Mr A Ghosh v Judicial Appointments Commission and Others: 2203773/2022

EMPLOYMENT TRIBUNALS

Case No 2203773/2022

Between

Mr A GhoshClaimant

1. Judicial Appointments Commission 2. Ajay Kakkar 3. Susan Carr 4. Martin Chamberlain 5. Yvette Long 6. Ian ThomsonRespondent

Before

Employment Judge E Burns

Date 11 February 2024

JUDGMENT

The judgment of the Employment Tribunal is as follows:(1) An employment tribunal is a court for the purposes of sub-section 139 of the Constitutional Reform Act 2005 (“CRA 2005”) and can make the order for disclosure it has made in this case.

(2) All the complaints against R2, R3, R5 and R6 are dismissed upon withdrawal by the Claimant. This includes all complaints, to the extent that they were contained in the original (unamended) claim form, made under sections 110 – 112 of the Equality Act 2010 (“EA 2010”).

(3) Any complaints made against R4 under sections 111 – 112 of the EA 2010 contained in the original (unamended) claim form are dismissed upon withdrawal by the Claimant.

(4) The application that the complaints made against R4 should be struck out fails. The complaints against R4 as an individual shall continue. For the avoidance of doubt, the complaints are: (a) R4 directly discriminated against C because of race pursuant to section 13 of the Equality Act 2010 and should be held to be personally liable for doing as he acted as an agent of R1 pursuant to section 110(2); and (b) R4 indirectly discriminated against C because of race pursuant to section 19 of the Equality Act 2010 and should be held to be personally liable for doing as he acted as an agent of R1 pursuant to section 110(2).

REASONS

[1]This preliminary hearing, held in public, concerned a case brought by the Claimant for direct and indirect race discrimination arising out of the recruitment exercise for appointment to the office of deputy judge of the High Court under section 9(4) of the Senior Courts Act 1981. The case is due to be heard at a final hearing starting on 6 November 2023 and taking place over 7 days.

[2]The issues to be considered at the final hearing are recorded in the case management order made by Employment Judge Brown following a case management hearing held on 23 November 2022. The issues are as follows: Direct Discrimination (s.13 EA 2010)2.1 In not being invited to a selection day, was the Claimant treated less favourably than a candidate who did not share his protected characteristic, being a person of colour of Indian national origin, whose circumstances were otherwise materially the same as his, would have been treated?

2.2 If the Claimant has shown facts from which the ET could conclude that the less favourable treatment was because of race, have the Respondents shown that race was no part of the reason they acted as they did?

2.3 The Claimant compares himself with hypothetical white, or white including mixed-race, comparator. Indirect Discrimination Claim (s.19 EA 2010)

2.4 For the purpose of his indirect discrimination claim, the Claimant contends that the selection process disadvantages black and brown candidates, including persons of colour of Indian national origin, and advantages white, including mixed-race, candidates.

2.5 Did the Respondents apply the following PCPs in the relevant selection process: Giving preference to candidates who:2.5.1 Were a barrister;

2.5.2 Were a QC [now known as a KC],

2.5.3 Were a partner in a Magic Circle law firm;

2.5.4 Had substantial experience of advocacy and/or litigation in the higher courts; and/or

2.5.5 Had significant judicial experience.

2.6 If so, did those PCPS put people who shared the Claimant’s characteristics at a substantial disadvantage, compared to people who did not?

2.7 Did they put the Claimant at that disadvantage?

2.8 If so, can the Respondents show that the PCP was a proportionate means of achieving a legitimate aim?

[3]The preliminary hearing was listed at the same time by Employment Judge Brown for the following purposes:(a) What documents relating to the applications of other candidates would be disclosable under standard principles of disclosure;

(b) Whether the ET is a court such that it can authorise disclosure of such documentation under section 139 of the Constitutional Reform Act 2005;

(c) Whether disclosure can be effected lawfully in accordance with the 2005 Act through redaction of any potentially identifying material, even if the ET is not a court

(d) If disclosure is directed, what measures need to be put in place to maintain the confidentiality of other candidates, independent assessors and any others, including whether all or part of the hearing should be heard in private under s10A of the ETA 1996 and Rule 50 of the ET Rules; and

(e) Whether the claims against the individual Respondents should be struck out.

(f) directions for the Final Hearing.

[4]By the time of the preliminary hearing, purpose 3(c) had fallen away. In addition, both parties had made additional applications for specific disclosure of documents that were not included in category 3(a) and so the determination of these applications was added.

[5]There had been discussions between the parties as to whether the hearing should be held in public or not. They were in agreement that the strike out applications needed to be heard in public. In addition, they wanted other matters to be made public because they agreed that they were of significant public interest. I have therefore included my decision as to whether an employment tribunal is a court for the purposes of section 139 of the Constitutional Reform Act 2005 in this judgment, but also appended the case management order I made to this judgment so that it will be in the public domain it is entirety.

[6]I reserved my decision on the strike out application, 3(e) but made decisions on all of the other matters during the course of the hearing. I gave reasons orally during the hearing. At the end of the hearing, the parties indicated that they wanted written reasons for my decision on section 139 (3(b) above) in case they wanted to pursue an appeal, but none of my other decisions.

[7]There was an agreed bundle of 416 pages which included a witness statement from Dr Richard Jarvis, the Chief Executive of R1, in support of the need to take measures to protect the confidentiality of certain individuals. Although not in agreement with the entirety of the statement, the Claimant accepted the need to protect confidentiality and agreed with the measures proposed. He therefore did not wish to cross examine Dr Jarvis.

[8]I thank the Claimant and Counsel for the Respondents for their helpful skeleton arguments and submissions during the course of the hearing.

BACKGROUND

[9]It is necessary to set out some of the background to the case, however in doing so, I note that I heard no evidence (other than in relation to the need for a derogation from the principle of open justice) and therefore make no general findings of fact. I believe the following to be undisputed, except where noted below. If this is not correct, I apologise.

[10]As set above, the case concerns a recruitment exercise for Deputy High Court Judges. The exercise was launched by R1 on 12 January 2022. The exercise was to recruit to 28 vacancies.

[11]R1 is a body corporate established under section 61 of and Schedule 12 to the Constitutional Reform Act 2005 (“the CRA 2005”)). Pursuant to Schedule 12 to the CRA 2005 and the Judicial Appointments Commission Regulations 2013, it consists of 15 Commissioners, including the chairman. The statutory function of R1 is to select persons for recommendation for judicial office, when requested to do so by the Lord Chancellor under s.87 of the CRA 2005.

[12]Each candidate wishing to participate in the exercise was required to submit an application form and details of two independent assessors (referees). The referees were required to complete documents assessing the relevant candidate which were confidential and not to be shared with the candidate. The criteria to be applied were published having been approved by R1’s Board of Commissioners on 14 October 2021.

[13]R1 received 238 applications in total. Three were immediately excluded because they did not meet the eligibility requirements.

[14]The first stage of the selection process was a paper sift, based on the candidates’ applications and their referees’ documents. It was carried out on a name-blind basis, that is the candidates’ names were removed from the papers seen by the sift panels and instead each candidate was identified by a number.

[15]The exercise was carried out by four sift panels, each comprising a judicial and a lay panel member. Successful candidates were then invited to selection days. R1 wanted the sift stage to narrow the field to around three candidates per vacancy.

[16]The sift panels were tasked with scoring each candidate. They were required to giving them scores A - D for(1) Legal and Judicial Skills,

(2) Personal Qualities and

(3) Working Effectively which they then used to give them an overall grade. A candidate who scored “A” overall was an outstanding candidate; “B” was a strong candidate; “C” was a selectable candidate; and “D” was a candidate who was not presently selectable.

[17]The Claimant submitted an application on 14 February 2022. His application, together with the documents completed by his referees were assessed by a panel comprising R4 and R5. R5 was the lay panel member and chaired the panel. R4 is a judge of the Queen’s Bench Division of the High Court. In total they assessed the applications of 67 candidates.

[18]R4 and R5 gave the Claimant the grade C for each of the three relevant criteria and an overall Grade of C. How and why, they reached this decision is at the heart of this dispute. The Claimant’s case is that R5 would have scored him more favourably, but was persuaded by R4 to lower her scores. He also believes that his race was obvious from the contents of his application and this is what led R4 to so act. In addition, and/or alternatively he believes that the criteria applied by R4 and R5 were skewed by them in a way which indirectly discriminated against him on grounds of race.

[19]The consequence of giving the Claimant a grade C was that he did not progress to the next stage of the recruitment process. In total, 83 candidates did progress, all of whom had higher grades that the Claimant. Of the 67 candidates assessed by R4 and R5, twenty progressed.

[20]R1 has subsequently collated the statistics for the race of these 67 candidates as follows:• 14/50 candidates identifying themselves as white scored high enough to progress (28%)

• 4/9 candidates identifying themselves as Asian or Asian British scored high enough to progress (44%)

• 1/4 candidates identifying themselves as black scored high enough to progress (25%)

• 1/4 candidates identifying themselves as from mixed ethnic groups scored high enough to progress (25%) IS THE ET A “COURT” WITHIN SECTION 139 CONSTITUTIONAL REFORM ACT 2005 (CRA 2005)?

[21]The first matter I deal with in this judgment is whether I could order disclosure of the following material held by R1:(a) the application forms submitted by the candidates in the recruitment exercise;

(b) the forms completed by their referees; and

(c) the assessment forms and notes completed by the people responsible for assessing them. I shall refer to this material as the “Candidate Material” for sake of ease of reference.

[22]Before me, it was not disputed that at least some of the candidate material held by R1 would need to be disclosed. In addition, it was not disputed that the Candidate Material was confidential by reason of section 139 of the CRA

[23]Section 139 of the CRA 2005 says:(1) A person who obtains confidential information, or to whom confidential information is provided, under or for the purposes of a relevant provision must not disclose it except with lawful authority.

(2) These are the relevant provisions— (a) sections 26 and 27 and regulations under section 27A; (b) Part 4; (c) regulations and rules under Part 4.

(3) Information is confidential if it relates to an identified or identifiable individual (a “subject”).

(4) Confidential information is disclosed with lawful authority only if and to the extent that any of the following applies— (a) the disclosure is with the consent of each person who is a subject of the information (but this is subject to subsection (5)); (b) the disclosure is for (and is necessary for) the exercise by any person of functions under a relevant provision; (c) the disclosure is for (and is necessary for) the exercise of functions under section 11(3A) of the Supreme Court Act 1981 (c. 54) or a decision whether to exercise them; (d) the disclosure is for (and is necessary for) the exercise of powers to which section 108 applies, or a decision whether to exercise them; (e) the disclosure is required, under rules of court or a court order, for the purposes of legal proceedings of any description.

