Solicitor criticised as tribunal rejects discrimination claim against JAC

Ghosh: Considering appeal

An employment tribunal has criticised the conduct of a solicitor in bringing a race discrimination claim after not making it through the sift stage for a judicial appointment.

Dismissing the claims of both direct and indirect discrimination, Employment Judge Gibney said the tribunal could not rely on the evidence of Ashok Ghosh, a consultant at Excello Law.

“He had, on occasion, misstated matters so egregiously to amount to lies. On many other occasions, we think his desire to win lead to his honesty and fairness being (in his mind) acceptable casualties of war. He advanced propositions which were simply not true.”

Indeed, the judge said, Mr Ghosh’s assertion that the Judicial Appointments Commission (JAC) panel that sifted his application to become a deputy High Court judge would have determined that he was not white because he had given examples of fighting racism, actually “exposed the claimant’s own racial bias that white people do not fight racism, or do not do so as vigorously as people of colour”.

This was not the only occasion when Mr Ghosh’s “own racial bias undermined his claims”, the judge went on.

He repeatedly referred to Martin Chamberlain – the High Court judge who sifted his application – living in a “white little cloistered world”.

“This was not based on any evidence or fact, but rather the claimant’s own racial assumptions about Mr Chamberlain and what he assumed his background and life in and out of work was like,” the tribunal held.

Mr Ghosh identifies himself as being ‘a person of colour (non-white) of Indian national origin’ and a British citizen, the tribunal said. He is also a panel chair at the Solicitors Disciplinary Tribunal.

The JAC received 238 applications for its exercise in 2022 to recruit 28 deputy High Court judges. The first stage of the selection process was a paper sift, on a name-blind basis, carried out by four panels made up of a judicial and a lay member.

The JAC wanted to narrow the field to around three candidates per vacancy, who would then be invited to a selection day.

Mr Chamberlain (as he was called in the ruling, having referred to himself without his knighthood) and the lay member, Yvette Long, assessed 67 candidates and gave Mr Ghosh a grade C, meaning ‘selectable’ (‘A’ being outstanding, ‘B’ strong and ‘D’ not selectable), and a score.

Despite this, he did not progress – 20 other candidates from this group did, and 83 in all, all of whom had higher scores than Mr Ghosh. The cut-off point was decided by the JAC, not the sifters.

The tribunal found as a fact that Mr Chamberlain “had not established, worked out or guessed at the claimant’s ethnicity or colour at the time he conducted the sift”. Indeed, among the candidates the he and Ms Long sifted, Asian candidates were more successful than white ones.

It rejected Mr Ghosh’s contention that Mr Chamberlain used his own, potentially racist criteria for sifting candidates and then persuaded Ms Long to do the same, finding that they applied the JAC’s published criteria – criteria that Mr Ghosh accepted did not put him at any disadvantage.

“It is not our role to ‘remark’ the claimant competency examples. We do conclude however that there is no evidence that the scores given were anything other than a fair assessment of the claimant’s application, untainted by race, in any way, whatsoever,” the ruling said.

It outlined multiple concerns about the way in which Mr Ghosh put his case, saying that he “elected to present his evidence, both in his witness statement, and during his cross examination, in an unnecessarily rude and on occasions unacceptably offensive way”.

His attacks on Mr Chamberlain – who was also a respondent – were “unnecessarily personal and inappropriate”.

While Mr Ghosh was a litigant in person, he was a solicitor with 38 years’ post-qualification experience who had been assessed as selectable as a deputy High Court judge. “His decision to pursue his claim in such an unnecessarily aggressive way contradicted his status as a senior solicitor and demonstrated poor judgment.”

In his application to the JAC, Mr Ghosh said he had “the same academic background as Lords Sumption and Bingham with first degrees in history and jurisprudence from Oxford University”. This was intended to mislead, the tribunal said; he actually achieved a 2:1, and said on cross-examination that “I did not get a first because I don’t have a white face. I don’t think the class of degree matters”.

He also claimed in his application that “no other lawyer in England, is likely to have had a greater breadth of experience than I had – the breadth of Sir Martin’s experience is limited compared to mine”.

The tribunal noted the “juxtaposition” of Mr Ghosh saying he should have been assessed as ‘strong’ or ‘outstanding’ under the competency of ‘mastering new areas of law quickly’ and also asking it to take his lack of expertise in employment law into account.

It highlighted too how Mr Ghosh had changed position during the case, moving “from asserting that anyone that denied that the claimant was a ‘person of colour’ from his competency examples may as well believe ‘that the moon is made of green cheese’ to the examples creating no more than a ‘slim possibility’ that he was a person of colour”.

In a statement, the JAC welcomed the judgment. “It sends an important message that our processes are fair and rigorous and about the integrity of those involved in JAC selection activity.”

Mr Ghosh said he was taking legal advice on whether to appeal.

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