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Race Discrimination Claims – What Happens Next?

If you have been unable to resolve the issues with your employee through an informal method or via a grievance or appeal process then you may find your receive a formal written claim against you from the employment tribunal office for race discrimination.

At this point, if you have not already done so, it would be wise to take specialist legal advice from an employment lawyer as you will as you will be given a fixed time within which to respond.  Failure to respond may leave you with no defence to the claim. 

You will also be contacted by the Advisory Conciliation and Arbitration Service (“ACAS”), an organisation funded by the government who offer a free conciliation service, and can provide help to resolve the issue.

Resolving the complaint through ACAS can take away the management time and expense of having to attend an employment tribunal hearing and reduce legal costs. 
You can also negotiate a settlement with your employee without the help of ACAS, at any time before the tribunal determines the outcome of your case.  If you decide not to use ACAS, or if your settlement negotiations do not work out then the race discrimination case will eventually go to an employment tribunal hearing.  It all depends on your point of view but many employers will not want to settle race discrimination claims just to save costs, as they send a ‘moral hazard’ message to other workers that it might be easy to make a quick buck.  Employers generally only settle if it starts to look likely they will lose, or where the employee has been dismissed and any settlement can be the subject of a ‘gagging’ clause.    

The hearing can last from one day to several weeks, depending on how many witnesses need to be called to give evidence.   The employment tribunal hearing is not held in court.  The hearing will take place in front of a judge and two lay people, in an employment tribunal office.

Before the hearing the employment tribunal may make orders setting out what documents or information have to be provided by each side.   Each side also has to give written versions of what each witness will say at the hearing to each other, so that everyone know what the evidence will be before the date of the hearing.

It is important to accurately identify what documents you should disclose and to make sure that any witnesses you intend to call have time to prepare witness statements about the events that took place.

Non-attendance of witnesses could cause the panel to take little notice of their written statements at the tribunal. 

You need to ensure the witnesses understand what will happen at the tribunal.  Each witness can be cross examined by the complainant or the complainant’s representative.  This means they can ask questions about the witness’s version of events to show that it is wrong or the explanation for it is wrong.  Obviously the employer or their representative can cross examine the complainant as well.  The tribunal panel may also ask questions, if they feel a topic or issue has not been covered or clarified sufficiently.    All of this can be a long and uncomfortable procedure but witnesses simply need to tell the truth and to be clear if they are unsure or cannot remember something accurately.   

If the claim is unsuccessful, it is rare for the tribunal to award costs against the claimant.  Your victory is only a moral one.

If the race discrimination case is successful, the employment tribunal panel may award compensation.  They may also make a declaration, and recommendations to reduce the effect of race discrimination against the complainant or against the workforce in general.  On the subject of compensation you may be able to give evidence that could reduce that amount.  You may have more information about comparators than the complainant or about the jobs market that suggests another job could be more easily found.