Judge loses race discrimination claim over litigant’s complaint

MoJ: Lessons to be learned

A judge has failed in his claim that he suffered discrimination, harassment and victimisation due to his race over how a complaint by a litigant was dealt with.

The employment tribunal found that although there were some procedural errors and element of unfairness in the way the complaint against Nawal Kumrai was handled, there was no evidence to support the contention that this was due to the fact he was non-white and of BAME origin.

Employment Judge Snelson added that there were lessons to learn from the case for all the parties involved: Mr Kumrai; Hugh Howard, regional tribunal judge for the south-east region of the First-tier Tribunal’s social entitlement chamber (SEC); John Aitken, president of the chamber; and the Ministry of Justice, which runs HM Courts & Tribunal Service.

In April 2015 Mr Kumrai, sitting with a medical member, heard an appeal against a decision of the Department for Work and Pensions to refuse a claim for a particular social security benefit.

The tribunal allowed the appeal but the appellant nonetheless made a complaint about the way in which Mr Kumrai had conducted the hearing, saying he had unnecessarily asked repeated questions about a sensitive medical condition and reduced her to tears.

Her complaint was corroborated by others who had been present, including the medical member.

Mr Howard conducted an investigation and, as a result of his report, Mr Aitken referred the case to the Judicial Conduct Investigations Office with a recommendation that Mr Kumrai be given formal advice.

The complaint was eventually dismissed as being outside of the office’s remit, because it related to a judicial decision and/or case management, but Mr Kumrai was informally advised of the benefits of training on handling difficult situations in court.

In 2016, Mr Kumrai claimed under the Equality Act 2010 that Mr Aitken and Mr Howard had racially discriminated against him, subjected him to race-related harassment and victimised him in the way in which the complaint was handled.

There were various procedural deficiencies in the handling of the complaint, which Mr Howard and Mr Aitken acknowledged and apologised for, Judge Snelson said.

“By contrast, so far as we are aware, Mr Kumrai has never acknowledged even the possibility that his conduct of the hearing on 24 April 2015 might have merited some criticism.”

Judge Snelson ruled that Mr Howard reached “premature” conclusions in a letter to Mr Kumrai, having assembled evidence without giving Mr Kumrai the chance to see and comment on it.

“It did not suggest an open mind on the facts, but only on whether the facts substantiated a case of judicial misconduct.”

Mr Howard also took account of “irrelevant” material from Mr Kumrai’s personnel file, such as alleged difficulties with clerks, which “only served to cast him in a negative light”.

Judge Snelson continued: “Some, which suggested a difficult person resistant to authority or guidance, was arguably of some relevance to possible outcomes, but the report did not state that reliance was placed on it for that purpose only…

“The result was an unfair report that incorporated irrelevant material to Mr Kumrai’s disadvantage.”

The claim was based on alleged subconscious discrimination, but Judge Snelson said: “We are unable to identify anything suggestive of any element of racial bias underlying the behaviour of Mr Howard or Mr Aitken.

“There is nothing pointing to their treatment of Mr Kumrai having been different to the treatment that would have been accorded to any other judge of different race in like circumstances.”

The tribunal observed that Mr Howard was “consistent in seeking to avoid unpleasantness and formality and deal with the case quietly and informally”.

Mr Howard would have made the same errors whoever he was investigating: “To the extent that errors caused prejudice to Mr Kumrai, we are satisfied that they are explained by ignorance and inexperience of the rules.

“The explanation of simple error is, in the circumstances of this case, plausible and, we find, true.”

Other aspects of the claim were rejected for being out of time.

Judge Snelson concluded: “We would not wish to leave this dispute without observing that all parties would do well to learn lessons from it.

“The litigation has no doubt been a chastening experience for Mr Howard and Mr Aitken. We hope that in all future cases they will be especially mindful of the need for scrupulous care to ensure that any investigation is strictly compliant with the rules and with the principles of natural justice.

“We were told that during the long life of this litigation steps have been taken (at least within the SEC) to improve awareness and understanding of the rules. We greatly hope that the startling errors uncovered in this case will not be repeated.”

So far as the Ministry of Justice was concerned, the tribunal said it was “alarming to learn of important legislation bearing on the constitutionally delicate question of judicial misconduct being brought into effect without even the most rudimentary of measures to educate potential decision-makers as to its effect”.

It added: “We sincerely hope that such an elementary mistake will not be made in future.”

Finally, the tribunal urged Mr Kumrai to reflect on his part “in this unhappy story”.

It explained that the case raised “uncomfortable questions (for all concerned, including this tribunal) not only about the scope of judicial misconduct rules and the management of judges by superior judges, but also about how judges engage with those who come before them, many of whom are exceedingly vulnerable and at risk of suffering further damage through the litigation process”.

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