Employment Law Advocates

Consider the followings two scenarios: a black person claims race discrimination on the grounds that she has wrongly been assumed to be mentally ill; and a white person claims race discrimination on the grounds that she has wrongly been assumed to be mentally ill. Even without knowing any of the facts, the first case seems immediately more plausible than the second and the reason for this is that there is a well-known and widespread tendency to overrefer and overdiagnose black people with mental illness.

The next question is whether this stereotype is a sufficent to found a tribunal claim. In the case of Johnson v Coopers Lane Primary School, the Employment Appeal Tribunal concludes that it is not, for the persuasive reason that it is unjust to make a finding of discrimination against an employer without some evidence relating specifically to the behaviour of that particular employer, rather than just people in general. This echoes some very similar reasoning by Justice Underhill in the decision of B and C v A.

However, Judge Ansell appears to go further than this. He agrees, in paragraph 40, with a submission of the respondent that tribunals should not take judicial notice of the existence of stereotypes, even in cases where (unlike this one) there is statistical evidence to support them. It is true that such evidence is never determinative on its own but surely it must be right that it can be used to bolster a case where other reasons to suspect discrimination exist. A fundamental rule of evidence is that the more unlikely an event, the stronger evidence is required to show that it took place. A corollary of this is that events which can be shown to be more likely than others will require less compelling evidence in their support.

I am not even certain that statistical evidence would be strictly necessary in a case like this. There is a convention that a tribunal panel hearing a race discrimination case should include at least one member with special experience of race relations. Such a person would undoubtedly be aware of the stereotype explored here, and also numerous others, and would therefore be in a position to be alive to their use.