Circuit judge fails in discrimination and harassment claim

Swift: Judge’s factual conclusions were permissible

An employment tribunal was right to strike out a circuit judge’s claims over the way two grievances she raised were handled, a High Court judge has ruled.

Sitting in the Employment Appeal Tribunal, Mr Justice Swift agreed that the complaints of Her Honour Judge Kalyany Kaul KC had little merit.

HHJ Kaul made claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment and disability discrimination

She contended that three judges had failed properly to support her both during and after a trial that had commenced in November 2015 – shortly after her appointment – and then been re-started in January 2016; that one of the judges acted so as to victimise her by reason of previous complaints she had made against court staff; and that actions by court staff had in various way amounted to bullying, harassment and victimisation.

In May 2019, she raised separate grievances against the three judges and three members of staff employed by HM Courts & Tribunals Service (HMCTS).

The judicial grievance was determined in July 2020 by Sir Patrick Elias, a retired Court of Appeal judge, who concluded that the complaints were not made out and that a significant number of them were “totally without foundation”.

The staff grievance was rejected by HMCTS’s chief financial officer in December 2019 as out of time under its policies, a decision upheld on appeal by Susan Acland-Hood, then HMCTS’s chief executive. HHJ Kaul launched her employment tribunal claim in March 2020.

Swift J said the unnamed employment judge’s conclusions that HMCTS had not delayed handling the grievance were all reasonably open to him in a strike-out application.

“This part of the claimant’s case relied only on the assertion that the time taken for particular tasks to be completed amounted to delay. There was no reason why the judge, could not, quite properly, assess that assertion in the way he did.”

On the victimisation claim, the judge concluded there was no reasonable prospect that the claimant would succeed on the ‘reason why’ question.

Swift J said: “That conclusion was reasonably available in the context of this case. To adopt the language of Underhill LJ in Ahir, this is a case where there is ‘an ostensibly innocent sequence of events’ and nothing was relied on to suggest that things were not as they seemed.”

The harassment claim was based on a line in Ms Acland-Hood’s letter, in which she refused to accept that HHJ Kaul was disabled by what were described as “ongoing problems with her mental health”.

The judge said: “I regret that the claimant has not thought better of persisting with it. Self-evidently, declining to accept that her condition amounted to a disability under the 2010 Act was incapable of constituting and act of harassment.

“Equally self-evidently the measured, courteous language in which Miss Acland-Hood expressed herself could not render the innocuous message unlawful owing to the terms in which it was couched. The complaint of harassment is hopeless and must be struck out as having no reasonable prospect of success.”

Swift J said the judge “was undoubtedly right to conclude that this harassment claim was a demonstrably weak claim”.

He concluded that the whole claim “rested on undisputed events… which at face value, were all entirely ordinary matters”.

He went on: “The claimant’s grounds of complaint simply asserted – in terms that can only be described as formulaic – that each event gave rise to a series (in some instances, the same series) of causes of action under the 2010 [Equality] Act.

“The grounds of complaint provided little if anything at all to explain why the events relied on ought not to be accepted at face value.

“Were they to be accepted at face value, the claims based on those events would inevitably fail. In these circumstances, the judge’s factual conclusions were permissible; the submission that in this case the judge’s conclusions were premature and matters ought to have been leftover to a final hearing rests on no matter of true substance.”

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