(5) An opinion or other information given by one identified or identifiable individual (A) about another (B)— (a) is information that relates to both; (b) must not be disclosed to B without A's consent.

(6) This section does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with a relevant provision.

(7) This section does not prevent the disclosure of information which is already, or has previously been, available to the public from other sources.

(8) A contravention of this section in respect of any information is actionable, subject to the defences and other incidents applying to actions for breach of statutory duty.

(9) But it is actionable only at the suit of a person who is a subject of the information.

[24]The Claimant’s Candidate Material had been already disclosed to him because all relevant parties had consented. The parties agreed that in order for R1 to be able to disclose the Candidate Material of any other candidates, without risking any of the individuals involved being in a position to bring proceedings against it, a court order was required pursuant to sub-section 4(e). The question I had to consider was whether the employment tribunal was a court for these purposes.

[25]The parties took me to a number of authorities where an employment tribunal has been held to be a court, but also others where the opposite decision view has been taken. Neither party suggested I was bound by any of those authorities. Both agreed that Bean LJ’s observation at paragraph 23 in Watson v Hemingway Design Ltd & others

[2021] ICR 1034

that: “The authorities indicate that whether a tribunal is to be treated as a court for the purposes of a statute or rule depends on context” was correct.

[26]R1’s concern, that the employment tribunal was not a court for the purposes of this case, stemmed from the comments of HHJ Auerbach in the QBD of the High Court in the case of Acas v Woods

[2020] EWHC 2228

[27]That case, like this one, concerned a legislative provision prohibiting disclosure of information without a court order. The relevant statutory provision in question was section 251B of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act).

[28]Mr Woods had worked for Acas as a conciliator. In 2018 allegations were made about his conduct which led to an investigation and the preparation of an investigation report and ultimately his dismissal. The investigation report contained, amongst other things, allegations that Mr Woods had behaved unprofessionally in connection with certain collective consultations. Because of this, the report contained information captured by section 215B of the 1992 Act and a court order was needed before it could be disclosed.

[29]Before HHJ Auberbach, the parties were in agreement that an order of the High Court was needed to satisfy section 251B. As was sitting as a High Court judge and cod make the order he did not therefore need to decide the point, but nevertheless, as he noted in his judgment, because the issue had been flagged and to some extent explored before him, he decided to address it.

[30]HHJ Auberbach noted that employment tribunals are not superior courts of record and that just because some references to courts in some legislation have been interpreted as including employment tribunals, it does not follow that all references should be so interpreted. He suggested that an important consideration is the language used in the relevant legislation being construed and whether within it separate references to courts and tribunals are made or whether the term courts is used generically.

[31]His view was: “….the 1992 Act contains provisions relating to various judicial bodies, some of which are called courts and some not, including the Employment Tribunal, the Central Arbitration Committee and the Certification Officer. Generally it refers to bodies which are not called courts, by using their respective names. I was referred to section 8(4), by way of example, which refers to "any proceedings before a court, the Employment Appeal Tribunal, the Central Arbitration Committee, ACAS or an employment tribunal". That is within Part I, but there are other examples in other Parts of the Act. Nor can it be assumed that the drafter of the 2013 Act must have overlooked this feature of the 1992 Act, bearing in mind that the Part of the 2013 Act in which section 10 finds itself also contains provisions concerning Employment Tribunals. Given all of that, it seems to me that, had Parliament intended that "court order" in section 251B should embrace an order of the Employment Tribunal, it would have said so expressly, or by way of inclusion of a further definitional provision. It may be thought by some anomalous that an Employment Tribunal cannot order the disclosure of information within scope of section 251B for the purposes of Employment Tribunal proceedings; but one can envisage policy arguments both ways. I cannot say that Parliament cannot have intended this result or that this was plainly an oversight.” (paragraphs 33 and 34).

[32]I consider that HHJ Auberbach’s comments are helpful, and I fully appreciate R1’s concern. I do not consider that HHJ Auberbach is suggesting that in all cases where there a separate reference to an employment tribunal to a court this is conclusive. I interpret his comments as saying that, because there are so many separate references to courts and different judicial bodies in the 1992 Act, he considered a strict interpretation should be applied notwithstanding the anomalous result. I also think he was saying, in addition, that ultimately, he could not be sure this was correct and, in any event, because he could make the relevant order, he did not need to decide the point.

[33]I did need to decide the point. And my decision was that the employment tribunal is a court for the purposes of section 139 CRA 2005. My reasons are as follows.

[34]First, I was taken to one reference in the CRA 2005 where courts and tribunals are referred to separately. That reference is in section 3. Section 3 is the section which deals with guaranteed judicial independence. When enacted in 2005, sub-section 3(7) said that the judiciary included(a) the judiciary of the Supreme Court

(b) any other court established under the law of any part of the United Kingdom and

[35]The section was subsequently amended by virtue of the enactment of the Tribunals, Courts and Enforcement Act 2007. This was the legislation which introduced the concept of Employment Judges as opposed to Tribunal Chairman. The 2007 Act added a new sub-section 3(7A) to ensure that Employment Judges along with a range of other tribunal roles also benefited from guaranteed judicial independence.

[36]Before, the Respondents argued that if the employment tribunal was a court, the amendment to section 3 of the CRA 2005 would not have been required. I agree this is correct, but I do not consider that the creation of this single separate reference to tribunals means I have to decide that the reference to a court in section 139 excludes an employment tribunal.

[37]I take this view, in part, because the reference is singular and only occurs once. In addition, I consider it is relevant that this one single reference was introduced as an amendment via a piece of legislation that was intended to enhance the powers of a range of different tribunals. When that context is taken into account, I consider it is entirely plausible, to use HHJ Auberach’s word, that there was a drafting oversight. In my judgment, the likelihood is that when the new subsection 3A was introduced, the relevant statutory draftsperson failed to appreciate that a consequence would be that a further consequential amendment to section 139 would be helpful to clarify how the word court was used in that section.

[38]More significantly, however, I consider the anomaly that a limited interpretation of the word court in section 139 would create is too much of an anomaly in this case.

[39]One of the obvious claims that might arise out of a judicial appointments process is a claim of discrimination under the EA 2010. The EA 2010 is specifically drafted to enable applicants for positions of public office to challenge discrimination in the appointment process. The relevant provisions are found in sections 50 and 51. The judicial body which is identified in the EA 2010 as the appropriate one to hear and decide such claims is the employment tribunal. If parliament had wanted it any other way, it could have assigned a different court to have this function, as it has for other types claim under the Equality Act 2010. Given that we are the judicial body that has the power to determine these sensitive cases, it would be hugely anomalous to find that we cannot order disclosure of key relevant material.

[40]Although a similarly anomalous situation was thought to have arisen in the Woods case, I consider it can be distinguished. What is protected by section 251B of the 1992 Act is not information that one would normally envisage being relevant to employment tribunal proceedings. In fact, quite the opposite is true. The normal expectation is that information held by Acas would not ordinarily form part of our proceedings because of the nature of the undertaken by Acas. Material held by Acas would therefore would only ever need to be ordered to be produced in an employment tribunal in exceptional circumstances which would justify the need to seek permission from a higher court. In contrast, a claim for discrimination in a judicial appointments process is invariably going to involve some examination of material relating to candidates. To force the parties to have to apply to a higher court, and possible pay a fee to do so, in every case is a very unattractive option.

[41]I therefore decided that I could order disclosure of the Candidate Material and did so. The orders I made are contained in the appended case management order. SHOULD THE CLAIMS AGAINST R4 BE STRUCK OUT?

Introduction

[42]The Claimant’s original claim was against 5 individuals in addition to R1. The Respondents applied to strike out all of claims against the individuals under rule 37(1)(a) on the basis that the claims had no reasonable prospects of success.

[43]The starting point was that the language of section 51 EA 2010 does not enable claims to be brought against individuals and, with the exception of R6, the Claimant had made no reference to any of the ancillary provisions found in sections 110 – 112 in his original claim.

[44]The Claimant’s primary connection was that this interpretation of his original claim was not correct and that it was implicit in his claim form that he intended to rely on the ancillary provisions when he named the individual respondents. However, in order to protect his position, to the extent that he was required to do so, he applied, in writing, during the hearing to amend his claim to make this clear. In that amendment application he sought to pursue complaints against R2, R3, R4 and R5 in reliance on sections 110, 111 and 112 of the Equality Act 2010.

[45]As the hearing developed the Claimant changed his position and decided to withdraw all complaints against all individual respondents, including R6, with the exception of the complaints pursued under section 110 against R4. I have therefore dismissed all such complaints on withdrawal, and taken the precaution of making it clear that this extends to complaints under section 110, 111 and 112 to the extent that they were contained in the original claim form. This is because I did not have to decide whether they were or not.

[46]The only individual respondent that remained was R4. The Claimant said he believes that R4 should be held personally liable for directly and indirectly discriminating against him because of his race. The Claimant wishes to pursue his complaints against R4 relying on section 100. His argument was that R4 was acting as an agent of R1 and as such can be held to be personally liable for his discriminatory conduct in addition to R1.

[47]The position argued before me, on behalf of R1 and R4 (together the Respondents for the purposes of this section of my judgment), was that the claim against R4 should not be allowed to proceed, in any event, for several reasons. I summarise them below.

[48]The first argument was the Claimant did not say in his original claim form that he was asserting liability should be attributed to R4 by virtue of his status as an agent of R1. Instead, the complaints of direct and indirect race discrimination against R4 as pleaded are expressed to be complaints under section 51 EA 2010. The complaints should therefore be struck out as having no prospects of success because section 51(4) EA 2010 operates such that complaints can only be pursued under section 51 against R1.

[49]The Respondents also argue that I should not allow the Claimant to amend his claim to clarify that the complaints are brought against R4 as an agent of R1 because the complaints in their amended form are still not particularised adequately in relation to the relationship of agency, there are legal problems with them that mean they cannot succeed and in any event, there would be little or no prejudice to the Claimant, when compared to the prejudice to the Respondents, in not allowing the amendment because he will still be able to pursue his complaints against R1

[50]Alternatively, the Respondents argue that if I am not with them in relation to the interpretation of the pleadings, I should nevertheless strike the complaints out against R4 because of the lack of particularisation, two legal problems and because the statistics show they are bound to fail.

