my pension which would treat
me, for pension purposes, as aged 60 rather than 57. The added years would give me a lump sum of £24,299
under the pension scheme and an annual pension of £8,099 per annum.”
38
Labinjo v University of Salford UKEAT/0618/11UKEAT/0619/11UKEAT/0620/11UKEAT/0621/11: “Had I been
told the truth, namely, that my employment was being terminated because I brought a claim for race
discrimination against the University, I would not have compromised my claims and if I did, it would have
been on very different terms”.
Carlton McDonald 17
This very clever technique in dismissing a claim by the judge miscategorising an unfair
dismissal claim as ‘ordinary’ even though it is ‘automatic’. This arises from another change39
after the Underhill Review of ET rules in 2013, Rule 52. This technique, following a PHR, is
where evidence of protective disclosures have been made the judge allocates a short period
of time for an ordinary unfair dismissal for the final hearing. It seems like favourable outcome
which, after years of waiting for the final hearing and having been dismissed, puts a definite
end in sight. Nevertheless, the public interest disclosure remains unaddressed, the person is
likely to get some compensation but unlikely to get his or her job back. Should the claimant
insist that their case is not an ‘ordinary’ unfair dismissal and therefore should fail to engage
in the ordinary unfair dismissal final hearing, the official position is that the claimant has
withdrawn their case. This is extremely unfair, failure to engage, legally, not only puts an end
to the claim but does not permit one to raise it again. To add insult to injury, the Respondent
seeks a costs hearing for that ‘withdrawal’.
2.11 Summary
The evidence is overwhelming that Strike out and sifting of race discrimination claims using a
number of tactical approaches exists. Ultimately, the key mantra is ‘little realistic prospect of
success’. This results in no support from trade unions and ultimately leads to Strike out. In
this way the evidence is never seen, the race discrimination never acknowledged, and the UK
has the impression of being a tolerant nation. Rules and operations in ET race cases seem
intent on keeping discrimination cases away from a final hearing. ETs should view such
discrimination as assault on their claimants by the employers and take measures to put an
end to it.
39
Underhill Review of Employment Tribunal Rules cited in
tribunal-statistics-quarterly: “Dismissed upon withdrawal – under new rule 52, an employment tribunal
shall issue a judgment dismissing a claim where the claimant withdraws it, unless certain criteria are
satisfied. The operation and impact of this new provision is being monitored through these statistics.”
18
These biases are described as ‘implicit’ because they are

not easy to detect and because they operate
automatically, and outside the reach of direct control.40
3. Methodology
The methodology being used is to look at the statements and evidence indicating the
‘unusual’ and ‘difficult’ descriptions of race discrimination claims in the literature, Practice
Guides and where possible academic literature in the literature review. ‘Struck Out’ is a book
by David Renton, a barrister, he exposes a number of issues regarding Tribunals however
although he has a chapter on why so few cases win. He does not look at the claimant’s journey
from ET1 to Strike Out neither, it seems, does anyone look at this in the years since the
Equality Act of 2010. In fact, the author purchased the book from a university library and in
the 11 years since the publication of the book it has been stamped seven times from 2012 to
the date of purchase in June 2023.
The original plan was to search for race claims and analyse by Asian, African, Chinese, East
European etc. There were far too many cases to be able to analyse these by ethnic group. It
was decided to narrow these down to the area of Universities which significantly reduced the
eligible cases but simply searching for “university” didn’t guarantee a lecturer/academic
issue. The university context was decided upon because there is still a glass ceiling in place in
Higher Education (HE). The salary of women had increased significantly in academia, although
still significantly behind that of white men. Yet significantly above that of black men. Although
there have been significant increases in the numbers of black managers41. There is still a long
way to go in terms of equal pay.
The final activity was to review ET statistics. These were difficult to find because since
lockdown there has been a migration of computer systems. There was no data for 2022 –
2023. What was available was up to 2020/21. The 2013 Underhill Review of Employment
Tribunal Rules provided greater powers to judges.
Issues to be covered:
1. Internal Procedures not followed in order to facilitate the declaramon that the claim
is unclear.
2. Out of Time
3. Estoppel
4. Trial window relinquished – Not covered.
5. Amendments objected to as issues arise in response to the Tribunal Claim which
necessitate separate claims to obviate mme wasmng in the PHRs. Not covered
6. deposit orders
40
Studies, 2015, p 30.
41
See 2013 - 2014 HESA data on page 3
Carlton McDonald 19
7. Strike Out – likle chance of success

