Met Police officer Carol Howard was bullied by her boss on account of her sex and race - so why did she find it so difficult to win her case?

High fees are stopping workers with legitimate grievances from taking employers to a tribunal. Sophie Morris on a disturbing new workplace trend

Sophie Morris
Wednesday 17 June 2015 20:07 BST
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Against all odds: Carol Howard won £37,000 for sex and race discrimination
Against all odds: Carol Howard won £37,000 for sex and race discrimination (Jeremy Selwyn/Evening Standard)

As a black – and female – firearms officer, Carol Howard stood out in the Metropolitan Police's Diplomatic Protection Group (DPG), one of only 12 women in a unit of 700. She had wanted to join the police from a young age and was incredibly proud of her job. But instead of being rewarded for her tenacity in such an environment, she was treated with suspicion, passed over for promotion and subjected to intense scrutiny.

Howard had been singled out for positive attention during the 2012 Olympics, when she was used as a poster girl for security and police diversity. But her boss, Acting Inspector David Kelly, objected to her selection for this role. In fact, Kelly had been putting obstacles in Howard's way since he became her superior in January 2012. When she was ill, he sent police officers to her house to check up on her and asked colleagues to look at her Facebook page. He questioned her commitment to the DPG and blocked her application for a transfer.

After she made a formal complaint, the persecution became worse, perpetrated by this intimidating boss. Many of her former colleagues gave evidence against her when she brought her case to an employment tribunal last year, once it became clear that her complaint was not being taken seriously at work.

Howard, 35, discovered she had won her claim for sex and race discrimination against the Metropolitan Police in July 2014. But she admits that she had little idea how difficult pursuing her case was going to be. The Met set into motion a sophisticated smear campaign against her, which included the release of information leading to newspaper stories describing her as a criminal and a child predator – she had previously been arrested by Sussex Police for possession of an indecent image of a child, which turned out to be a photograph of her daughter in bed.

Howard was awarded £37,000, including aggravated damages for Kelly's "malicious, vindictive and spiteful" behaviour towards her. It was found that he had decided that she was dishonest without any real reasons and that she had been treated in a way designed to "undermine, disrespect and belittle her". The Met's failure to investigate her treatment by Kelly properly or admit to his wrongdoing during the hearing was condemned in the judgment. "I didn't really comprehend what I was going to go through," says the former PC. "The tribunal lasted eight days. On my commute, I had the shakes. It was very scary. Especially when you know you're the victim but are being treated like you're the one in the wrong."

On the very first day of the hearing, it transpired that details of the discrimination had been deleted from the Met's original report into her complaint. Shockingly, the Met later admitted to the existence of a policy to suppress all discrimination grievances. Recommendations were made at the tribunal for a wide-reaching and independent review into how discrimination complaints are handled, and the Equality and Human Rights Commission has since stepped in to conduct its own investigation.

"I can't work for the Met again, but I'm not bitter, and I want to move on," Howard says, after an arduous few years defending herself from false allegations and pursuing her tribunal claims.

Employment tribunals have evolved from the industrial tribunals set up in the 1960s, which were imagined as informal and impartial spaces for employees or union officials to discuss workplace issues with their bosses. The atmosphere was intended to be conciliatory rather than adversary. Workers spoke up for themselves, without the need for costly lawyers.

Today, employees have to pay to take employers to tribunals, and 95 per cent of those who choose to represent themselves lose.

"It is an incredibly difficult system in which to achieve justice," explains Lawrence Davies, an employment lawyer at Equal Justice Solicitors, who advised Howard. "That's why people like Carol Howard, who survive it psychologically and financially, should be even more applauded. She was fortunate – for most discrimination victims there is no access to justice any more. It's a system which sets people up to fail."

"I advise anyone who asks to get independent advice away from the Met, as it's hard to think clearly and weigh up your options," says Howard. "Things aren't going to be the same after you've been to the tribunal. Like whistleblowing, it's very public.

"The settlement was reasonable, but it was never about the money. It was about speaking the truth. They did offer to settle leading up to the tribunal, but you can't accept money when you've been labelled a paedophile.

"My older daughter was my strength all the way through. She kept saying, 'Mum, I am so proud of you. You're opening up the doors to change.' That was the only thing I tried to focus on."

Where 33 per cent of black and minority ethnic people say they have experienced discrimination in a work context, according to an Equality and Human Rights Commission report, only 0.01 per cent ever make a claim about this in the UK.

"It takes tremendous courage and determination to bring a discrimination claim," says Davies. "99.99 per cent are too fearful to formally complain about the discrimination at work to which they are subjected. It does not assist that 99 per cent of grievances are rejected by employers.

