Employment tribunal rejects BSB race discrimination claim

O’Connor: Seeking justice

Claims of race discrimination brought by a barrister against the Bar Standards Board (BSB) as part of a decade-long dispute have been dismissed as time-barred by an employment tribunal.

Employment Judge Broughton found that Portia O’Connor’s claims were presented out of time and it was not just and equitable to extend time. She is to appeal.

We have been chronicling Ms O’Connor’s dispute with the regulator since 2012, when five misconduct findings made against her by a disciplinary tribunal – relating to events in 2010 – were overturned by the Visitors to the Inns of Court.

Ms O’Connor, who is black, claimed compensation from the BSB and it took the Supreme Court in 2017 to decide that her High Court Equality Act claim was not out of time. The case returned to the High Court last year and is ongoing.

Her claims before the employment tribunal concerned the handling of the original complaint – and two complaints that followed it and were dismissed shortly after the Visitors’ ruling – and the fact that details of the original complaint and finding against her were showing up on internet searches, damaging her reputation and future work prospects, despite requests to the BSB to remove them.

Judge Broughton said the barrister argued that these were “at least tainted with race discrimination and that they amounted to conduct extending over a period to this day”. The BSB has also not acceded to her request for an apology.

Ms O’Connor highlighted the impact of online searches on her practice when speaking to us after the Supreme Court ruling.

Under section 123 of the Equality Act 2010, discrimination proceedings must be brought within three months; where conduct has extended over a period of time, time begins to run at the end of that period.

The judge ruled that time started running at the latest from early 2014, after which there was no evidence that Ms O’Connor had made any more requests for the BSB to remove the material from the internet, over four and a half years late.

“The mere fact that the alleged omissions on the part of the [BSB] may have had continuing consequences for the claimant is not enough to suggest that they amounted to conduct extending over a period (my emphasis) under section 123(3)(a).”

She went on to consider if it would be just and equitable to grant an extension of time.

Ms O’Connor gave a number of reasons why she had not pursued her tribunal claims sooner, including her first child being born around the time of the appeal judgment, a subsequent marital breakdown, the appeal in her court proceedings, “trying to manage her workload”, and mental health difficulties.

Judge Broughton said: “Those all went at least some way to explaining the delay. It was also clear, however, that the claimant could have brought these proceedings sooner, given that she was able to pursue her appeal in the court proceedings and represent her clients in other cases, even with a restricted caseload, so it was a matter of priorities.”

She considered there would be “significant prejudice” to the BSB in having to defend these proceedings so long after the events in question.

Further, the prejudice to Ms O’Connor if her claims were held to be time barred was mitigated by the existence of the court proceedings, “which provide both a possible remedy and the opportunity to have her case heard in public”.

Ms O’Connor told Legal Futures that she would seek a reconsideration and also appeal, describing the ruling as “factually inaccurate, factually incomplete and making no mention of the expert evidence or case laws that were relied on”.

She argued that the availability of the information online meant every time someone searched and read it meant there was a continuing act on the part of BSB.

The barrister added that she continued to pursue the case, even after so many years, out of a desire to receive justice, rather than any need for financial compensation.

“The BSB, in wrongly prosecuting me and refusing to amend or remove their publication or publish an apology, has put an even greater hurdle for me as a woman of colour to surmount,” she said.

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