8. Strike Out – unclear, vexamous, scandalous
9. Deposit orders not applied aler Claimant’s costs presented at Pre Hearing Review –
literature not found
10. Automamc Unfair Dismissal incorrectly designated Ordinary Unfair Dismissal –
literature not found.
The nature of the subject is that there is little academic insight into the analysis as to why race
discrimination claims fail to make it to a final hearing. Where cases exist, much of the analysis
of appeal judges is all that exists in terms of analysing failures in the ET. There are a few
concepts that are not covered in the literature, these will have to be moved to the analysis
stage of the research if no academic references exist in the literature review. In this way we
have a complete analysis of the techniques used to keep race claims from getting to a final
hearing.
In the literature review there was nothing which showed a breach of rule 38 (Deposit Orders),
nevertheless there is a case which is still live in which not only was the defendant put under
oath as part of the deposit order assessment of the Claimant’s means. After the respondent’s
solicitor said, “the claimant is a man of substantial means” the deposit order was not put into
place, and the claims were all struck out. The race discrimination and unfair dismissal
claimant, regarded this as a breach of rule 38. Why put the claimant under oath to verify their
savings and income if there is no intention to impose deposit order(s). This seems to be
another means by which black claimants are denied the opportunity to have their cases heard.
In Renton’s Struck Out, there are times where he questions some judgements. Given judicial
exemption from equality laws, his analysis will indicate the fact that some of the failures
highlighted in his book are likely due to racism and their ability to ‘sift’ applications at
protracted PHR hearings.
Word Limit42
.
42
In order to satisfy the word count remedies are separated out to Appendix 1 (639 words) with 17 reforms,
with the 4 most important reforms from this list mentioned in the concluding chapter. Table captions in
chapter 4 added at the end are approx. 70 words.
20
putting in place structural measures and checks to try to

stop biases from impacting on decisions and actions.43
4. Analysis
4.1 Introduction
The discussion in the Literature Review examined tribunal cases and commentary. This
chapter evaluates statistics of Tribunals from 2007 – 2021. Data migration issues have
resulted in a delay due to needing to thoroughly check the accuracy of data during, and since,
lockdown.44
4.2 Total ET Claims
Table 1 Total number of ET Claims by Jurisdiction
Although sex claims were very high, there was a reduction of approximately 1/3 to 10,231 in
2015, and a further reduction in 2021 to 2,926, i.e. 18% of the percentage of claims in
2007/8. Sex discrimination has substantially reduced in employment. All categories of claims
are down except disability. “For years, one obstacle to success in disability claims has been
43
44
In each of the tables below, 2008/09 is asterisked because it excludes a small proportion of cases due to a
change of computer system during the year.
Carlton McDonald 21
the willingness of tribunals to grant employers a pre hearing review.”45 The data analysis
below indicates that it is not just disability claims that have a PHR obstacle.
4.3 ACAS Conciliation Settlements
Table 2 Percentage of claims settled by ACAS conciliation.
ACAS conciliation negotiated settlements have a reduced percentage in all categories except
sex which has nearly doubled 2007-2021.
4.4 Dismissed at a Preliminary Hearing
Table 2 Percentages of claims dismissed at PHR
45
2012, p. 70.
Carlton McDonald 22
In that the number of all cases dismissed at PHR is 1%, and yet for the discrimination
categories only sex is at 1% means that a disproportionate number of discrimination cases
are dismissed at PHR. The fact that 3% of Religion and Sexual Orientation although their
numbers are small they are still 3 times more likely to be dismissed at PHR.
4.5 Dismissed Rule 27
Table 3 Percentage claims Struck out by Judge alone following the Underhill Review of July 2013
Dismissal on the basis of rule 27 is consistent across the board. This means that there is no
worse treatment for race cases in this jurisdiction.
4.6 Dismissed upon Withdrawal
Table 4 Percentage withdrawn by ET
We aren’t able to ascertain what percentage of these are withdrawals due to being
designated ‘Ordinary’ unfair dismissal rather than automatic unfair dismissal. However all
discrimination jurisdiction withdrawals are lower than withdrawal rates for all cases
suggesting that discriminations are less likely to be withdrawn by the claimant.
Carlton McDonald 23
4.7 Struck Out
Table 5 Percentage of claims struck out by jurisdiction
Apart from sex until 2018, and sexual orientation which has similar percentages to race, race
continues to be struck out more than other discrimination claims. What is clearly noticeable
however, race and religion cases strike out is increasing year on year since 2018.
4.8 Success at Hearing
Table 6 Percentage of claims successful at final hearing
As can be seen in 2017/18 the level of success for all tribunals is 10%. Discrimination cases
are far less likely to succeed. This is quite a finding, suggesting that race claims are no different
Carlton McDonald 24
in terms of their ability to succeed in a tribunal that other protected characteristics, which are
harder to win than unfair dismissals.
4.9 Unsuccessful at Hearing
Table 7 Percentage of claims successful at final hearing
Race and religion have the highest failure rates 12% (1 in 8) at the final hearing compared to
roughly 7% (1 in 14). There is no clear reason as to why this should be the case. The exemption
of the judiciary from equality law may explain it. The failure rate for all cases is 5% (1 in 20).
4.10 Heard at Final Hearing
Table 8 Percentage of cases making it to a final hearing
These figures were achieved by adding the number of unsuccessful claims to the number of
successful claims in the same periods. With all discrimination cases not exceeding 3% success
Carlton McDonald 25
at the final hearing. The fact that no more than 15% (approx. 1 in 6.6), race and religion cases
make it to a final hearing compared to 1 in 10 or 1 in 11 for all other discrimination categories
indicates that discrimination cases have little real prospect of success. Unfair dismissal is
slightly better at 1 in 7.7.46 There is no obvious reason why race claims should be the least
likely to succeed.47
Renton identified ‘some factor’ which made race cases harder to win in 201248 but either
doesn’t know what it is, or is not prepared to state it. That factor, is to do with the racist
attitude of the judges who happen to be exempt from Equality laws in relation to the way in
which they treat claimants and ‘sift’ their claims at PHR. Please don’t think this is limited to
race. In sex discrimination cases judges are exempt from Equality law, a male judge is entitled
to be misogynistic in their treatment of female claimants. A female is more likely to receive
justice if the judge is female. A black claimant is, similarly, more likely to receive justice if the
judge is black.
4.11 Withdrawn
Table 10 Withdrawn by Claimant
46
2012, p. 70, para. 2: “While it is possible to distinguish discrimination claims from other Tribunal cases,
there is nothing specific to discrimination law or the running of the Tribunals to suggest that certain
discrimination cases could be significantly easier to win than others, or indeed that race and religion should
be at the bottom of the pile.”
47
2012, p. 70.
48
2012, p. 70 – 71: “Yet race cases are even less likely to succeed than either age or disability claims and have
only half the chances of success of sex discrimination claims, which have been on the statute book for a
similar period of time to race. There is something about race claims which holds tribunals back, some factor
separate from the formal structure of the law, which makes race cases harder to win.”.
Carlton McDonald 26
2017/18 has the lowest withdrawal rates for the 14 years availability of data, yet with the
exception of sex claims that year, all other discrimination claims are significantly higher than
the 12% withdrawal rate of all tribunals. This means that withdrawal rates of all other
tribunals is less than 12% because the average discrimination withdrawal rate is 16%. This is
an ideal area for further data collection and research in order to understand better what is
going on here.
4.12 Struck Out after Deposit Order Oath