"This idea of a compensation culture developing in the UK is a lie. Why are 99.9 per cent of people not exercising their rights? Because of victimisation and cost-benefit analysis. The average award at a tribunal is £12,000."

True detective: the Met tried to smear Carol Howard in the press
True detective: the Met tried to smear Carol Howard in the press (Corbis)

In April, former City banker Svetlana Lokhova, 34, won a much-publicised £3.2m when judges at the Central London Employment Tribunal ruled that she had been the victim of ongoing bullying and sexual harassment at work. The persecution ultimately led her to leave her £750,000-a-year job at the Russian-owned Sberbank CIB and bring her claim against her former employer.

Instead of celebrating her triumph, she has made it clear that the experience is not one she recommends. During the hearing, she was accused of being a drug user and heard how her bosses referred to her as "Crazy Miss Cokehead". She has said that she felt as if she was on trial, and that the questioning was "extremely subjective and personal".

"What a waste of three years of my life, a waste of health, a waste of money," she told BBC Radio 4 after the ruling.

"The person who takes a firm to court invariably has their reputation trashed whether they win or not," an acquaintance who works in finance and has accepted a settlement tells me. "Who would employ someone who has taken an employer to court? It hardly ever makes sense to do it. It's an unfortunate state of affairs that lets employers get away with discrimination."

As stressful as their experiences have been, we might describe Howard and Lokhova as the lucky ones. Changes introduced over the past few years mean that very few people who believe they have been discriminated against or dismissed unfairly can even access the system set up to protect their rights.

In July 2013, fees of up to £1,200 – payable by anyone bringing a claim against their employer – were introduced to reduce overall costs in running the employment tribunal system. Another aim of the fees was to reduce the number of cases reaching court, arguably by removing "unmeritorious" or "vexatious" claims from the bottleneck: if you're trying to pull a fast one on your boss, you'll probably be deterred by a £1,200 bill.

In addition to fees, the extension from one to two years of employment before one can claim unfair dismissal, changes in the procedures of the whole process, as well as caps on payouts, together form a tight scrum against isolated employees.

Last year, a survey conducted by Slater and Gordon, who represented Howard, found that 60 per cent of women felt sidelined at work from the moment they announced a pregnancy. A new website, pregnantthenscrewed.com, claims that 60,000 women each year will lose their jobs as a direct result of pregnancy, a figure that doesn't take into account many other, more subtle, forms of pregnancy or maternity discrimination.

"Employers are becoming more and more ruthless these days, as so much has gone in their favour the last few years," says Danielle Ayres, an employment lawyer with the North-west firm Gorvins Solicitors, who supports pregnantthenscrewed.com and holds free maternity and pregnancy discrimination clinics. "They think the law is on their side."

Ayres points out that there should be ways to protect employers from unfounded claims. "Fees shouldn't remove access to justice, but frivolous and vexatious claims cost time and money and can clog up the system. It isn't fair for employers to have to waste energy, management time and money in defending dubious claims."

A process called "early conciliation" was also introduced to clear out a backlog of cases. It is now mandatory for anyone pursuing an employment issue to first contact the Advisory, Conciliation and Arbitration Service (Acas), who will hear both sides of the story and try and reach an agreement without it going any further.

Last month, the Employment Lawyers Association (ELA) announced in a report that 85 per cent of its members thought that "the introduction of fees had been either detrimental or very detrimental to access to justice". What's more, "fee introduction had dramatically decreased the number of inquiries and the number of instructions" for at least eight in 10 ELA members.

Davies has seen the opposite at Equal Justice Solicitors, where enquiries have gone up. However, he is now seeing worse cases of discrimination, which suggests that employers now feel emboldened to treat staff poorly. "Tribunal culture has moved centre-right and it is no longer seen as employee-friendly," he says.

Unison has launched, and lost, two judicial reviews into the fees structure. Citizens Advice has found that four in five people are deterred by the fees. Meanwhile, a Government review, which critics say will now be buried, found that claims had dropped by 70 per cent between the first financial quarter of 2013-2014 and the third quarter of 2014-2015, a decline from 340,000 to 110,000 claims. Former Business Secretary Vince Cable, who shared the findings with The Independent shortly before the election, described the fees as a "very bad move", singling out low-paid women as the worst affected.

Of all the claims, those involving sex discrimination were down 82 per cent, and equal pay cases down 72 per cent over the same period.

"People on low incomes are being priced out of the justice system," says Gillian Guy, chief executive of Citizens Advice. "With the scales tipped in favour of employers, there is a risk that people will not be able to contest unfair dismissals, wages being withheld or discrimination.

"Citizens Advice research found that just under half of people experiencing problems would have to save for six months to afford tribunal fees of £1,200."

