In February 2017, another brick was firmly placed in the construction of institutional racism in the UK when the Ministry of Justice (MoJ) implemented its policy of publishing all employment tribunal decisions online, in the interests of transparency, including claims settled out of court. It did so without warning claimants and without adequate protection for them. The outcome is that some claimants whose names have been published have subsequently been blacklisted by employers and not found employment since.
Other European countries have implemented a similar policy, but have done so more sensitively, protecting the human and data rights of their citizens. Furthermore, a body of European recommendations was produced that the UK could have followed, but chose not to.
Coincidentally, on 6 February 2017 the BBC ran an article entitled ‘Is it easier to get a job if you’re Adam or Mohamed?’ The item explained that Inside Out London sent CVs from two candidates, ‘Adam’ and ‘Mohamed’, in response to 100 job opportunities. Despite listing identical skills and experience, Adam was offered 12 interviews while Mohamed was offered four. There have been similar studies confirming these findings.
In March 2020 the European Job Board ran an article in which it claimed that “according to recent reviews, more than 92 per cent of organisations actively research applicants online, and more than 70 per cent have determined not to appoint a candidate based on what they’ve obtained”.
Add to this the absence of BAME workers in white networks and their lack of influence in the sphere of work, and these actions create layered difficulties for BAME jobseekers with non-European names who are on the online database. To be clear, the database stigmatises everyone on it, but from an employment perspective it significantly amplifies race discrimination by worsening job prospects for an already vulnerable group. To paraphrase Gilead Cooper QC: the power of the state is being used against citizens without any consideration for their liberty – effectively criminalising them.
Take the case of fictitious ‘Femi Kwesi’, with an impeccable work record and CV. He suffers unfair treatment at work, through no fault of his own, and takes his company to court. His chances of securing employment are slim to none once an internet search reveals he is on the online database. His name makes him more conspicuous and identifiable than any one of several ‘Chris Smiths’ who may also have brought a claim against the same company. Moreover, the information stays on the database forever. It cannot be removed. Consequently, Femi Kwesi never finds employment again.
But to the MoJ, his life does not matter. This is the fundamental premise of institutional racism: that black lives do not matter. The courts maintain such infringements of articles 8 and 10 of the Human Rights Act can be justified on the basis of public interest under article 6 of the Act, which promotes ‘open justice’. However, open justice could still be achieved if all cases were anonymised using a referencing system. Moreover, a request for anonymity takes several months to process and needs the consent of both parties and the judge. Is the balance of power equal? Will an employer consent to a request?
Interestingly, the Employment Appeal Tribunal case that sets the precedent here is that of a claimant of African descent with a non-European name, who was accused of “scandalous and vexatious conduct” in court even though not all judges agreed with this view of her conduct. Anonymity was declined and the case remains online.
Once violated in this way, it is difficult for the individual to address the matter themselves because of how tricky it is to prove that the detriment they have suffered (unemployment) is directly linked to the publication of their case; that illegal internet screening (victimisation) has actually taken place; and because the cost of taking the MoJ to court is prohibitive (and the MoJ controls legal aid).
The effect of this very deliberate policy is to completely undermine the work of all diversity advocates in the UK workplace. How? The ultimate deterrent to bad behaviour by an employer is the threat of court action. If this has been effectively removed because of fear of permanent punishment by the court itself, ie victimisation through the online database, what incentive is there for employers to act fairly, and where does this leave employees?
The current silence on this policy needs to end. Heads of diversity, HR heads, CEOs... all need to join forces to bring pressure to bear on the MoJ to follow the European recommendations on open justice.
And this is not just an issue for claimants. An HR professional or line manager who is criticised by the tribunal may pop up in a name search too. Are your employees and managers aware of this online database? Are you willing to consent to anonymity for your employees? Are you willing to help bring about an end to institutional racism?
Karina Bappa-Ampomah is founder and director of Huewn