Although search was made no cases where deposit orders were assessed but not applied were
discovered. Yet it may happen, and where it does can only suggest, as deposit orders are not
made and the case struck out, that something irregular is going on.
Formal Employment Procedures.

The 2002 Employment Act required disciplinary procedures and grievance procedures to be
made in writing with a hearing followed by the right of appeal. All outcomes are to result in
an outcome letter summarising the conclusion of the issue. There is a link between these
procedures and any subsequent Tribunal claim. Although there is no requirement for an
appeal to be made, failure to do so could result in 10 – 50% reduction of compensation for
failing to exhaust internal opportunities for resolution. Where the employee’s complaint was
a non-dismissal matter, a claim could not be heard unless an internal grievance was raised
first. The idea being that full explanation and resolution internally will significantly reduce any
subsequent Tribunal time.
Employment practices today would view a manager treating his/her workers fairly would be
regarded as ‘disloyal’ by senior executives compared to managers in the 1960’s.49
Claimants tended to get legal advice in preparing their claims, the employers’ response to
2002 EA is to take legal advice “which usually went to the best way to dismiss a worker rather
than whether dismissal was the right answer”.50
49
2012, p132, para 3: “One problem with the 2002 Employment Act is that they put too much emphasis on
managers to deal fairly with workers complaints… In the 1960’s most workplaces had some independent-
minded managers who were zealous to protect their own sections, if need be, from the whims of senior
management. Since then, the phenomenon of independent-minded managers has become so rare as to be
practically extinct… A manager today protecting his or her workers from unfair dismissal would be seen as
disloyal”.
50
2012, p135, para 2.
Carlton McDonald 27
4.13 Improvements to the ET System