[51]I will address the two legal problems in more detail below. I shall refer to the arguments as the ‘section 51(1) argument’ and the ‘Murray argument’, so named after the decision of Lady Stacey sitting in the Scottish EAT case of Murray v Maclay Murray Spens LLP (2018] IRLR 710.

[52]Before retiring to consider my decision, I also discussed the possibility of making deposit orders as an alternative to the possibility of strike outs. I explained how these worked to the Claimant and gave him some time to research them. He was reluctant to provide details of his financial position, but informed me that he was able to pay the maximum deposits that might be engaged in relation to the two complaints against R4 if required. Relevant Background Law

[53]In this section I set out summaries of the general law relating to interpreting pleadings, amendments, strike out and deposit orders that I had in mind when making my decisions. I have not included any background law relevant to the ‘section 51 argument’ and the ‘Murray argument’ as this is explained in the analysis and conclusions section. Interpreting Pleadings

[54]Two important principles of tribunal litigation are:(a) A tribunal does not have jurisdiction to determine claims that are not contained in the facts set out in the claim form.

(b) A respondent needs to know the case that they need to meet.

[55]There are a number of authorities which deal with the importance of the not straying from the pleaded case as contained in the claim form.

[56]Relevant authorities include Mr Justice Langstaff (then president of the EAT) in Chandhok v Tirkey

[2015] ICR 527

, EAT and Chapman v Simon

[1994] IRLR 124

and Ahuja v Inghams

[2002] EWCA Civ 1292

) and Tough v Commissioners for HM Revenue and Customs

UKEAT/0255/19

[57]Langstaff P observed in the Chandhok case, at paragraph 17 that: “…..the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits…..”

[58]He adds at paragraph 18: ‘In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; ….. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.’ (bold emphasis added)

[59]Mrs Justice Elizabeth Laing in Adebowale stated at paragraph 16: “In my judgment the construction of an ET1 is influenced by two factors: the readers for whom the ET1 is produced, and whether the drafter is legally qualified or not. The ET1, whether it is drafted by a legal representative, or by a lay person, must be readily understood, at its first reading, by the other party to the proceedings (who may or may not be legally represented), and by the EJ. The EJ is, of course, an expert, but (as this litigation shows) should not be burdened by, or expected by the parties to engage in, a disproportionately complex exercise of interpretation. The EJ has the difficult job of managing a case like this, and the EJ’s task will not be made any easier if this Tribunal imposes unrealistic standards of interpretation on him or on her.”

[60]Our system of justice does, of course, include a process whereby the information contained in the claim form and response can be developed. Requests for further information are a regular feature of employment tribunal litigation and an order for further information was made in this case. Such further information is intended to elucidate further detail of the claims in the claim form.

[61]The basic principles that apply when ordering further information have been summarised by Wood J in Byrne v Financial Times Ltd

[1991] IRLR 417

at 419: (EAT) as follows: ''General principles affecting the ordering of further and better particulars include that the parties should not be taken by surprise at the last minute; that particulars should only be ordered when necessary in order to do justice in the case or to prevent adjournment; that the order should not be oppressive; that particulars are for the purpose of identifying the issues, not for the production of the evidence; and that complicated pleadings battles should not be encouraged.”(again bold emphasis added)

[62]In Secretary of State for Work and Pensions (Jobcentre Plus) v Constable

[2010] All ER 190

, further information was ordered in a case where the claim was of automatically unfair dismissal for having made a protected disclosure. The EAT expressed the view that the Respondent was entitled to know what the Claimant claimed the disclosure was, when, how and to whom it had been made, and how it was alleged to have led to the dismissal. It ordered particulars to that effect to be provided. The Claimant did not have to amend the claim form in order to add this information into his claim. Amendments

[63]Where an amendment is required, the leading case is Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore

[1996] IRLR 661

, in which it was held that when considering an amendment, the following are relevant factors:• The nature of amendment

• The applicability of time limits

• The timing and manner of the application

[64]However, as confirmed in the case of Vaughan v Modality Partnership

[2021] ICR 535

, EAT, having considered the relevant factors, which are not limited to those identified in the Selkent case, we must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it and make our decision accordingly. As noted by HHJ Tayler giving the judgment in that case, this requires consideration of:“the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding.” (paragraph 21). He further notes: “Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need.” (emphasis added, paragraph 22)

[65]In Galilee v Commissioner of Police of the Metropolis

[2018] ICR 634

, it was confirmed that I am able to allow an application to amend subject to the time limits issue being resolved at the final hearing, alebit that I am not obliged to do this, however.

[66]Another factor that can be considered is the merits of a claim. Where there is a factual dispute between the parties, a tribunal taking the merits into account must guard itself against the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored. Strike Outs and Deposit Orders

[67]The Tribunal’s power to strike out claims and responses is found in Rule 37(1) of the Tribunal Rules. The relevant parts of Rule 37(1) for the purpose of this hearing say the following: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— that it is scandalous or vexatious or has no reasonable prospect of success. (emphasis added).

[68]The overriding objective in Rule 2 of the Tribunal Rules is also relevant at all times when considering applications of this nature. It says: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.

[69]A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

[70]The courts have repeatedly warned of the dangers of striking out discrimination claims on the grounds that they lack prospects of success, particularly where “the central facts are in dispute” e.g. in Anyanwu v. South Bank Student Union

[2001] ICR 391

at [24] and [37] and Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

at [29].

[71]However, while exercise of the power to strike out should be sparing and cautious, there is no blanket ban on such practice. 6. The question of striking out discrimination claims was considered by the Court of Appeal in Ahir v. British Airways Plc

[2017] EWCA Civ 1392

, where Underhill LJ stated at [16]: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment.”

[72]Rule 39 of the Tribunal Rules says: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”

[73]The purpose of a deposit order is to identify at an early stage claims with little prospect of success so as to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if the claim failed. Their purpose is not to make it difficult to access justice or to effect a strikeout by another route (Hemdan v Ishmail and anor

2017 ICR 486

, EAT).

[74]Similar considerations apply to those required as in a strike out application under rule 37(1)(a) where a claim is said to have no prospects of success.

[75]When determining whether to make a deposit order, I am not restricted to a consideration of purely legal issues. I am entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward (Van Rensburg v Royal Borough of Kingstonupon-Thames

UKEAT/0095/07

[76]The same caution should be exercised in discrimination claims where there are disputed facts as when considering applications for a strike out under rule 37 (Sharma v New College Nottingham EAT 0287/11 applying Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL). The test of ‘little prospect of success’ under rule 39 is however plainly not as rigorous as the test of ‘no reasonable prospect’ under rule 37 and the consequences of a deposit order are not as severe as a strike out order. It therefore follows that a tribunal has a greater leeway when considering whether to order a deposit.

[77]An order should be for payment of an amount that the paying party is capable of paying within the period set (Hemdan v Ishmail

[2017] IRLR 228

, EAT) taking into account his or her net income and any savings. The employment tribunal must give its reasons for setting the deposit at a particular amount (Adams v Kingdom Services Group Ltd

UKEAT/0235/18

). Analysis and Conclusions Is an Amendment Necessary?

[78]The first question I considered was whether the claim required amendment or not, or whether it should be read as implicitly including a reference to section 110 EQ 2010. I have concluded that it should be and that no amendment is required for the Claimant to be able to pursue the complaints against R4 as an agent of R1.

[79]I reached this conclusion as a result of considering the general practice of employment tribunals when dealing with complaints that are brought against both a corporate employer (the main respondent) under section 39 or 40 of the Equality Act 2010 and against individuals who are employees or agents of that main respondent. In my experience, we do not insist that claimants cannot pursue such claims unless they have made it expressly clear that the mechanism by which they are seeking to establish individual liability is via section 110. Instead, presumably because this is understood to be the default mechanism for establishing individual liability, we allow claims to go forward where they do not state this expressly.

[80]The position is different where individual liability is argued to arise under sections 111 and 112. I would always expect a claimant to plead such a compliant with precision because otherwise, the default of section 110 is assumed to apply.

[81]I do not consider the position is or should be any different for claims pursued against a main respondent under section 51 EA 2010 and individuals who may be employees or agents of that main respondent.

[82]In both cases, whether there is a complaint under section 39 EA 2010 and a complaint under 51 EA 2010, it is always going to be helpful if the claimant states whether or not he is asserting that the proposed individual respondent is an employee or agent of the main respondent, and provides some detail of the basis of such an assertion. However, this kind of detail is not a necessary piece of information that needs to be included in the claim form in order to have a valid claim. It can legitimately be provided by way of further and better particulars at a subsequent date.

[83]In my judgment that is what has happened here. The Claimant has intended to rely on section 110 and the argument that R4 has acted as an agent of R1 from the start and that should be treated as implied by his pleadings by default.

[84]With regard to the lack of any details as to how R4 can be an agent of R1, I agree that the claim form does not explain this. The Claimant has now explained his position on this however. He says that if R4 was not an employee of R1, he must have been an agent of R1. Although not a sophisticated argument, given that the law on agency under the Equality Act 2010, is not settled, and to my knowledge this particular question has not been considered previously, it appears to me to be a legitimate argument for him to make such that I cannot say it has no or even weak prospects of success.

[85]If the Respondents feel they need more details from the Claimant to understand his argument, they can make a request for further information. Strike out Application

[86]Having decided that the original claim without amendment included a claim against R4 as an agent of R1 relying on section 110, I then considered the strike out application. There were essentially three grounds as explained earlier:• The section 51(1) argument

• The Murray argument

• The statistics argument The Section 51 Argument

[87]The Respondents argued the agency argument cannot work in this particular case because of the types of conduct which are prohibited by subsection 51(1) EA 2010. In relation to this argument, it is helpful to set out sub-section section 51(1) in full, but also sub-sections 39(1), 1091(1) and (2) and 110 (1).

[88]Sub-section 51(1) EA 2010 is the section under which a claim of discrimination can be pursued against R1 by a candidate in one of its recruitment exercises. It says: A person(a) (A) who has the power to make a recommendation for or give approval to an appointment to a public office …. must not discriminate against a person (B)— (a) in the arrangements A makes for deciding who to recommend for appointment or to whose appointment to give approval;

(b) by not recommending B for appointment to the office;

(d) by not giving approval to the appointment of B to the office.”

