Barrister fails in appeal over discrimination claim against chambers

2TGC: Employment tribunal ruling upheld

An employment tribunal (ET) did not show bias in dismissing a claim brought by a black barrister against his chambers, an appeal tribunal has ruled.

Not only were the criticisms made by Daniel Matovu unfounded, said Mr Justice Linden in the Employment Appeal Tribunal (EAT), but also the ET could have “gone further” if it really had been biased against him.

In 2020, the ET rejected Mr Matovu’s race discrimination and victimisation claim against 2 Temple Gardens Chambers (2TGC), which expelled him after a complaint by its senior clerk.

It found that Mr Matovu failed to establish any good reason for feeling aggrieved over a series of disputes with the set between 2013 and 2019.

He appealed on the grounds of procedural unfairness, apparent bias and errors of law/approach.

The EAT noted that, while Mr Matovu “placed emphasis on his description of himself as a ‘litigant in person’”, when it came to asserting what was normal practice in employment tribunal litigation, he relied on being a barrister with more than 35 years’ experience, who specialised in employment and discrimination law.

“We have approached the fair trial issues in this appeal on the basis that Mr Matovu is a very well educated and highly experienced employment tribunal practitioner who evidently has a great deal of confidence in his own abilities.

“We have no doubt at all that he will have encountered race discrimination in the course of his career at the Bar, and we do not discount the pressures that he was under in presenting his own case.

“But his attempts to equate his position with that of the typical black litigant in person who appears in the employment tribunal were unconvincing.”

The EAT said it nonetheless allowed Mr Matovu “to adopt a disparaging and sarcastic tone” in relation to certain employment judges as well as 2TGC’s counsel, “and effectively to make a number of allegations of bad faith because, we felt, he should not be prevented from putting his case in the way that he wished to, even if his allegations of bad faith appeared groundless”.

He also asserted that the ET was against him from the beginning, and that he was subjected to a “court lynching”.

Linden J, sitting with two lay members, said: “Insofar as he was referring to his applications in the first two days of the hearing, the true position is that those applications were rightly rejected on their merits.

“Indeed, his attempts to get the hearing postponed and his application for a different tribunal were hopeless, as he knew or ought to have known… We found nothing in the evidence about what happened at the hearing which was capable of justifying Mr Matovu’s comparison with a lynching.”

The EAT dismissed the barrister’s procedural complaints, such as that the ET guillotined his cross-examination of 2TGC’s principal witness.

“It is clear that the ET was concerned to ensure that the case was concluded in the 10 days allocated, which was a proportionate allocation of time for the case, and was right to timetable the matter particularly given that time was tight.

“Its concerns about time increased as the hearing went on and it based its approach to the timetabling of Mr Matovu’s cross-examination of the respondents’ witnesses on what he himself told them.

“The ET was entitled to expect the parties to assist it in completing the hearing within the allocated time, pursuant to their duty to the court to assist in achieving the overriding objective.”

If Mr Matovu had needed a little more time, “it was incumbent on him to say so”.

The EAT said it was “satisfied that the hearing before the ET was fair” and rejected the contention that the ET’s management of certain procedural matters indicated bias.

Mr Matovu’s various claims of apparent bias were not, individually or cumulatively, such that the fair-minded and informed observer would conclude there was a real possibility of bias.

“Quite apart from these criticisms not being well founded and/or not having the force which Mr Matovu suggested they have, such an observer would also have noted, as we have noted, that there were points at which the ET could have gone further if it were biased against Mr Matovu.

“It did not make findings of bad faith against him; it refrained from making detailed criticisms of his credibility as a witness; it did not make all of the findings against him on disputed issues which it might have made if it had been biased.

“Moreover, its findings were clearly based on its assessment of the case.”

The EAT went on to reject Mr Matovu’s multiple attacks on the ET’s approach to the law and dismissed his appeal.

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