Employers are primarily responsible for wasted ET time.51 The ET is biased towards
Employers:52 The 2013 Underhill Review was stated in Renton as likely to be met with
opposition.53 Although the Review was to be reviewed after implementation, no publicly
available data was available at time of writing.
It is worth pointing out “the vast majority of judges are non-lawyers”.54 These non-lawyers
will be heavily influenced by the Respondent’s legal team with the institutional one-sided
legal precedent presentation. The judge cannot possibly, without the years of qualification
and experience do anything except trust the solicitors and barristers whose income comes
from their clients and see it as their duty to win by whatever means legally possible. As a
consequence, the Respondent solicitor team have an unhealthy amount of influence on the
judge in ETs.
4.14 Discrimination Claim Reforms

See Appendix 1 for a list of suggested ET reforms.
4.15 Summary
The evidence is incontrovertible: discrimination cases are 1 in 6 to 1 in 11 likely to make it to a final
hearing. All discrimination cases have success rates of 6% to 12%, i.e. have little prospects of success
but that’s because few make it a final hearing where the evidence is presented.
51
2012, p138, para 5: “If tribunal time is wasted, there is a better case to say that the primary culprits are
employers running hopeless defences to reasonable claims.”.
52
2012, p139, para 2: “To require a response to be struck out unless returned within 28 days of receipt of the
claimant's claim form rather than as present, where the time limits are applied strictly against claimants,
but with the greatest possible flexibility in favour of respondents.”
53
2012, pp140-141: “the government proposes in addition that an employment judge should have the power
to strike out claims at a case management discussion as well as at a pre hearing review. This proposal is
likely to be opposed by the EAT judges repeatedly complain that judges strike out meritorious claims
prematurely, compelling the appeal courts to send claims after a long delay back to the beginning to be
heard properly”.
54
Public Law: Text, Cases, and Materials (4th edn) Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal
Murkens, p506.
28
it is alarming for well-intentioned and anti-racist

individuals to find that they harbour biases, and may be
complicit in discrimination.55
5. Conclusion
Although there is the real issue of unconscious bias, there does appear to be evidence of
conscious bias at the level of the ET. There is much evidence that the EAT identifies failings at
the ET. This suggests that not only is the bias real, in some cases it is conscious and the
mechanisms for preventing hearings on the evidence quite strategic: preventing a hearing, on
the evidence, by all means possible.
The major issues are continuing acts of discrimination, the time to make a claim, the PHR
process seems over enthusiastic at sifting rather than understanding claims. There is plenty
of evidence of racism in ET. The discrimination applies to all protected characteristics.
As the judiciary are exempt from equality laws. If it were not possible for judges to be racist,
their exemption would make sense. Is there something about wearing a wig which makes
judges unable to be misogynistic, racist, homophobic etc? Of course not. As they may be
racist, exemption is effectively a licence to kill. This sounds extreme, but someone’s career
and income are at stake. These may result in life changing circumstances, years of PHRs, and
appeals. Employment Tribunals ought not to be seeking to sift as many claims as possible,
unless… they have resilient employment practices to ensure people are not treated unfairly
for having protected characteristics.
The most effective reformation of ETs require discrimination claim reforms indicated in
section 4.14. The most significant four reforms are:
1. Allow discriminamon claimants 28 days to claim, and remain paid unml the final
hearing. This addresses the mming issue.
2. To record all proceedings as a maker of evidence of judiciary conduct as well as
claimant and respondent behaviour. This provides evidence and clarity of the claim
and any judicial discriminatory behaviour.
3. Remove judiciary exempmon from Equality laws. Not only would there be a significant
reducmon in the amount of cases appealed before resolumon. Employers would not be
able to rely on the fact that discriminamon exists in the judiciary and the siling process
would substanmally reduce.
4. Instead of striking out, apply deposit orders and decide on the evidence in a full
hearing. This results in judgments on the facts and evidence giving claimants their ‘day
in court’.
55
Carlton McDonald 29
Although, at the start, it was thought that race cases were unique in their experiences in ETs,
it applies to all forms of discrimination. The 2021 data suggests success rates of discrimination
claims are worst for race and religion claims.
Further work to improve the analysis and ET efficiency is primarily collecting and presenting
data: dates of initial claim, dates and no of related claims, date of dismissal, no. of grievances
incomplete, duration of the continuing act, etc.
Carlton McDonald 30
References (Alphabetical order of title and author)

Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] All ER (D) 97 (Jan)
Anyanwu v South Bank Student Union (Commission for Racial Equality, interveners) [2001]
UKHL 14: “Discrimination claims should not be struck out as an abuse of process
except in the most obvious and plainest cases. Discrimination cases are generally
fact-sensitive, and their proper determination is vital in a pluralistic society. In the
discrimination field perhaps more than any other, the bias in favour of a claim being
examined on the merits or demerits of its particular facts is a matter of high public
interest.”
Attorney General v Deman [2006] Lexis Citation 1082, para. 3.
Bahad v HSBC Bank Plc [2022] EAT 83: “the appellate courts have for many years urged
caution in striking out discrimination and public interest disclosure claims. Yet, on
occasions employment tribunals having directed themselves that it is an
extraordinary thing to do, strike out claims that are far from unusual. Experienced
employment judges may sometimes feel that it is pretty clear that a claim will not
succeed at trial and wish to save the expense and, possibly, the distress to the
claimant of a failed claim. But that is what deposit orders were designed for. To
strike out a claim the employment judge must be confident that at trial, after all the
evidence has come out, it is almost certain to fail, so it genuinely can be said to have
no reasonable prospects of success at a preliminary stage, even though disclosure
has not taken place and no witnesses have given evidence. When discrimination
claims succeed it is often because of material that came out in disclosure and
because witnesses prove unable to explain their actions convincingly when giving
evidence.“
Bahad v HSBC Bank Plc [2022] EAT 83, para 31:
Costs in Employment Tribunal
Chaudhary v British Medical Association [2007] All ER (D) 455 (Jul): “treated Mr Chaudhary
in the same way that it treated, or would treat, its other members in the same or
similar circumstances; it investigated the merits of his discrimination claims against
the regulatory medical bodies and persons; it concluded that there was no real
prospect of successfully challenging the lawfulness of the decisions that Mr
Chaudhary alleged were racially discriminatory; and it informed him that it could
take no action on his behalf, as the BMA does not support its members' claims,
unless they have a real prospect of success”.
Chaudhary v British Medical Association [2007] All ER (D) 455 (Jul) para 242: “the ET said
that the Southampton proceedings had had a low chance of success due to being
brought out of time;”
BBC Pamphlet, Going to Britain, (circa 1959) https://www.bl.uk/collection-items/bbc-
pamphlet-going-to-britain [accessed 23/03/2023].
WILLIAMS LECTURE, THE RULE OF LAW, p15.
WILLIAMS LECTURE, THE RULE OF LAW: “Virtually every significant government
security initiative implicating civil liberties – including penalizing speech, ethnic
profiling, guilt by association, the use of administrative measures to avoid the
Carlton McDonald 31
safeguards of the criminal process, and preventive detention – has originated in a