[89]Section 39(1) EA 2010 is the equivalent provision when an applicant for employment wishes to pursue a discrimination and is useful for comparison purposes. It says: An employer(a) (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment;

(b) as to the terms on which A offers B employment;

[90]Sub-sections 109(2) and 110(1) EA 2010 provide the mechanism for employees and agents to be individually liable for discrimination. Subsection 110(1) says: A person(a) (A) contravenes this section if- (a) A is an employee or agent,

(b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and

(c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

[91]Sub-sections 109(1) and

(2) EA 2010 say: (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

[92]The Respondents argue, correctly in my judgment, that in this case, only the conduct prohibited by sections 51(1)(a) and (b) are relevant. They say subsection 51(1)(a) addresses the process adopted by R1 when undertaking a judicial recruitment exercise and sub-section 51(1)(b) concerns R1’s decision whether or not to recommend someone for appointment. I understand that the Claimant relies on 51(1)(b) against R4 as he says R4’s conduct led to the decision.

[93]The Respondents say that R4 cannot be held individually liable for the decision not to recommend someone for appointment, even if he is an agent of R1, because R4 was not responsible for the recommendation decision. The Respondents argue that all R4 did was to assess a selection of candidates and grade them A to D. He was not even responsible for deciding how many candidates he assessed would go through to the next stage.

[94]The Respondents argue that there can therefore be no individual liability of R4. This is because in order to have individual liability, the third limb in section 110(1)(c) has to be satisfied such that, the doing of the thing that R4 did, must amount to a contravention of the Equality Act 2010 by the principal. The thing R4 did was to assess the candidates, but the alleged contravention was the decision not to recommend the Claimant for appointment which is something peculiar to R1 and for which only R1 can ever be responsible.

[95]This argument is compelling when a narrow interpretation is taken of section 51(1) (c). I have decided not to strike the claim out.

[96]My reasoning is because such a narrow interpretation appears to me to create a lacuna in the coverage of the Equality Act 2010. Imagine if unknown to R1, it engages someone to do assessments for it who has a particular view about a particular race and who deliberately sets out to ensure candidates of that particular race do not progress. We would rightly think this to be a heinous thing and instinctively feel as if it ought to be something for which that person should be able to be held personally liable under the Equality Act 2010. Although a narrow interpretation of section 51(c) appears to prevent this, at least via section 110, giving a wider interpretation to section 51(1)(c) could enable this.

[97]I have considered the analogous situation in an employment context when sub-section 39(1)(c) applies and the assessor is either employed by or acting as an agent of the employer. We do not, so far as I am aware, give a narrow interpretation to sub-section 39(1)(c) so as to mean that the only person who can be held personally liable for racism in a recruitment process is the final decision maker.

[98]Instead, I consider that employment tribunals interpret section 39(1)(c) 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. 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.

[99]When I asked the Respondents if I they thought this analysis was wrong, they did not disagree with me and more significantly were not able to point me to any case law where section 31(1)(c) had been so narrowly interpreted. Instead, they sought to argue the position is different under section 51, but I do not consider there is any obvious reason why it should be.

[100]My conclusion, therefore, is that the complaints against R4 ought to be allowed to proceed to the final hearing as it is not obvious, at this stage, that they will fail. The final interpretation given to sub-section 51(1) (c) will be for the final tribunal panel. I add that I did not consider the Claimant’s position, on this argument, to be sufficient weak to justify a deposit order. Murray Argument

[101]The second argument for the strike out was directed at the indirect discrimination complaint. Relying on the Murray case. The Respondents argued that the claim against R4 should be struck out because of the Claimant’s argument that the PCPs applied were those of R1 and not simply the sifting panel that assessed his claim. The Respondents said that any PCP applied more widely than by the particular sift panel alone would “by definition be that of the JAC and not that of any individual and so applying Murray, there could no potential for individual liability.

[102]During the course of the hearing, the Claimant clarified that he was effectively arguing the position in the alternative. His primary argument was that the PCPs he has identified and that are contained in the list of issues were of widespread application in the alternative, However, in the alternative, he would wish to argue that R4 applied the skewed PCPs as an individual.

[103]In light of this, I decided not to strike out the indirect discrimination case against R4 and also not to make a deposit order. How R4 made his assessments will be a matter of evidence. Statistics Argument

[104]The third ground on which the strike out application was sought was on the basis of the substantive merits of the claim based on the statistical outcome of the sift panel’s work. They argue that the statistics show that non-white candidates did better that white candidates, with Asian candidates doing best of all. They argue this demonstrates that the Claimant will not be able to show that 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 by either member of the sift panel.

[105]I have decided not to strike the claim out against R4 on this basis.

[106]The Respondents did not argue that the claim should be stuck out against R1 on this basis, although it would seem to me that this argument would apply equally to R1’s liability. 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.

[107]Against that backdrop, any statistical evidence would need to be extremely compelling to justify a strike out at a preliminary stage. In this case, the sample that has been used is small, because of the small number of people considered by the sift panel and that has to be considered when taking them into account.

[108]In addition, we know that the panel also operated on a name-blind basis. The Claimant’s concern about this is 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. There is therefore a need to consider the evdience in detail. Amendment

[109]Finally, although not necessary for me to decide based on my interpretation of the original claim form, I have considered in the alternative whether I would have allowed the amendment. I confirm that I would have done so because in my judgment the balance of the injustice and hardship falls in favour of allowing the amendment.

[110]I took a number of factors into account when weighing the question.

[111]Despite considering himself to be an exceptional candidate for the post of deputy high judge, the Claimant’s experience is as a non-contentious solicitor. He has limited experience of litigation and none of employment tribunal processes. He argued, and I accept, that his lack of experience and objectivity in this case may have led to his failure with regard to the original claim form.

[112]The application to amend has been made early enough in the overall proceedings so as not to cause significant delay. Ultimately it will not prevent the case from being able to progress to the already listed final hearing. The Respondents may want the opportunity to present a further Amended Response, to deal with the new arguments, but this can be easily addressed in the time frame available.

[113]Including consideration of the individual complaints against R4 under section 110 will also not add much to the final hearing. It has always been envisaged that R4 will need to be present at the hearing to give evidence and the scope of that evidence does not change hugely. The only additional evidence required will be in relation to the status of his relationship with R1 and whether this amounts to a relationship of agency and principal. I anticipate that this question is more likely to be covered in legal submissions rather than lengthy evidence and can easily be fitted into the hearing slot, particularly as the claims against the other individual respondents have been withdrawn.

[114]I do not consider the nature of the amendment application engages the time limit provisions. Even it does, my decision would have been to that such time points can be determined at the final hearing. Bearing in mind that the just and equitable test would apply, I do not consider time be a reason for not allowing the amendment.

[115]The prejudice to R4 is that he will be a respondent to the claim rather than a witness and that will inevitably mean that it will take up more of his time. However, given that his actions will be under scrutiny either way, I do not consider this to be significant enough a reason not to allow the amendment.

[116]The Respondents point out that the Claimant will not be prejudiced by not being able to pursue his claim against R4 because he has his claim against R1. This is the case in the vast majority of claims where Claimants bring claims against individuals as well as their employers or prospective employers. As long as it is potentially legally correct that personal liability can attach to R4 as an individual, the Claimant ought to be pursue a claim against him. Given my views on the arguments put forward by the Respondent, I do not consider them to justify not allowing the amendment to proceed. Employment Judge E Burns 23 May 2023 24/05/2023 For the Tribunals Office APPENDIX EMPLOYMENT TRIBUNALS Claimant: Mr A Ghosh Respondents: 1. Judicial Appointments Commission (R1) 2. Ajay Kakkar (R2) 3. Susan Carr 4. Martin Chamberlain 5. Yvette Long 6. Ian Thomson Heard at: London Central (in person) On: 3 and 4 May 2023 Before: Employment Judge E Burns Representation For the Claimant: Represented himself For the Respondents: Benjamin Cooper, KC Robert Moretto, Counsel RECORD OF A CASE MANAGEMENT HEARING This document is in two parts. You must read it all as it contains important information. PART 1: CASE MANAGEMENT ORDERS The following orders were made pursuant to the Employment Tribunal Rules. Please note that the Tribunal has various powers to deal with non- compliance with orders including:(a) striking out the claim or the response;

(b) barring or restricting participation in the proceedings;

(d) awarding costs in accordance with the Employment Tribunal Rules. Final hearing (2) The final hearing in this case will begin on 6 November 2023 as envisaged in the case management order made on 23 November 2022. Documents (other than Candidate Material) (3) By 25 May 2023, the First Respondent is ordered by consent to ask Ms Cooper if she can identify the grades that are scribbled out on the document on page 349 of the preliminary hearing bundle, either by reading her writing or through recollection, and confirm her answer in writing to the Claimant. (4) By 25 May 2023, the First Respondent is ordered by consent to provide the Claimant with a copy of the evaluation referred to at point 6.2 in the minutes of the Board meeting of the First Respondent dated 14 October 2021 (page 256 of the preliminary hearing bundle), (5) In addition to the above, it is noted that by 25 May 2023 the First Respondent will provide an unredacted version of material on page 343 of the preliminary hearing bundle to the Claimant on a voluntarily basis. (6) By 25 May 2023, the Claimant is to provide the Respondent with any contract between his personal service company and Excello Law, his invoices for work undertaken in the last three years and evidence of payments made by Excello to him in satisfaction of such invoices. The latter can be in the form of bank statements showing payments. Disclosure of Candidate Material to the Claimant and Orders to Protect Confidentiality (7) Subject to the orders below, by 1 July 2023 the First Respondent is ordered by consent to disclose the following to the Claimant: (i) the application forms (ii) the forms completed by the candidate’s independent assessors (iii) the forms completed by the relevant sift panel members, namely Ms Cooper and Chamberlain J and any notes they may have made in respect of the 20 candidates who were assessed by the sift panel made up of Ms Cooper and Mr Justice Chamberlain (the “Candidate Material”) (8) By 1 July 2023 in relation to the 66 candidates who were assessed by the sift panel made up of Ms Cooper and Chamberlain J, the First Respondent is ordered by consent to provide the following information on an anonymised basis, providing it is possible to ascertain it from their application forms and /or referee forms: (i) whether the candidate was a barrister or solicitor; (ii) whether the candidate was a QC at the time of their application; (iii) whether the candidate was a partner in a magic circle law firm; (iv) whether the candidate had previous judicial experience and what this was; (v) in the case of any solicitors, whether their application reveals experience of advocacy. (9) The following orders are made in accordance with s.10A of the Employment Tribunals Act 1996 and Rule 50 of the Employment Tribunal Rules in respect of the Candidate Material: (i) The First Respondent is ordered to redact: (i) all names; (ii) any other information from which any person (natural or legal) could be identified by the Claimant, and (iii) any other information from which any litigation, proceedings or matter upon which advice has been given, could be identified by the Claimant. (ii) only one copy of the documents redacted in the manner described above are to be provided to the Claimant by the First Respondent, in hard copy form. (iii) The documents are not to be included in any electronic bundle or transmitted by email to or by the Claimant. (iv) The Claimant is ordered to keep the documents securely locked when not being used for these proceedings or transported to and from the ET. The Claimant is to provide the First Respondent with details as to how they will be secured by 25 May 2023. (v) The Claimant is not to copy the documents. (vi) Within 28 days of the conclusion of these proceedings, the Claimant is ordered to return the documents to the First Respondent. For these purposes the conclusion of these proceedings means the date on which the deadline for any appeal against the judgment of the ET on liability expires or, in the event of any appeal(s), the date on which all such appeal(s) and/or further appeal(s) are finally determined and any deadline for any further appeal (if any) expires. (vii) The Claimant may only use the documents for the purpose of these proceedings in which they have been disclosed. That is, he must not read or show or disclose them, or any of the information contained within them, to any other person except as required by law or with the permission of the ET or court (as set out in IG Index Ltd v Cloete

