Solicitor’s discrimination claim over failed judicial application to go ahead

Ghosh: Full hearing later this year

A tribunal has refused to strike out a case against a senior  judge brought by a solicitor who claims discrimination in his failed application to join the High Court bench.

Employment Judge Emma Burns also ordered the Judicial Appointments Commission (JAC), the co-respondent, to hand over anonymised details of the candidates who made it through the sift carried out by Mr Justice Chamberlain and a non-lawyer commissioner.

The claimant is ex-City lawyer Ashok Ghosh, a project finance specialist who works from fee-share firm Excello Law and is a panel chair at the Solicitors Disciplinary Tribunal.

The JAC received 238 applications for its exercise last year 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.

Chamberlain J and the lay member assessed 67 candidates and gave Mr Ghosh a grade C, meaning ‘selectable’ (‘A’ being outstanding, ‘B’ strong and ‘D’ not selectable). He did not progress – 20 other candidates from this group did, and 83 in all, all of whom had higher grades than Mr Ghosh.

Mr Ghosh contends that the lay member would have scored him more favourably but was persuaded by Chamberlain J to lower her scores.

Judge Burns said: “He also believes that his race was obvious from the contents of his application and this is what led [Chamberlain J] to so act. In addition, and/or alternatively he believes that the criteria applied by [the pair] were skewed by them in a way which indirectly discriminated against him on grounds of race.”

Mr Ghosh says these were being a barrister, a silk, a partner in a ‘magic circle’ law firm, having substantial higher court advocacy experience and/or having significant judicial experience, all of which he argues are heavily skewed in favour of White applicants.

The JAC said that, of the 20 who progressed from this group, 14 were White (28% of White candidates), four were Asian (44%), one was Black (25%) and one was from mixed ethnic groups (25%).

At the preliminary hearing, the tribunal rejected an application to strike out the claim against Chamberlain J. Mr Ghosh argues he was acting as an agent of the JAC and as such could be held to be personally liable for discriminatory conduct.

While making no finding on whether there was such conduct here, Judge Burns held that employment tribunals interpreted the Equality Act 2010 “widely enough to capture anyone involved in the overall selection process, thereby ensuring they could be held personally liable for the part they play in a racist outcome”.

She went on: “In the circumstances where racism has taken place at an early stage in a selection process, it would be unfair to hold the final decision maker personally liable.

“They would not have taken race into account when making their appointment. The issue would be that the pool of people they were interviewed had already been manipulated.”

The respondents said the statistics demonstrated that the claimant would not be able to show he was a member of a pool that suffered disadvantage and also put it forward as strong evidence that there was no direct race discrimination.

“The respondents did not argue that the claim should be stuck out against [the JAC] on this basis, although it would seem to me that this argument would apply equally to [its] liability,” the judge observed.

“I am assuming that they did not make this argument because they recognise that it is important that judicial appointment decisions are subject to the scrutiny of employment tribunals where allegations of race discrimination are made.”

Judge Burns decided not to strike out the claim on this basis. Any statistical evidence would need to be “extremely compelling” to justify doing so at a preliminary stage.

Here the sample was small, while Mr Ghosh was concerned that some candidates “may have been better at ‘disguising’ their ethnicity than others and that therefore the statistical outcome does not tell the whole story”.

She said: “There is therefore a need to consider the evidence in detail.”

Judge Burns ruled too that the employment tribunal was a court for the purposes of section 139 of the Constitutional Reform Act 2005, meaning she had the power to order the JAC to disclose confidential information about the other candidates.

She ordered the JAC to disclose the applications and panel member comments for the 20 candidates who made it through the sift, subject to safeguards to protect the confidential information therein.

The JAC must also disclose in relation to all 66 other candidates whether they met any of the criteria Mr Ghosh contends were applied.

The final hearing is listed for seven days from 6 November.

A JAC spokeswoman said: “This was an employment tribunal preliminary hearing concerning an ongoing case where the tribunal ordered limited disclosure on the basis that the confidentiality of other candidates will be protected.

“The JAC and the individual respondent reject the claim made by this applicant and will defend the tribunal claim.”

Mr Ghosh declined to comment.

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