measure targeted at noncitizens.”
Deman v University of Bradford [2006] All ER (D) 12 (Jun)
The Employment Tribunals Rules of Procedure 2013 (as subsequently amended up to 6th
October 2021): Striking out 37.—(1) At any stage of the proceedings, either on its
own initiative or on the application of a party, a Tribunal may strike out all or part of
a claim or response on any of the following grounds—
The Employment Tribunals Rules of Procedure 2013 (as subsequently amended up to 6th
October 2021): Irregularities and non-compliance
6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or
any order of the Tribunal (except for an order under rules 38 or 39) does not of itself
render void the proceedings or any step taken in the proceedings. In the case of such
non-compliance, the Tribunal may take such action as it considers just, which may
include all or any of the following—
waiving or varying the requirement;
striking out the claim or the response, in whole or in part, in accordance with rule 37;
barring or restricting a party’s participation in the proceedings;
awarding costs in accordance with rules 74 to 84.
Fearon v Chief Constable of Derbyshire [2004] Lexis Citation 1079
Fraser v University of Leicester and others UKEAT/0155/13: “[56] specifically observed that
the complaint of victimisation arose only under the second claim and, to the extent
that it related to matters occurring before 28 March 2011, was out of time.”
Guide to Judicial Conduct, Judiciary of England and Wales (2016) Appendix 2 A brief guide to
the Equality Act 2010: “Whilst the ‘judicial function’ is exempt from the prohibition
on discrimination in the exercise of public functions, this exemption is likely to be
limited to the core, adjudicative function. Ancillary functions, e.g. training,
mentoring, conducting appraisals, managerial or committee functions and conduct
towards colleagues or court staff will not be exempt.”
Henderson v Henderson (1843) 3 Hare 100, 67 ER 313
2013 - 2014 HESA data on page 3
Dr Jules Holroyd, Implicit racial bias and the anatomy of institutional racism, Centre for
Crime and Justice Studies, 2015, p 30.
Crime and Justice Studies, 2015, p32.
Crime and Justice Studies, 2015, pp 30 – 32.
https://www.goal.com/en-gb/news/how-many-black-managers-coached-premier-league-
clubs/h01an0r6n5w41uf9dunlsxejg [accessed 20/07/2023].
https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-
2023/guide-to-tribunal-statistics-quarterly
2023/guide-to-tribunal-statistics-quarterly: “Under the previous ET fees scheme,
claims were separated into two distinct types, each attracting a different fee. ‘Type
Carlton McDonald 32
A’ claims were more straightforward, and so had a lower fee. These included claims
about unpaid wages, payment in lieu of notice and redundancy payments. ‘Type B’
claims involved more complicated issues, and therefore attracted a higher fee. These
types of claim tended to be those involving unfair dismissal or discrimination
complaints.”
2023/guide-to-tribunal-statistics-quarterly: “Dismissed Rule 27 – complaints
dismissed by an Employment Judge after initial consideration of claim and response.
An Employment Judge can dismiss a claim, or any part of a claim, if s/he considers
that it has no reasonable prospect of success, or that the tribunal has no jurisdiction
to hear the claim (or part thereof). This is a new provision introduced on 29th July
2013.”
Koudriachova v University College London [2015] All ER (D) 319 (Jun)
Labinjo v University of Salford
UKEAT/0618/11UKEAT/0619/11UKEAT/0620/11UKEAT/0621/11: “The University
offered to purchase, at a cost of £28,000 added years in relation to my pension
which would treat me, for pension purposes, as aged 60 rather than 57. The added
years would give me a lump sum of £24,299 under the pension scheme and an
annual pension of £8,099 per annum.”
Labinjo v University of Salford
UKEAT/0618/11UKEAT/0619/11UKEAT/0620/11UKEAT/0621/11: “Had I been told
the truth, namely, that my employment was being terminated because I brought a
claim for race discrimination against the University, I would not have compromised
my claims and if I did, it would have been on very different terms”.
The Lancet, Volume 339, Issue 8798, 11 April 1992, Pages 887-889.
Leander v Goldsmiths College (University of London) [2001] EWCA Civ 1709
Longstaff P, Paragraph 20, Rojha v Zinc Media Group Plc [2023] EAT 39
Marcan, Paragraph 36, Rojha v Zinc Media Group Plc [2023] EAT 39
Downham Moore AM, Race, class, caste, disability, sterilisation and hysterectomy, Medical
Humanities 2023; 49:27-37.
Practice-Direction-2018-19-09.pdf, Section 12.6.2
Practice-Direction-2018-19-09.pdf, Section 12.6.3: “Unsuccessful pursuit of an allegation of
bias or improper conduct, particularly in respect of case management decisions, may
put the party raising it at risk of an order for costs against them”.
Public Law: Text, Cases, and Materials (4th edn) Andrew Le Sueur, Maurice Sunkin, and Jo
Eric Khushal Murkens, p506.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
Race discrimination, Practice Note, LexisPSL Employment Practical Guidance, [Accessed
17/07/2023]: “Proving and finding race discrimination is always difficult because it
involves making a finding about a person’s state of mind and why they have acted in
a certain way towards another, in circumstances where they may not even be
conscious of the underlying reason and will in any event be determined to explain
their motives or reasons for what they have done in a way which does not involve
discrimination. It is unusual to find direct evidence of discrimination, and normally
the tribunal’s decision will depend on what inference it is proper to draw from all the
relevant surrounding circumstances”.
Carlton McDonald 33
David Renton, Struck Out Why Employment Tribunals Fail Workers and What Can be Done,
Pluto Press, 2012, p69, para 2.
Pluto Press, 2012, p. 70.
Pluto Press, 2012, p. 70, para. 2: “While it is possible to distinguish discrimination
claims from other Tribunal cases, there is nothing specific to discrimination law or
the running of the Tribunals to suggest that certain discrimination cases could be
significantly easier to win than others, or indeed that race and religion should be at
the bottom of the pile.”
Pluto Press, 2012, p. 70.
Pluto Press, 2012, p. 70 – 71: “Yet race cases are even less likely to succeed than
either age or disability claims and have only half the chances of success of sex
discrimination claims, which have been on the statute book for a similar period of
time to race. There is something about race claims which holds tribunals back, some
factor separate from the formal structure of the law, which makes race cases harder
to win.”.
Pluto Press, 2012, p132, para 3: “One problem with the 2002 Employment Act is that
they put too much emphasis on managers to deal fairly with workers complaints… In
the 1960’s most workplaces had some independent-minded managers who were
zealous to protect their own sections, if need be, from the whims of senior
management. Since then, the phenomenon of independent-minded managers has
become so rare as to be practically extinct… A manager today protecting his or her
workers from unfair dismissal would be seen as disloyal”.
Pluto Press, 2012, p138, para 5: “If tribunal time is wasted, there is a better case to
say that the primary culprits are employers running hopeless defences to reasonable
claims.”.
Pluto Press, 2012, p139, para 2: “To require a response to be struck out unless
returned within 28 days of receipt of the claimant's claim form rather than as
present, where the time limits are applied strictly against claimants, but with the
greatest possible flexibility in favour of respondents.”
Pluto Press, 2012, pp140-141: “the government proposes in addition that an
employment judge should have the power to strike out claims at a case management
discussion as well as at a pre hearing review. This proposal is likely to be opposed by
the EAT judges repeatedly complain that judges strike out meritorious claims
prematurely, compelling the appeal courts to send claims after a long delay back to
the beginning to be heard properly”.
Carlton McDonald 34
Pluto Press, 2012, pp144 – 145: “Anyone who has acted for workers in more than a
handful of employment cases will know that employment tribunals are littered with
daily instances of practises such as employers dismissing employees on false charges
of misconduct, or raising allegations of incapability as a stratagem to avoid paying
what (for workers with lengthy periods of continuous service) maybe relatively
generous contractual redundancy payments, or dismissing following serious
allegations to which the employer has never bothered to properly investigate.”
Pluto Press, 2012, p144, para 4: “Making reinstatement the primary remedy for
unfair dismissal…with the claimant only having the right to seek compensation
instead”.
Pluto Press, 2012, pp148 para 2: “a large majority of claimants who have been
successful with a claim for unfair dismissal receive awards which are significantly less
than they would have been paid had they never been dismissed. The operating
principle should surely be to compensate a successful worker in all but the most
exceptional cases for their actual loss.”
Underhill Review of Employment Tribunal Rules cited in
https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-
march-2023/guide-to-tribunal-statistics-quarterly: “Dismissed upon withdrawal –
under new rule 52, an employment tribunal shall issue a judgment dismissing a claim
where the claimant withdraws it, unless certain criteria are satisfied. The operation
and impact of this new provision is being monitored through these statistics.”
Carlton McDonald 35
Appendix 1 Suggested Employment Tribunal Reforms