[2015] ICR 254

, Christopher Clarke LJ, at para 40). (10) Subject always to any orders made by the Judge or Tribunal Panel with conduct of the relevant hearing, the following orders are made in accordance with s.10A of the Employment Tribunals Act 1996 and Rule 50 of the Employment Tribunal Rules in respect of the Candidate Material: (i) Any part of a hearing during which the Candidate Material is considered and/or evidence is given about it, be heard in private. (ii) The Candidate Material and the evidence given about it should be contained in a “closed” bundle, which should be prepared in hard copy only and which should not be made available to the public. (iii) No person may publish or cause to be published the identity of any candidate or independent assessor or other person referred to in any of the Candidate Material (other than as contained in a public part of the ET judgment or reasons). (iv) To the extent possible, the Candidate Material should not be referred to in any ET judgment or reasons. Alternatively, it should only be referred to in a way which does not make those who are referred to identifiable, or to the extent that it is not possible, that any such matters should be included in a confidential annex that is not made public. Final Hearing Bundles (11) By 8 September 2023, the parties must agree which documents are going to be used at the final hearing, including which documents shall be contained in the closed bundle. The respondent must paginate and index the documents. (12) The digital and hard copy page numbers should match. Witness Statements (13) The claimant and the respondent shall prepare full written statements containing all of the evidence they and their witnesses intend to give at the final hearing and must provide copies of their written statements to each other on or before 29 September 2023. No additional witness evidence will be allowed at the final hearing without the Tribunal’s permission. (14) The written statements must:

• be typed in double or 1.5 line spacing;

• have numbered paragraphs;

• set out the relevant events in chronological order, with dates;

• contain all the evidence which the witness is called to give;

• be cross-referenced where relevant to the documents in the bundle (including references to the page numbers of those documents);

• state clearly if they contain evidence that can be heard in public or evidence that can only be heard in a private hearing

• contain only evidence relevant to issues in the case;

• state the source of any information not acquired at first hand;

• be signed and dated. Final Preparations for the hearing (15) By 16 October 2023 the parties are to write to the tribunal to confirm whether the case will be ready for the hearing. If it appears that the case will not be ready for the hearing, they should explain why in the email. (16) The parties are ordered to produce a ‘cast list’, chronology and hearing timetable which should be agreed, if possible. The respondent should provide a first draft to the claimant with a view to them being finalised by 27 October 2023. (17) By 2 November 2023 the respondent is to email a copy of all materials held digitally for use by the tribunal panel or a link to a site from which they can be downloaded, to londoncentralet@justice.gov.uk. (18) In addition, as the hearing is held in person, for the tribunal’s use the parties are required to liaise to ensure that the following is brought to the tribunal, on the morning of the first day of the hearing the following (a) five of the open witness statements (which includes a copy to be made available for inspection in accordance with rule 44); (b) five copies of the open bundle (this includes a copy to be made available to the public, if appropriate), (c) four copies of the closed bundle, which should contain the clsoed witness statement, (d) three hard copies of the chronology, a ‘cast list’ and hearing timetable. The parties should also ensure they have sufficient copies of the written materials for their own use. The parties must arrive at the tribunal building by 9:15 am on the first day of the hearing to ensure that they get through security. The parties must ensure that the tribunal’s papers are placed by them in the tribunal room before 9.30 am. They should not wait for a clerk. Inaccuracies (19) The parties must inform each other and the Tribunal in writing within 14 days of the date this is sent to them, providing full details, if what is set out in this document about the case and the issues is inaccurate and/or incomplete in any important way. Other matters (20) Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Any further applications should be made on receipt of these orders or as soon as possible. (21) The parties may by agreement vary the dates specified in any order without the tribunal’s permission except that no variation may be agreed where that might affect the hearing date. PART TWO: SUMMARY OF KEY DISCUSSIONS (22) The background to the hearing is set out in the judgment to which this document is attached. (23) In addition to the two decisions contained in the judgment, I was required to decide a number of applications for specific disclosure and make case management orders for the final hearing. (24) The most contentious decision concerned whether I should order the First Respondent to disclose the Candidate Material for all of the candidates considered by the relevant sift panel or just that for the 20 candidates that went on to the next stage of the process. The First Respondent accepted that the material should be disclosed, subject to various safeguards, for the 20 candidates but not all of them. However, it offered in addition, to provide in an anonymised format, a breakdown of the other 66 candidates against the criteria identified by the Claimant. Having considered the submissions made by both sides, I ordered the full (subject to redaction) disclosure to be limited to the 20 candidates who went on to the selection days. I gave oral reasons for my decision and was not asked to provide written reasons. (25) Both parties were in agreement that I should exercise the tribunal’s powers under section 10A of the Employment Tribunals Act 1996 and Rule 50 of the Tribunal Rules to put safeguards in place to protect the confidential information contained in the Candidate Material. I record here that I am satisfied, based on the clear and cogent witness evidence provided, that there is a need to deviate from the general principle of open justice in this case. In reaching this decision, I had regard to the respective and competing Convention rights of the parties and third parties involved contained in articles 6, 8 and 10, the statutory obligation of confidentiality contained in the CRA 2005 as well as the general public interest in open justice and in the public reporting of court proceedings. I am satisfied that the orders made are no more onerous than strictly necessary to achieve their purpose, which is to keep the identity of the candidates, their independent assessors and other individuals mentioned in the Candidate Material confidential. (26) Notwithstanding the above, in making the relevant orders, I was mindful that I had not seen the Candidate Material in its redacted form. I have therefore tried to make it clear that the judge or tribunal panel with future conduct of this case may wish to review the orders. I would encourage them to do so. (27) In addition, with the parties’ agreement, I am publishing this case management order so that anyone with a legitimate interest in challenging the orders can learn of them and make an application under Rule 50(4). (28) In addition to the issue of disclosure of the Candidate Material, I also considered applications for specific disclosure made by the Claimant and the Respondents. Most of these were resolved through discussions. (29) I did not order the First Respondent to conduct a search of the computer used by Mr Justice Chamberlain for any earlier drafts of the template he completed when assessing the Claimant’s application that might have been autosaved. I considered this to be disproportionate based on the way he described his process in his email dated 1 May 2022 (page 361 of the preliminary hearing bundle) and reviewing the forms including Ms Cooper’s forms (pages 153 - 156). I gave more detailed oral reasons for my decision and was not asked to provide written reasons. I also did not order the Claimant to disclose his tax returns or overall income. Again, in summary, my view was this was disproportionate as such information was not necessary to fairly dispose of the claim. I have more detailed oral reasons for my decision and was not asked to provide written reasons.

HEARING

[1]The claim of direct race discrimination, contrary to s13 Equality Act 2010, is dismissed;

[2]The claim of indirect race discrimination, contrary to s19 of the Equality Act 2010, is dismissed.

Introduction

[3]On 23rd November 2022 the case was case managed by Employment Judge Brown [OB165]. She listed a preliminary hearing to determine: 3.1. What documents relating to the applications of other candidates would be disclosable under standard principles of disclosure? 3.2. Whether the Employment Tribunal is a court such that it can authorise disclosure of such documentation under section 139 of the Constitutional Reform Act 2005? 3.3. Whether disclosure can be affected lawfully in accordance with the 2005 Act through redaction of any potentially identifying material, even if the Employment Tribunal is not a court? 3.4. If disclosure is directed, what measures need to be put in place to maintain the confidentiality of other candidates, independent assessors and any others, including whether all or part of the hearing, should be heard in private under section 10A of the Employment Tribunals Act 1996 and Rule 50 of the Employment Tribunal Rules? 3.5. Whether the claims against the individual respondents should be struck out?

[4]The Judge also recorded the List of Issues in the case [OB169] to which shall refer later. The Preliminary Point on Construction

[5]The Preliminary Hearing was heard by Employment Judge Burns on 3rd and 4th May 2023 [OB403]. She ruled that Employment Tribunal is a court for the purposes of s139 of the Constitutional Reform Act 2005 and that it could make the order for disclosure that it had made in this case. She dismissed all complaints against the 2nd, 3rd, 5th and 6th Respondents, upon withdrawal by the Claimant. She dismissed complaints under s111-112 Equality Act 2010 (‘EqA’) against the 4th Respondent upon withdrawal by the Claimant. The judge dismissed the Respondent’s application to strike out the s13 and s19 EqA complaints against the 4th Respondent. Accordingly, he remained a named Respondent for the determination of those claims. Given the dismissal of all claims against the other named Respondents, we shall hereafter refer to Mr Martin Chamberlain as a 2nd Respondent.

[6]In her Case Management Order, of the same date [OB437] the Judge gave directions on the steps to be taken by the parties to protect the confidential Candidate Material and to ensure that a determination of it was conducted in private.

[7]Her Order, at paragraphs 6 and 9, stated: (6) Subject to the orders below, by 1st July 2023, the first Respondent is ordered by consent to disclose the following to the Claimant(i) the application forms the forms completed by the candidates independent assessors,

(ii) the forms completed by the relevant SIFT panel members, namely Ms Long and Chamberlain J. and any notes that they may have made in respect of the 20 candidates who were assessed by the shift panel made up of Ms Long and Mr Justice Chamberlain (‘the Candidate Material’) and who were invited to the selection days. (9) Subject always to any orders made by the Judge or Tribunal Panel with conduct of the relevant hearing, the following orders are made in accordance with s.10A of the Employment Tribunals Act 1996 and Rule 50 of the Employment Tribunal Rules in respect of the Candidate Material: (i) Any part of a hearing during which the Candidate Material is considered and/or evidence is given about it, be heard in private. (ii) The Candidate Material and the evidence given about it should be contained in a ‘closed’ bundle, which should be prepared in hard copy only and which should not be made available to the public.

