Arguments of institutional racism are being brought to the Employment Appeal
Tribunal to bolster claims of discrimination under the Race Relations Act.
Christopher Mordue reports
The issue of institutional racism has received much attention following the
Macpherson report into the Metropolitan Police’s handling of the Stephen
Lawrence murder inquiry.
In response to that report, the Race Relations (Amendment) Act 2000 has
placed new duties on a range of public authorities to take action to eliminate
race discrimination and promote good race relations (employers’ Law, May).
The Act gives no additional rights or causes of action to employees – it is
the Commission for Racial Equality that is to enforce it. But how far can
employees use the concept of institutional racism to assist complaints of
discrimination under the Race Relations Act 1976?
In two recent decisions – Hendricks v the Commissioner of Police for the
Metropolis and Commissioners of Inland Revenue v Morgan (both unreported) – the
Employment Appeal Tribunal has largely rejected the notion that allegations of
institutional racism have any direct application to claims of discrimination
under the RRA.
It is the statutory definition of unlawful discrimination under the RRA, the
EAT has said, which must be satisfied and this is wholly different to the
concept of institutional racism. In Morgan, the EAT was particularly critical
of a finding of institutional racism within the applicant’s department:
"Tribunals have quite enough to do in race cases determining whether the
requirements of the statutes are met or not, without venturing, as this tribunal
did, into serious and wounding conclusions based on charges… unknown to the
law."
Nevertheless, both cases illustrate that arguments of institutional racism
may have some relevance to complaints under the RRA. In Morgan, the EAT
acknowledged that in claims of indirect discrimination, the issue might
legitimately arise of whether the employer’s habitual rules and practices were
such that the institution could fairly be described as racist. However, it
stressed that such considerations would only be a step in the overall process
of determining whether the individual employee’s claim was valid.
The issue of whether institutional racism exists essentially focuses on the
prevailing climate and practice within an organisation. Such issues may become
relevant in employment claims under the RRA in two ways.
First, as in Morgan, applicants may legitimately produce evidence of the
employer’s treatment of other employees of different racial groups to show that
discriminatory practice exists, from which it can be inferred that the
treatment they received amounted to unlawful discrimination.
Second, as in Hendricks, the existence of a discriminatory regime, policy,
rule or practice may be of vital importance in determining whether a tribunal
complaint has been brought within time.
Hendricks instituted tribunal proceedings in March 2000 alleging sex and
race discrimination virtually from the date she joined the Met. She complained
of 99 incidents of less favourable treatment from 1989 onwards, the majority of
these occurring between 1989 and 1994. The allegations involved 50 police
officers and at least three different workplaces. However, her complaint made
no reference to any act of discrimination occurring in the three months before
her tribunal complaint.
At a preliminary hearing, the tribunal accepted that Hendricks’ complaint
was not of isolated acts of discrimination, but rather of a continuous act of
discrimination throughout her employment. Accepting an argument essentially
underpinned by an allegation of institutional racism, it concluded that
Hendricks had made out a prima facie case that the Met operated a generalised
policy of discriminating against women and those from ethnic minorities. This
climate of discrimination was a "policy, rule, practice or regime" that
led to discriminatory acts being committed against her.
This decision was overturned by the EAT. The policy identified by the
tribunal was too vague and ill-defined to amount to a continuing act. Something
more specific and concrete was needed. All Hendricks’ allegations concerned her
own treatment – they could not form the basis of a prima facie case that the
entire Met had a generalised policy over an 11-year period of discriminating
against all women and all members of ethnic minorities. In particular,
Hendricks had not shown that the specific incidents she relied on, extending
over many years and involving numerous individuals, were in any way connected.
Without such co-ordination or concerted action to link the acts, no practice or
policy could be inferred. The tribunal had failed to consider the specific
allegations and the question of what continuing act could properly be inferred
from them.
The Hendricks case is an important reminder of the elements necessary to
show a continuing act of discrimination. Had Hendricks succeeded, the time
limits under the RRA would have become meaningless – as long as the alleged
culture of discrimination existed, the relevant time period for bringing a
complaint would not have started to run, allowing for complaints of incidents
many years earlier.
