BORAT 'RACISM' CASE REFLECTS BADLY ON EMPLOYMENT TRIBUNALS

Story of Wakefield welder isn't just about racism or political correctness, it's also about small firms' willingness to employ.

Did you notice in the course of a lively week that an employment tribunal in Leeds has decided that the use of the name "Borat" by a Wakefield-based welder to tease a Polish colleague is racist, and may require the award of compensation for hurt feelings. More to the point, do you care?

You won't find the report in today's Guardian, I'm afraid, we're often a bit jittery about this kind of story. Nor will you be surprised to learn that the Daily Mail has no such inhibitions, though it has refrained from editorial or columnar comment so far. So here is a chance to beat them to it.

I must confess right away that I am conflicted on this one. I disliked the Sasha Baron Cohen's hit film of that name quite a lot and changed channels halfway through it. Like a lot of his work, it struck me as exploitative and inherently condescending to the kind of people who weren't lucky enough to go to Cambridge as he did. It's also a one-trick joke.

Nor was Cohen's own justification for the film – he was roundly criticised and Kazakhstan allegedly threatened to sue him – convincing. He told the Rolling Stone magazine – here's the Telegraph's account – that "the joke is on the racists", because only such people could imagine that his gross parody of Kazakhstan – a place where gays wear blue hats, women live in cages and anti-Semitism is rife – could really exist.

Well, if you say so, Sasha, though there are some pretty nasty countries out there. And I doubt if you'd enjoy the joke if a Cambridge-educated Palestinian pulled off a similar stunt travelling through the more red-neck Israeli settlements on the West Bank – or even north-west London.

But an employment tribunal? Compensation? Oh dear. What are we looking at here? Seriously hurt feelings or the opportunity to make a few bob at the expense of a quite possibly blameless employer? Obviously I don't know Mr A Ruda, the Polish engineer who took his case to the tribunal. His motive could be either of the above – or something else I know nothing about. Some motives are very personal, arising from painful past experience.

The tribunal found that Mr Ruda's claim of widespread and persistent abuse had been "less than honest" in some respects and that the welder – though a bit un-PC – who mocked him four weeks in 2007 had been "forthright and honest", as had other witnesses.

"However, it said he was a victim of both race and sex discrimination and said 'the use of the nickname Borat was an act of racial harassment.

"'The application of the nickname Borat violated the claimant's dignity and created for him a degrading, humiliating and defensive working environment,'" according to the Mail's online account.

The tribunal will decide what (if any) compensation is due in September. You could argue that bad publicity in this and similar cases means that more damage has been done to the system's "soft touch" reputation whatever the outcome. But it's more serious than that. Tribunals can award up to £65,000 for unfair dismissal (average £8,000), whereas the average for disability claims is £27,000 and for racist claims almost £32,000.

That's a lot of money for all but the big boys. No wonder small firms complain that complex regulatory law takes much time and effort to master – and that it is often easier to pay up rather than risk fighting a dodgy claim and losing at greater cost.

All this matters when unemployment is high and we look to small firms to be the chief engine of jobs growth. On 1 October, Labour's Agency Workers Regulation, the extension of full employment rights to temporary and agency workers after 12 weeks on the job, comes into force, delayed but not killed off by the coalition.

Predictably, employers complain, but that doesn't make them wrong. We all favour protection of staff against unscrupulous employers or – more usual – those bad at labour management at HR. We all know some firms lay off temporary staff just before they qualify (he period is currently 12 months, not 12 weeks) – even newspapers do it, would you believe.

And some horrendous cases of sexual discrimination pop up, often from the high-flying loadsamoney City. However some turn out to be opportunistic, as in lesser walks of life where, to my repeated astonishment, tribunals make awards to people who have won them half a dozen times before.

But let's be realistic. Making it harder to get rid of someone who proves disappointing or worse, who is disruptive or whose face doesn't fit, may make employers less likely to risk taking someone on. Is it better to have an insecure job or no job at all? In countries such as France, Spain and Italy, where it is harder to hire or fire people, youth unemployment is even worse than here.

So employment tribunals, established by Labour in 1964, matter in a macro-economic sense and have caused headaches for years as their remit has expanded. Here's a piece from the Economist in 2000 which complains that claims have risen by 75% over the past five years – so Tory as well as Labour years. Steve Byers, then employment secretary, promised action to curb frivolous claims. Things have not improved.

Of course, most claims are settled out of court and most which go to the tribunal do not prosper. Here is a lawyer's website which sets out the issues, and tells potential clients that it wins 80% of cases for employers. Here's a piece which attempts a rational analysis of the stats. Unfair dismissal cases rose 56% in 2009-10 over the previous year, but the figure is misleading, it argues.

Back to Borat. Polish jokes – not a British tradition, we do Irish jokes – are (or were?) common in some cultures. German, US and Canadian cultures come to mind. As with mother-in-law jokes ("How do you know she's coming round? When the mice throw themselves into the traps," said Les Dawson), some are funny – even if we try not to laugh – others not.

My subjective feeling is that Ruda should have shrugged his shoulders and got on with his life – and job – there are worse fates than mockery and banter. Not everyone feels that way. There are people who obsess on issues of race, gender or sexuality, as the online community (great word, community) knows. They magnify any slight, real or imagined. Others barely notice. We're all different.

Some readers occasionally think I'm a bit insensitive ( I know, you find it hard to believe), but even I wondered if the greater prominence given in today's Guardian – and other papers – to the death of Elvis's songwriter, Jerry Leiber, compared with that of Motown's Nick Ashford wasn't some sort of hierarchical slight. But when I read the obits, I concluded it was done on merit. And Cliff Richard being so nice about Ashford must have made up for it. Was I right?

And don't forget it's not always the law but the way it is interpreted by middle managers and local tribunals that often causes the problem. That goes for employment tribunals, human rights laws and much else. Only today a list of Britain's 10 daftest health and safety rulings revealed that Butlins prohibited dodgems from hitting each other, school sack races have ben banned, as has kite flying on the beach.

And who issued this jolly list? Why the much abused Health and Safety Executive itself, though you wouldn't know from reading some of the newspapers.

By: Michael White

Michael White is assistant editor and has been writing for the Guardian for more than 30 years, as a reporter, foreign correspondent and columnist. He was political editor from 1990-2006, having previously been the paper's Washington correspondent (1984-88) and parliamentary sketchwriter (1977-84).