1. Record PHR proceedings as well as discriminamon tribunal hearings. Employer
disciplinary and grievance procedures should be recorded by default.
2. Remove Exempmon from Equality Law for the judiciary.
3. Discipline and train misogynists and racists from the judiciary.
4. Employers should automamcally conmnue to pay automamc unfair dismissal and
discriminamon claimants – to speed up proceedings. Prospects of achieving
reinstatement … would be dramamcally increased if tribunals were heard within a few
weeks rather than months or years of the original decision to dismiss.56
5. Extend the 7 day claim for conmnued pay to 28 days for ordinary unfair dismissal and
discriminamon claimants as they end up being LIPs having no awareness of this very
mght restricmon. Most claimants are not in a posimon to go without a salary for months
or years and consequently, most unfairly dismissed staff take a seklement and will seek
another job, any job, to keep income flowing into their household. This, in some
instances, puts an end to the dismissed worker’s career, and may result in depression.
6. Internal processes are meant to complete within 3 months, extending these internal
processes more than 6 months, or not starmng them at all, should incur cumulamve
penalmes. One value per grievance going beyond 6 months, another value for failure
to complete the grievance process for each grievance incomplete by employers.
7. Make failure to pursue internal grievance process penalmes higher or automamcally
20% with a 0.5% increase for each month aler the first 12 months between dismissal
and the final hearing. Each addimonal unpursued grievance should be an extra 2% each
for the first addimonal 5, 3% for the next addimonal 5, 4% for each addimonal grievance
over 10 uncompleted without agreement.
8. Make dismissal, aler lodging a tribunal discriminamon claim, illegal unml the final
internal hearing outcome takes place or seklement is agreed.
9. Record the data for discriminamon claims: protected characterismc, claims start date,
and out of court seklements, strike out, deposit order amounts, unless order. PID (yes,
no), Union Rep (yes, no)
10. Having allocated deposit orders, judges should not later strikeout due to
unsubstanmated vexamon, scandal or lack of clarity.
11. Write quesmons requiring clarificamon with one hour’s nomce required to provide
answers in wrimng to a maximum of 7 quesmons per day. 35 quesmons can be answered
with a week, this gives the claimant the opportunity during the case management
process mme to remove uncertainty.
12. Se|ng unreasonable mme limits to complete documentamon is evidence of
discriminamon, neither the judge, legal representamve, or respondent should be se|ng
a mmetable that suits their agenda.
13. When reconsideramon is requested failure to reconsider on grounds of law is evidence
of discriminamon
14. Enforce reinstatement – failure to do so is, in extreme circumstances, pu|ng an end
to a person’s career.
15. Ensuring the ET3s are provided and in a mmely manner.
56
2012, p145, para 3.
Carlton McDonald 36
16. Reinstatement Remedy - According to Renton, a pracmcing barrister, unfair dismissal