The case, however, must be viewed with some caution. Whether there is a
continuing act of discrimination will depend on the facts of each case. In
particular, the outcome may be very different if the applicant alleges a more
specific policy or practice and can show a connection between a series of
discriminatory incidents.
The Morgan case illustrates just this point. Morgan also complained of a
continuing act of discrimination, namely that her progress through her employer’s
grading structure was slower than that of her white colleagues. The tribunal’s
finding in her case of a continuing act based on a practice or policy within
her department was upheld on appeal. Unlike Hendricks, Morgan had alleged a
specific policy or practice and had produced evidence about the treatment of
others within the same or different ethnic minorities within her department –
it was not an allegation based purely on the treatment of one employee.
Morgan had also shown a connection between the acts complained of since they
had all happened under the same manager. A further difference was the existence
of statistical evidence about the rate of promotion of employees from different
racial groups to support the allegation of discriminatory practice.
Aside from the relevance of arguments about institutional racism, these
cases illustrate a wider issue raised by discrimination complaints based on
continuing acts. Hendricks is an extreme example of the prevailing trend for
applicants to base their claims on a series of events over many years. This
causes huge financial and practical problems for employers.
Had Hendricks’ complaint proceeded, the hearing was expected to last for
more than three months, at enormous expense, involving approximately 100 witnesses
and an examination of events over a 13-year period. There would have been
difficulties in tracing witnesses and relevant documents and the memories of
the witnesses would undoubtedly have been impaired by the substantial passage
of time since the events. The EAT itself noted that allowing cases to be
presented in this way would place a huge burden on the tribunal system.
Nevertheless, it is difficult to have cases struck out as being out of time.
At any preliminary hearing on this point, the tribunal has to assume that the
alleged discriminatory acts occurred – the issue is whether, in principle,
these allegations indicate a continuing act. If the alleged policy or practice
is clearly identified by the applicant and the incidents complained of have a
genuine common thread, the case is likely to be allowed to proceed in full.
Even if certain allegations are out of time, applicants may still be able to
produce evidence to support arguments that the treatment directly complained of
was taken on discriminatory grounds. The Court of Appeal in Anya, 2001, ICR 847
cautioned tribunals against preventing background evidence of this type being
called.
The net result is that race discrimination cases are becoming increasingly
expensive to defend. While in Hendricks, the EAT suggested tribunals should use
their recently increased powers of case management to ensure cases are dealt
with expeditiously, efficiently and proportionately, the complexity of
discrimination law makes this a difficult and uncertain task.
Christopher Mordue is an associate at Pinsent Curtis Biddle
Find out more…
on Race Relations Acts
on tribunal time limits
www.employmenttribunals.gov.uk
Key points
– Discrimination claims must normally
be made within three months of the act complained of or at the end of a
continuing act of discrimination. An applicant can only claim compensation for
discriminatory acts if the claim is brought within time.
– A continuing act must involve the application of a
discriminatory policy, practice, rule or regime. The applicant must show a
specific policy or practice relevant to their own treatment and that the
specific incidents complained of are connected
– There is a distinction between continuing acts and acts with
continuing consequences. For example, a failure to promote an employee has
continuing effects, but is a one-off act. However, if the employer has a rule
or policy that a particular job is open only to male employees, or white
employees, there is continuing discrimination. As long as the rule or policy is
in force an employee will be able to present a claim
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– Applying for a preliminary hearing to determine whether the
claim or part of it is in time may be particularly worthwhile if there is no
alleged discriminatory act in the three months before the tribunal claim is
presented, or where no specific policy, rule, regime or practice has been
identified or the events complained of are unconnected
But note that at the preliminary hearing the tribunal will
assume that the discriminatory acts occurred; and that as long as one part of
the complaint is within time the whole case will not be struck out. The time
limit may only restrict the issues on which the applicant can recover
compensation – the out-of-time issues could still form part of the applicant’s
case as background evidence of discrimination.