(iii) No person may publish or cause to be published the identity of any candidate or independent assessor or other person referred to in any of the Candidate Material (other than as contained in a public part of the ET judgment or reasons).

(iv) To the extent possible, the Candidate Material should not be referred to in any ET judgment or reasons. Alternatively, it should only be referred to in a way which does not make those who are referred to identifiable, or to the extent that it is not possible, that any such matters should be included in a confidential annex that is not made public.

[8]Paragraph 7 required the Respondent to provide information on 66 candidates assessed by Ms Long and Mr Chamberlain, to be anonymised save for the ethnic background of the candidates and any information pertaining to the PCPs relied on in the s19 EqA claim, namely whether a barrister or solicitor, whether a King’s Counsel (‘KC’)3, whether a partner in a Magic Circle law firm, whether there was previous Judicial experience, or advocacy experience. Paragraph 8 dealt with the practical steps to be taken by the parties and the Tribunal to ensure that the confidential material remained confidential.

[9]The Claimant did not appeal that Order, nor did he ask Employment Judge Burns to reconsider it. At the outset of the hearing, however, it was clear that the Claimant and the Respondent had a difference of opinion on how paragraph 9 of the Order (set out above) should be interpreted by the parties and by this Tribunal. The Claimant asked the Tribunal to interpret the expression ‘Candidate Material’ so as to exclude material that had already been redacted. The Claimant agreed that candidate material had to be heard in private. However, he asserted that where witness statements referred to redacted material, that should be available. He sought to draw a distinction between redacted and unredacted material. The Claimant invited the Tribunal to look at the redacted material and decide if its release would infringe the Article 8 rights of the individual. The Claimant agreed with the public policy point that the redaction of candidate material was appropriate and that redacting more than just a candidate’s name was necessary. 3 Queen Elizabeth II died on 8th September 2022, during the relevant time period covered by this case. To avoid unnecessary swapping between descriptors dependent upon when they were referred to, all references in this Judgment to ‘Queens Counsel’ or ‘QC’ have been updated to ‘Kings Counsel’ or ‘KC’.

[10]We were invited to construe the expression ‘candidate material’ in a way that distinguished between redacted and unredacted. This submission was undermined by the definition of ‘candidate material’ as set out by Judge Burns in paragraph 6 of her Order. This definition allowed for no such distinction to be made. We gave an oral Judgment dismissing the Claimant’s application for the expression ‘candidate material’ to be construed in other way than was clearly defined in paragraph 6 of her Order.

The Issues

[11]This hearing was case managed by Employment Judge Brown on 23rd November 2022 [OB165-172]. She identified the Issues in the case as Direct Discrimination (s13 EqA) 11.1. In not being invited to a selection day, was the Claimant treated less favourably than a candidate who did not share his protected characteristic, being a person of colour of Indian national origin, whose circumstances were otherwise materially the same as his, would have been treated? 11.2. If the Claimant has shown facts from which the ET could conclude that the less favourable treatment was because of race, have the Respondents shown that race was no part of the reason they acted as they did? 11.3. The Claimant compares himself with hypothetical white, or white including mixed-race, comparator. Indirect Discrimination Claim (s19 EqA) 11.4. For the purpose of his indirect discrimination claim, the Claimant contends that the selection process disadvantages black and brown candidates, including persons of colour of Indian national origin, and advantages white, including mixed-race, candidates. 11.5. Did the Respondents apply the following Provision, Criterion or Practice (‘PCP’) in the relevant selection process: namely giving preference to candidates who: 11.5.1. Were a barrister; 11.5.2. Were a KC; 11.5.3. Had substantial experience of advocacy and/or litigation in the higher courts; and/or, 11.5.4. Had significant judicial experience. 11.6. If so, did those PCPs put people who shared the Claimant’s characteristics at a substantial disadvantage, compared to people who did not? 11.7. Did they put the Claimant at that disadvantage? 11.8. If so, can the Respondents show that the PCP was a proportionate means of achieving a legitimate aim?

[12]At the close of day 3, during cross examination, the Claimant withdrew the PCP that candidates ‘were a partner in a Magic Circle law firm’. Early on day 4, during cross-examination, the Claimant applied to amend the definition of the comparator from ‘hypothetical white, or white including mixed-race’ to a ‘white comparator only’. The amendment application was unopposed and we allowed it.

[13]This followed some debate in which the Claimant asserted that an individual who identifies as mixed race (ie White Asian) should properly be treated as ‘white’ and not ‘mixed race’. The Claimant asserted that such a person should be considered white. The 1st Respondent, in collating its statistical data defines ‘ethnic minority’ as including ‘Black, Asian, Mixed and other ethnic groups, but excludes white ethnic minorities’ [OB1901 Note 8]. We shall return to this point later.

[14]We were provided with a Cast List, Chronology, Trial Timetable and PreReading List. Both Mr Cooper KC and the Claimant contributed to those documents and we were grateful to them for their work. The Claimant provided a Schedule of Loss [OB215] in which he valued his claim at £1,378,791.96 before grossing up and interest.

The Evidence

[15]We were provided with an agreed ‘open’ trial bundle which ran to 1989 pages, in both hard copy and electronic format. To that an additional number of pages, taking the total to 2012 pages, were added. The ‘open bundle’ was contained in a number of white lever arch files. We were also provided with a ‘closed’ bundle in a black folder, containing the confidential Candidate materials, running to 391 pages.

[16]We were provided with the following witness statements: 16.1. The Claimant’s ‘open’ witness statement (in which his oral evidence on the Candidate material had been redacted) running to 126 pages, which was publicly available. 16.2. The Claimant’s ‘closed’ witness statement (with no redactions and was to be considered in private only); 16.3. A supplemental witness statement from the Claimant, running to 5 pages; 16.4. Mr Chamberlain’s ‘open’ witness statement (in which his oral evidence on the Candidate material had been redacted) running to 28 pages, which was publicly available; 16.5. Mr Chamberlain’s ‘closed’ witness statement (with no redactions and was to be considered in private only); 16.6. A witness statement for Yvette Long, running to 10 pages; 16.7. A witness statement for Alex McMurtrie, the 1st Respondent’s Chief Executive and Accounting Officer, running to 41 pages.

[17]Each of the witnesses gave evidence from a witness statement and was subject to cross examination.

Findings of Fact

[18]We have not recited every fact in this case, or sought to resolve every dispute between the parties. We have limited our analysis to the facts that were relevant to the Issues that we were tasked to resolve. We made the following findings of fact on the basis of the material before us, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities, taking into account its assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts.

[19]The Claimant is a solicitor in private practice, based at the firm Excello Law Ltd. His application to the Respondent described his job title as Consultant [OB649]. The Claimant identifies himself as being ‘a person of colour (non- white) of Indian national origin and a British Citizen’ [AG9] and [OB30]4.

[20]The 1st Respondent is a body corporate under s61 Constitutional Reform Act 2005 whose function is to recommend candidates for appointment in England and Wales to Courts and Tribunals (excluding the Supreme Court).

[21]The 2nd Respondent, Martin Chamberlain, is a sitting High Court Judge, who, with Yvette Long, formed the Sift Panel that determined whether the Claimant’s application for the position of Deputy High Court Judge should proceed to the next stage in the application process. He was the Judicial Member of the sift panel. 4 Paragraph 9 of the Claimant’s Particulars of Claim [OB30] and of his witness statement [AG9].

[22]On 12th January 2022 the 1st Respondent launched a selection exercise to recruit 28 candidates for the office of Deputy Judge of the High Court. From here on we shall refer to the role as ‘Deputy High Court Judge’ or ‘DHCJ’. The advert for the position contained the following extract [OB904]: ‘No previous judicial experience is required. All solicitors and barristers with at least seven years post qualification legal experience are eligible to apply. The Commission encourages diversity and welcomes applications from groups currently underrepresented in the judiciary. The principles of fair and open competition will apply and recommendation for appointment will be made solely on merit’.

[23]In December 2021 the 1st Respondent published information for the role, which included a job description stating, ‘Candidates applying for this post must be of high calibre, an exceptional ability with the potential to progress to the High Court.’ [OB919]. 238 candidates applied. The vacancy details required candidates of exceptional ability and identified the skills and attributes required for the role, upon which the candidates would be assessed [OB918]. They were: 23.1. Legal and Judicial Skills:(i) exceptional intellect,

(ii) analysis of complex issues, reaching clear reasoned decisions,

(iii) expertise in one or more areas of law, and if unfamiliar judging it fast, and

(iv) grasp of what underpins a fair hearing. 23.2. Personal Qualities: (i) integrity and independence of mind, (ii) resilience and calm under pressure, (iii) attentive listener, clear communicator, (iv) courteously authoritative in Court even in complex and demanding situations, and

(v) understanding and treating fairly, different individuals, communities and groups. 23.3. Working effectively: (i) a team player, seeking and offering candid advice when needed, (ii) efficiently dispatching business, including supporting staff; (iii) supporting change throughout the judiciary, and (iv) aware of the role of the Judge in twenty-first century society.

[24]The following guidance was provided to candidates on completing their application forms [OB936]: ‘The strongest self assessments provide between 1 and 3 examples within each competency area and demonstrate breath, showing clearly how you approached each situation and achieved a successful outcome. Your strongest examples might not come from a legal or judicial context. For instance, if you have not sat as a judge before, you may have chaired a committee or board meeting. You could draw upon any voluntary or pro bono work you may have done, such as working with charities for schools to provide examples of the competencies.’

