ACE: Race discrimination costs claim 'a matter of integrity'

Arts Council England is seeking costs from award-winning musician Speech Debelle and her legal representatives as "a matter of integrity" and due to the emotional impact her claims of racial discrimination had on staff, an employment tribunal has heard.

Debelle, real name Corynne Elliot, had claimed that a number of separate incidents of microaggressions, harassment and bullying led to work-related stress and anxiety and her eventual resignation from the role in August 2021. But at a hearing in October a judge ruled in ACE's favour, dismissing the claims as "unreasonable".

At a costs hearing on Monday (24 June) ACE's legal representative argued that Elliot and Graceland Solicitors, her legal representatives in the original case, should be made to pay £20,000 each towards the cost of defending the case as there was "no reasonable basis" for the claims being made.

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While it is unusual for employers to be awarded costs against an employee, a tribunal may make a costs order against a party if they are found to have been “vexatious, abusive, disruptive or otherwise unreasonable” in bringing the claim or in the conduct of the claim.

Tara O'Haloran, representing ACE at the hearing, said: "ACE has made [the costs application] as a matter of integrity.

"It's not a case where the claimant has simply failed to prove her case. 

"She has advanced claims that were disingenuous and in circumstances where she did not genuinely believe them to be true and she had no reasonable basis for advancing the claims in the first place.

"These are highly serious allegations for an employer, particularly a public body and particularly [for] managers who are decent and patient in circumstances where they are trying with great tolerance to performance manage an employee quite justifiably."

'Emotional cost'

O'Haloran said that ACE had spent £124,000 defending the allegations, adding that the body had also incurred costs in terms of staff time in responding and investigating allegations, preparing statements and attending hearings. 

"There is also an emotional cost on managers doing their very best to manage an employee," she said. 

"[Elliot] made allegations against different managers suggesting they were somehow motivated by the colour of their skin. Absolute nonsense. That has an emotional impact on managers. 

"Sometimes we like to see the employer as the Goliath in a David versus Goliath situation when in actual fact there are individual people doing their very best at work on the receiving end of these allegations."

Elliot's legal representative for the hearing Gus Baker said that her original legal team had let her down and she was not to blame for the situation.

"I submit that the threshold for 'unreasonableness' has not been crossed, and if it has then the fault is with Graceland [solicitors], and their faults shouldn't be visited on the claimant," he said.

"The claimant said she hadn't been properly advised in writing. Graceland provided no evidence of proper advice in writing.

"What has happened in this case is the claimant has gone to a firm of local solicitors with the genuine belief she had been racially discriminated against and that firm of solicitors failed to give her competent advice about the risks and merits of her claim.

"It is relevant to look at the conduct and the advice given to a claimant when considering whether they have been unreasonable."

'Too heavy a burden'

Baker added that a requirement for solid evidence in order to bring a case of racial discrimination could have significant implications.

"The prohibition on race discrimination [set out] in the Equality Act would be weakened if every time someone wished to advance a race discrimination claim they needed to have evidence of the link between race discrimination and the acts of which they complain," he said.

"To say that the claimant was unreasonable because she started the claim without solid evidence of race discrimination is to put too heavy a burden on her."

Baker also highlighted the findings of a review into inclusion at ACE, published last year, which identified instances of racism, with almost all staff of Black, Asian and ethnically diverse backgrounds "sharing negative experiences at ACE in relation to their race".

"There were people with similar experiences to her which says something about how reasonable it was for her to form views that people were doing things because of race," he said.

Derek Adams, representing Graceland Solicitors, said Elliot had accepted that advice was given to her and wanted to press ahead with the case.

"[Graceland Solicitors] were only doing their duty," he said. 

"Sometimes you get instructions of which you are embarrassed, but you have to do the best you can."

Employment Judge Garry Smart reserved judgement on the case, with a final ruling likely to be made in the coming weeks.