Scarred: banker Svetlana Lokhova won her case, but said: ‘What a waste of three years, a waste of health, a waste of money’ (Rex)
Scarred: banker Svetlana Lokhova won her case, but said: ‘What a waste of three years, a waste of health, a waste of money’ (Rex) (Rex Features)

Kiran Daurka, an employment lawyer at Slater and Gordon, is not surprised by any of these findings. "We've been opposed to fees from the outset. We said they would be a deterrent and prevent access to justice."

The Employment Tribunal's annual report shows that none of the so-called vexatious claims – the time-wasters and axe-grinders – have been weeded out. "It was said fees would reduce the number of unmeritorious claims, but this has not happened," explains Daurka. "The outcomes of claims have not changed at all, which suggests that many claims no longer proceeding to tribunal are claims that would have succeeded."

It is to be expected that unions and lawyers on the side of claimants would protest against fees. When the Chancellor, George Osborne, first floated the idea in 2011, he told the Federation of Small Businesses that critics had "never run a small business, or sat up late worrying about a vexatious claim to an employment tribunal".

The process can be equally stressful for employers, who may feel on trial themselves when presented with allegations they see as unfounded. The idea, however, that all employers are pro-fees is incorrect. A March survey from the Chartered Institute of Personnel and Development (CIPD) found that only two per cent more employers – 38 per cent – were in favour of keeping the fees, compared to the 36 per cent who thought they should be either significantly reduced or abolished.

The majority of people seeking justice are worlds away from Carol Howard and Svetlana Lokhova. Underpayment is a serious problem for low earners. Workers who are refused holiday, redundancy or notice pay, or find unfair deductions from their wages, or who are simply not paid, are required to pay £160 to lodge a claim, then £230 for the fee. Unfair dismissal and discrimination claims cost £250 then £950 for the hearing.

Ayres says that even where clients have insurance, she often finds it very difficult to confirm this insurance is in place before making the claim. This is further complicated by the time limit on making a claim: cases have to be brought to Acas within three months.

"We want people to resolve employment disputes using quicker and simpler alternatives such as arbitration and mediation," explained a Ministry of Justice spokesperson. "Going to court should be a last resort. For those cases which do reach tribunal, we have made sure fee waivers are available for those who can't afford to pay."

For those who do qualify for financial support, that support is reportedly elusive. The ELA found that 97 per cent of those who tried to access support found the application "very difficult".

Some women don't even make it that far. One of them is Serena, 35, who does not want to reveal her full name, who lost her job while pregnant. She wasn't expecting to receive statutory maternity pay from her part-time bookkeeping role, but she had not expected to be dismissed abruptly and to be short-changed on her final payslip.

Serena did approach her former employer via Acas, but they refused to meet her in the middle, and she decided she could not afford to take her claim to the tribunal. "I feel really angry and upset," she says on the phone, while soothing her three-week-old. "If I wasn't having a baby as well as having to find the fees, I'm sure I would have gone to the tribunal."

Joeli Brearley, 36, founder of pregnantthenscrewed.com, is campaigning to extend the three-month limit on making a claim to 12 months. This is "a time when you are exhausted, lacking in confidence and knee-deep in baby poo," she explains. "Making your lunch every day can feel like climbing Mount Everest; masterminding an employment tribunal would feel nigh on impossible."

Brearley, then 33, says she lost a major client – she was a self-employed project manager and creative producer – as soon as she told them she was pregnant. "I felt betrayed and hurt by someone I really trusted. I was also astonished – there was no way they could deny this was blatant pregnancy discrimination. I had proof, and I believed the law would protect me.

"I could have taken them to tribunal, but simultaneously I was told that I was having a high-risk pregnancy and the doctor put me under strict orders not to get stressed. My family pleaded with me to drop the case, it wasn't worth risking the health of the baby for."

A recent post on the site reads: "Hi. I'm an employment law consultant and fully support your campaign. The introduction of tribunal fees has taken workers' employment rights back to the Victorian era and nobody is batting an eyelid at what's going on."

A few cases grab the headlines, but the wider truths about unfair treatment, unpaid wages and sex, race and disability discrimination lie in the stories we don't read, the faces we don't see, and the voices we don't hear, simply because the rules have been changed to keep them quiet. Last week the Government announced, finally, that it would conduct a review into the fees system. The results, to be published later this year, will come too late for tens of thousands of workers.

Fifty years after the introduction of the tribunal as a place for open, calm and conciliatory discussion, employees are now shut out of the conversation, thanks to reforms introduced under the Coalition Government of 2010 – 15.

Parliament opened last month with the promise of support for "working people". They need all the support on offer now that their employment rights have been stripped away. If we exit Europe, and the Equality Act is abolished as a result, it could be open season on all anti-discrimination legislation.

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