[25]The Claimant applied for appointment to the Office of Deputy High Court Judge, pursuant to s9(4) Supreme Courts Act 1981 on 9th February 2022, the closing date for applications [OB648]. Within the application form the candidate is provided with a list of every JAC Commissioner and every JAC panel member. They are required to state whether they know a Commissioner and Sift Panel member and if so, to provide details in order to determine whether that knowledge presents or risks presenting a conflict of interest. Knowing someone is, of itself, not a reason to declare a conflict. More detail is then requested to determine whether the relationship gives rise to a conflict or not. At this point in the process the Commissioners to oversee of the process have not been appointed and the Sift Panel members have not been allocated candidates. In respect of the Commissioners the Claimant stated that he knew Dame Susan Carr [OB1995] and he provided the following detail ‘I was a member of a shift panel in December 2021 in the selection of Solicitors Disciplinary Tribunal members and Dame Susan Carr oversaw that process’. In respect of the Sift Panel members the Claimant identified that he knew one, Stephanie McIntosh, stating that they had sat on the same sift panel for the Solicitors Disciplinary Tribunal in December 2021. He did not know Mr Chamberlain. The Claimant provided this information on 9th February 2022.

[26]Both the Commissioners and the Panel Members, prior to any allocation of candidates into panels, also had to state whether they knew any candidate, and if so to provide details, for the purpose of identifying a possible conflict. To this extent every panel member, at the outset of the process saw the names of every candidate. By the time the candidates had been allocated to a Sift Panel, their names had been redacted and replaced with a number. On Dame Susan Carr’s declaration dated 9th March 2023, she confirmed that she knew the Claimant. However, she stated that she considered herself conflicted and she gave the following reason [CB579] ‘I have interviewed him for panel membership of the SDT (Solicitors Disciplinary Tribunal). He has an ongoing complaint to the JCIO (Judicial Conduct Investigations Office) against me’. We note that the Claimant failed to reveal that critical detail of his dealings with the Judge in his own conflict form. We shall return to this later.

[27]Mr Chamberlain completed his own conflict form, having had access to the full list of 235 candidates [MC21]. He identified 6 candidates that he knew, but did not consider there to be a conflict, explaining the nature of the relationship. One candidate he recused himself from on the grounds that the candidate was a personal friend. He saw the Claimant’s name on list, but Mr Chamberlain did not know it, so he did not declare a relationship [MC21]. He did not know the Claimant [CB573-574]. Ms Long’s declaration form stated that she knew the Claimant, having sat with him on a selection panel. She did not consider that that raised a conflict [CB575].

[28]The knowledge / conflict declarations of every candidate and every panel member influenced which Sift Panel each candidate was allocated to.

[29]The application form required candidates to demonstrate with between 1 and 3 examples the three competencies referred to above (and their 13 subcompetences) in just 1,500 words. This task in itself required exercising judgment. Too long spent on one sub-competency risked leaving others undemonstrated or inadequately demonstrated. If a candidate spread his/her word limit over 3 examples for all 13 sub-competencies, he/she would have about 38 words to use per example. The greater the number of examples used per sub-competency (within the range of 1 to 3 examples) increased the chances of a particular sub-competency being demonstrated. The Claimant used his word allocation (excluding headers) as follows: 29.1. Legal and Judicial Skills: 724 words in total(i) exceptional intellect: 124 words

(ii) analysis of complex issues: 405

(iii) expertise in one or more areas of law: 0 words

(iv) grasp of what underpins a fair hearing: 195 words 29.2. Personal Qualities: 458 words in total (i) integrity and independence of mind: 136 words (ii) resilience and calm under pressure: 206 words (iii) attentive listener, clear communicator: 0 words (iv) courteously authoritative in Court: 0 words

(v) understanding and treating fairly: 116 words 29.3. Working effectively: 280 words (i) a team player: 88 words (ii) efficiently dispatching business: 28 words (iii) supporting change throughout the judiciary: 127 words (iv) aware of the role of the Judge: 37 words

[30]The Claimant elected to use approximately half of his total word allocation on the first competency. There were three sub-competencies that the Claimant elected not to demonstrate any with examples, at all. All candidate’s independent assessments were due in by 2nd March 2022.

[31]The 1st Respondent held a Sift Panel briefing on 21st March 2022 [OB604] which included training on fair selection [OB625] and unconscious bias [OB622]. Sift Panel 1 had from 21st until 28th March to sift its candidates and a further 8 ‘write up’ days to 8th April 2022. The panels had a target of selecting 84 candidates for the next round, which would consist of a role play exercise and interview, to be conducted on 22nd-24th June and 4th-11th July 2022. 32. 238 applications were made. 3 did not meet the minimum statutory requirements for applying (7 years’ experience, an ability to sit for 8 years and a citizenship requirement [AM19]5). The remaining 235 applications were sifted by four sift panels who were tasked with identifying the best 84 candidates who would progress to the selection day. The candidates were 5 Paragraph 19 of Alex McMurtrie’s witness statement assigned to a sift panel that contained a Judicial member from the division of the High Court that they had expressed an interest in. There are three divisions, namely the Queen’s Bench, Chancery and Family divisions. The 2nd Respondent, a High Court Judge from the Queen’s Bench division, was assigned to a sift panel (Sift Panel 1) for candidates who had expressed an interest in joining that division, as the Claimant had [OB648]. Sift Panel 1 consisted of Mr Chamberlain and Ms Long. They were given 67 applications to ‘sift’ over a period of six days. The Claimant’s application was considered on the 5th day.

[33]Given that candidates were appointed to a Sift Panel that had a High Court Judge from the division of the High Court that they were applying for, it was possible that, whilst every application was name blind, the appointed Judge would nonetheless recognise an individual from their competency examples if the candidate had appeared in front of that Judge or had given a competency example which referred to a well-known Queen’s Bench Division case, or contained some other professional achievement that the Judge was aware of. Recognition, in those circumstances, was not a ground for recusal or conflict nor could it be, as the process had started with every panel member being given a list of every candidate. On this point Mr Chamberlain told us that he had professionally recognised 9 of the successful candidates 4 of which were non-white [MC29] (3 were Asian candidates and 1 was mixed race). Of the Claimant’s application he said [MC31] ‘There was nothing on his form or in either of the independent assessments which enabled me to identify him. I knew he was a man because one of his assessors referred to him as ‘he’. The information I had about him came entirely from his name blind form and his two independent assessors’. We accept this evidence and find 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.

[34]The sift panels scored each candidate against each criteria as ‘A’ an outstanding candidate, ‘B’ a strong candidate, ‘C’ a selectable candidate and ‘D’ not presently selectable. An overall grade (A to D) was then applied to each candidate. There were 13 criteria across the 3 main competencies. Each competency was awarded a grade. Each grade attracted points, as follows: 4 for an A, 3 for a B, 2 for a C and 1 for a D. Added together these points provide a final numerical score and an overall grade.

[35]This meant that any candidate with an overall grade of A to C was deemed selectable as a deputy High Court Judge. Whether a candidate who was deemed as selectable progressed depended on factors outside of the control of the sift panels, namely the number of other candidates who scored the same or better grading, and the number of available vacancies for the selection day, which in this case was the best 84 candidates. All selectable candidates were ranked in order of merit. The 1st Respondent applied an equal merit provision where two of more candidates were assessed as being of equal merit and there was a clear under-representation within the judiciary on the basis of race of sex [OB619]. The equal merit provision would apply where two or more candidates had the same numerical score but they fell over the cut off line for selection. Calibration and moderation exercises followed. The final decision as to who progressed to the next stage was made by the 1st Respondent’s Commissioners at an EMP sub-committee of the Selection and Character Committee (‘SCC’). It is important to note that the candidates were not scored against each other; they were scored against the criteria for the competition.

[36]Once the 4 sift panels had awarded a grade to each candidate, the role of the sift panels was over. The determination of the best 84 candidates, who would progress to the next interview stage, was then a process of identifying the highest scoring candidates from each panel. None of the sift panels would have known the cut-off point until all of the applications had been marked [AM59]. From those 84 candidates, the best 28 would be appointed to the position of DHCJ. In the Claimant’s competition, and across all sift panels the scoring was as follows: 36.1. There were 6 candidates assessed as ‘A’ or ‘outstanding’ overall; 36.2. 76 assessed as ‘B’ or ‘strong’. These candidates totaled 82 of the successful candidates selected for the next round); 36.3. One candidate was awarded a C overall, but progressed to the selection day on account of receiving an ‘A’ for Legal and Judicial Skills. In total 83 candidates progressed to the selection day. 36.4. A further 67 candidates, like the Claimant, were awarded a ‘C’ or ‘selectable grade’; 36.5. 85 candidates were awarded a ‘D’ or ‘not presently selectable’ grade.

[37]The sift process was ‘blind’. This meant that the panel members did not know the name or the race of any candidates. This was confirmed in the Exercise Information provided about the competition [OB849] and in the training provided to the sift panel members [OB894, 898] and in the advert to candidates [OB905]. This was in accordance with the Judicial Diversity Forum 2020/2021 Action Plan [OB1635]. It was explained to us by the 1st Respondent’s Chief Executive, Alex McMurtrie [AM47]. The process was described in the 1st Respondent’s Selection Policy Guide [OB2011] as ‘The JAC uses name blind sifting for all exercises using a paper sift as a shortlisting method to further promote fair selection and diversity. The JAC Digital platform will automatically redact the candidates name and allocate a unique identifier which will then be used for the panel packs. This is a simple process whereby the selection exercise team will select the candidate on the platform and press the download button on the redacted application in the panel pack view. The downloaded documents will currently be in a PDF format but may change as the platform develops. Panel members do not have access to the platform, so would not be able to access any other candidate and information other than what is provided to them by the team. Over time this may also change, but panel members were still only see relevant candidate information. The unique identifier will be used in place of an applicant's name whenever we generate reports from the platform. Selection exercise teams should ensure that the names of candidates are manually redacted from all sift materials to be used by the panel. For example, independent assessments will need to have the candidates names removed and replaced with the unique identifier and any other character declarations or related documents may also need redacting. No other potential identifiers of an individual or their diversity characteristics, such as gendered pronouns, need to be redacted.’