occurs “daily”, dismissing on false charges of misconduct, raising allegamons of
incapability, failing to properly invesmgate.57 Having made a claim, the most effecmve
remedy would be reinstatement.58
17. Adequate compensamon - As a result of the ET ability to reduce an award, e.g. for not
taking sufficient steps to find a new job. The majority of compensamon awards do not
cover all the losses59. Yet if one does find a new job they are unlikely to want their old
job back. A claimant who loses their job aler raising a claim and is dismissed months
later having not taken mme off sick, is not someone who wants to change career, their
compensamon should not be reduced, neither should employers be rewarded for
deliberately taking as long as they can to get to a final hearing, while pleading for strike
out throughout the journey.
57
2012, pp144 – 145: “Anyone who has acted for workers in more than a handful of employment cases will
know that employment tribunals are littered with daily instances of practises such as employers dismissing
employees on false charges of misconduct, or raising allegations of incapability as a stratagem to avoid
paying what (for workers with lengthy periods of continuous service) maybe relatively generous
contractual redundancy payments, or dismissing following serious allegations to which the employer has
never bothered to properly investigate.”
58
2012, p144, para 4: “Making reinstatement the primary remedy for unfair dismissal…with the claimant only
having the right to seek compensation instead”.
59
2012, pp148 para 2: “a large majority of claimants who have been successful with a claim for unfair
dismissal receive awards which are significantly less than they would have been paid had they never been
dismissed. The operating principle should surely be to compensate a successful worker in all but the most
exceptional cases for their actual loss.”.

To What Extent Is There Evidence of Racist Practices at Employment Tribunals?

Uploaded by

Copyright:

Available Formats

You might also like

To What Extent Is There Evidence of Racist Practices at Employment Tribunals?

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

To What Extent Is There Evidence of Racist Practices at Employment Tribunals?

Uploaded by

Copyright:

Available Formats

0

University of Law, Birmingham

Academic Year 2022-2023

Carlton McDonald Candidate No: C2080976

Word Count: 7,940

“To what extent is there evidence of racist practices at Employment Tribunals?”

we all know that explicit racism tarnishes policing and

1.1. Employment in the UK for black employees.

Why you should be concerned:

1.2 The Rule of Law for Minorities

1.3 Burden of proof in race claims

1.4 Strategies for avoiding Race Discrimination Hearings

Chapter 3 is a description of the methodology used. Chapter 4 Critical Data Analysis of

Figure 1 Employment Tribunal receipts and disposals15

2.2 Out of Time

2.4 Little Chance of Success

2.5 Deposit Orders

2.6 Unless Orders

2.7 Strike Out – Scandalous or Vexatious

Rule 37 Striking Out

23. Rule 6 provides:30

In contrast, Choudhury J (President) in Malik v Birmingham City Council UKEAT/0027/19, the

2.8 Awarding Costs

37 (a) that it is scandalous or vexatious or has no reasonable prospect of success;

2.9 Out of Court Settlement

2.10 Ordinary Unfair Dismissal

These biases are described as ‘implicit’ because they are

7. Strike Out – likle chance of success

putting in place structural measures and checks to try to

4.2 Total ET Claims

Table 1 Total number of ET Claims by Jurisdiction

4.3 ACAS Conciliation Settlements

Table 2 Percentage of claims settled by ACAS conciliation.

4.4 Dismissed at a Preliminary Hearing

Table 2 Percentages of claims dismissed at PHR

4.5 Dismissed Rule 27

4.6 Dismissed upon Withdrawal

Table 4 Percentage withdrawn by ET

4.7 Struck Out

Table 5 Percentage of claims struck out by jurisdiction

4.8 Success at Hearing

Table 6 Percentage of claims successful at final hearing

4.9 Unsuccessful at Hearing

Table 7 Percentage of claims successful at final hearing

4.10 Heard at Final Hearing

Table 8 Percentage of cases making it to a final hearing

Table 10 Withdrawn by Claimant

4.12 Struck Out after Deposit Order Oath

Formal Employment Procedures.

4.13 Improvements to the ET System

4.14 Discrimination Claim Reforms

it is alarming for well-intentioned and anti-racist

References (Alphabetical order of title and author)

safeguards of the criminal process, and preventive detention – has originated in a

Appendix 1 Suggested Employment Tribunal Reforms

16. Reinstatement Remedy - According to Renton, a pracmcing barrister, unfair dismissal

You might also like