[38]The ethnic breakdown of the candidates was as follows: Ethnicity 235 Candidates sifted by 67 Candidates sifted by Mr all sift panels Chamberlain & Ms Long’s Panel White Number: 178 Number: 50 Selected: 64 Selected: 14 Percentage: 36% Percentage: 28% Non-white or Number: 56 Number: 17 mixed Selected: 19 Selected: 6 background. Percentage: 34% Percentage: 35%

[39]Sift Panel 1 shortlisted a greater percentage of successful non-white or mixed candidates than white candidates. Mr Chamberlain’s scoring of the Claimant’s competency examples was C for each competency and C overall [OB664]. Under Legal and Judicial Skills for ‘analysis’ Mr Chamberlain noted that the International Law example was complex, but that it did not demonstrate a breath of work that required analytic skills. He also noted that the Claimant’s Solicitor’s Disciplinary Hearing example illustrated an understanding of fair hearing principles. Under Personal Qualities he noted that the ‘resilience’ example was good and demonstrated an ability to hold ground in the face of serious opposition. He also noted that the Claimant’s ‘treating fairly’ examples showed an awareness of discriminatory practices and taking concrete action to address them. There was no indication that Mr Chamberlain had deduced or even considered deducing the Claimant’s ethnicity from his examples. Mr Chamberlain had done no more than record that the Claimant had demonstrated the personal quality of ‘understanding and treating fairly different individuals, communities and groups’. Under Working Efficiently Mr Chamberlain noted that whilst the Claimant’s ‘team player’ examples lacked detail, he noted that the equal merit provision example demonstrated thought about fair recruitment procedures and taking concrete action with a positive result. It is clear that Mr Chamberlain was marking the Claimant up for his tackling racism examples. Overall, however, given the paucity given to some competencies and the complete failure to address others, Mr Chamberlain marked the Claimant as a C for each competency and a C overall. Whilst Mr Chamberlain was not required to grade the independent assessors, he noted that whilst they were not lawyers, and they had focused on the Claimant’s project finance work, they had provided support for all of the criteria headings.

[40]In his evidence, Mr Chamberlain told us [MC66] ‘The Claimant believes that his application was outstanding. I did not think so. My provisional grades for the Claimant were C for Legal and Judicial Skills, C for Personal Qualities, and C for Working Efficiently with an overall grade of C. I thought he had provided sufficient evidence for each of the required skills and was so selectable for progression to the next stage of the competition. I did not know whether, if this was the agreed grade, the Claimant would end up progressing’.

[41]Yvette Long also graded the Claimant as a C for each category and a C overall [OB666]. Her form had been completed in manuscript, not type. She gave the Claimant a provision score for Legal & Judicial Skills as C/B and then on discussion with Mr Chamberlain revised it to a C. For Personal Qualities she gave a provisional score of B/A and then on discussion with Mr Chamberlain revised it to a C. For working efficiently her provisional grade was C/D which she reviewed to a C. Her initial overall grade was B/C which she revised down to a C. She ticked ‘grasps what underpins a fair hearing’, ‘integrity and independence of mind’ and ‘resilience and calm under pressure’ as demonstrated. She confirmed in her witness statement [YL16] that she did not prefer barristers to solicitors, or KCs to non-KCs, or Magic Circle partners to partners from other firms. She did not consider that advocates would make better candidates. Ms Long confirmed that the application was ‘name blind’ and that she had not deduced anything about the Claimant’s ethnicity from his application form [YL19].

[42]The Sift Panel’s final report on the Claimant awarded a C for each category and a C overall [OB669]. It set out the observations of both panel members, as follows: The candidate demonstrated sufficient evidence of Legal and Judicial Skills. When addressing their analytical skills the candidate explains in great detail the conclusion reached on a particular and admittedly complex legal issue encountered in 2019 requiring knowledge of German and EU law. They do not however show a breadth of work requiring such analytic skills, particularly in areas outside their specialism. The disciplinary hearing adjournment example shows an understanding of fair hearing principles. The range and scope of the evidence given was no more than sufficient. The candidate demonstrated sufficient evidence of Personal Qualities. The example showing resilience and independence of mind in a highly politically sensitive circumstance where the candidate had come under significant pressure to change their advice showed their ability to hold ground in face of serious opposition. The example of the dissenting judgement in the disciplinary sexual harassment example showed a sensitivity and insight into the issues but it was not clear how this was relevant to this skill area. The candidate did give two examples related to the fair treatment of different groups showing an awareness of discriminatory practices and taking concrete action to address them. The mixed relevance and breadth of the examples given made the evidence no more than sufficient. The candidate demonstrated sufficient evidence of Working Effectively. While the candidate gives examples of team working they give no details about how they work collaboratively with others except in the example of working on the disciplinary panel, where they describe guiding members and managing the clerk. The example of suggesting introducing the equal merit provision into the recruitment of members to the disciplinary panel showed a proactive approach to enabling change. They also showed a clear understanding of the role of a judge in the twenty-first century. Overall the lack of detail in some areas made the evidence no more than sufficient.

[43]As Ms Long stated in her statement [YL29] ‘overall the panel considered the evidence of all three areas was sufficient, they noted the supportive independent assessments reaffirmed the assessment of the candidates own evidence. This meant that the claimant met the required standard to be recommended for interview, but whether the claimant was in fact invited to interview would depend on how the other candidates scored.’

[44]We accept, and find as a fact, that Mr Chamberlain and Ms Long applied scores for the Claimant based on their assessment of his application to the 1st Respondent’s published criteria as is evidenced in their respective score sheets [OB666 and OB664], overall report [OB669] and witness statements [MC65-88] and [YL18-30] and did so in good faith. The Claimant cannot gainsay that evidence and has not done so. The Claimant’s assertion that Mr Chamberlain and Ms Long used their own criteria for sifting candidates [AG164] is rejected in light of our findings of fact. We reject the Claimant’s assertion in his witness statement that any other conclusion on this point would be sheer lunacy [AG165].

[45]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. In particular we refer to the following assessments made by Sift Panel 1 which were demonstrably fair assessments of the competency example given: 45.1. The Claimant provided a good example of ‘analysis of complex issues’ however it was only one example and too much of the Claimant’s application was taken up by it. This did not demonstrate regularly analysing complex issues and was within the Claimant’s specialism. 45.2. The Claimant provided a good example of ‘fair hearing’ regarding an adjournment. His second example did not illustrate that competency however. 45.3. The London Transport example was a good example of ‘resilience and calmness’. The ‘integrity and independence’ example (regarding collaborative evidence of a sexual assault) was considered weak because it did not indicate whether the Claimant’s opinion was in the minority or not. 45.4. The treating fairly examples were considered good examples, subject to observing that the examples given did not include the level of detail that the Claimant has now provided in his witness statement. 45.5. The Claimant elected not to provide any examples under ‘attentive listener’ and ‘courteously authoritative’. This decision we think did make a high overall score unlikely. 45.6. The Claimant’s ‘supporting change’ example (relating to the equal merit provision) was good, however his ‘team player’ example did not demonstrate that competency. 45.7. The Claimant did not make sufficient use of his experience acting in a quasi-judicial role as Chair of the Solicitor’s Disciplinary Tribunal. It is likely that such skills would have been transferable to the DHCJ role but were under utilised in comparison to the Claimant’s project finance experience which demonstrated a less transferable skill set.

[46]We remind ourselves that the Claimant was not deemed unselectable as a DHCJ. Sift Panel 1 considered the Claimant to have demonstrated sufficient competency to be selectable. Whether a selectable candidate progressed to interview involved an assessment of the number of other selectable candidates against the number of vacancies for the role. That exercise was not carried out by Sift Panel 1. It therefore follows that we reject the Claimant’s submission that Mr Chamberlain decided to reject the 1st Respondent’s criteria (or PCP) of Legal and Judicial Skills, Personal Qualities and Working Efficiently and replace it with his own personal criteria of(i) being a barrister,

(ii) a KC,

(iii) had substantial advocacy or High Court litigation experience and/or

(iv) significant judicial experience. This is important because the Claimant accepted in cross examination that the published criteria [OB918] did not put him at any disadvantage. If they had been followed, he asserted, he would have had no claim. His claim is based on the assertion that Martin Chamberlain swapped out the 1st Respondent’s published criteria (Legal and Judicial Skills, Personal Qualities and Working Efficiently) for his own racist criteria and was then able to persuade Ms Long to do the same. It is that criteria (being a barrister, a KC, had substantial advocacy or High Court litigation experience and/or significant judicial experience) that, the Claimant asserts, put both him and other non-white candidates at a disadvantage. We do not accept that criteria was applied.

[47]We also accept that the 1st Respondent had the aim, in its selection process, of selecting candidates for the role of DHCJ of the highest calibre. This, we find was a legitimate aim for the 1st Respondent to have. In the absence of any evidence that an alternative process would have been more favourable to Indian or ethnic minority candidates, the 1st Respondent’s process was a proportionate means of achieving that legitimate aim.

[48]Although Mr Chamberlain and Ms Long had rated the Claimant as selectable for the role of DHCJ, on 21st April 2022 the Claimant was informed that he had not been shortlisted for the selection day, which was the next stage in the application process [OB693]. He had been awarded a C, or selectable grade overall, and his numerical score was a 6. Accordingly the Claimant was scored as a C6. The cut off for this exercise was a numerical score of C8. 83 candidates scored a C8 or above and progressed to the next stage. As there was not a group of candidates with the same score straddling the cut-off point the equal merit provision was not applied.

[49]The statistical data for the JAC00086 DHCJ competition that the Claimant applied for revealed the following [OB1901]: Characteristic Eligible Pool % Applicants % Short listed % Appointed % Ethnic 20,561 17% 56 24% 19 23% 7 24% Minority6 White 98,477 83% 179 76% 64 77% 22 76%

[50]For this competition, the following can be deduced: 50.1. Ethnic minority and mixed candidates made up 17% of the eligible pool (ie those that met the basic statutory criteria for appointment). 6 The published statistical data at Footnote 8 defined ethnic minority as including Black, Asian, Mixed and Other Ethnic Groups but excludes White Ethnic Minorities [OB1901]. 50.2. Those candidates applied in a higher proportion than their representation in the eligible pool, as 24% of the applicants that applied were ethnic minority or mixed race. This is some anecdotal evidence that the 1st Respondent’s outreach programs (which were set out in the JAC’s July 2023 Diversity Update at [OB1809 and 1810]) were working. 50.3. Once in the competition, there was hardly any drop off in representation between those that applied and those that were selected for interview, with the percentage of ethnic minority or mixed race remaining steady at 23%. 50.4. Once selected for interview there was no drop off between that stage and those recommended for appointment, with the percentage of ethnic minority or mixed race remaining steady at 24%. The Applicable Law Direct race discrimination

The Applicable Law

[51]Direct discrimination is defined in EqA, s13 (so far as relevant) as follows: ‘13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

[52]This requires a comparative analysis to be undertaken by the Tribunal between the treatment of the Claimant and the treatment of another person that does not share his protected characteristic. That person may be an actual or hypothetical comparator. There must be no material difference between the circumstances relating to each case: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL at para 108 (Lord Scott) and s23(1) EqA10.

[53]The circumstances which are material are those which are relevant to the decision or treatment in question. Whether a comparator in materially the same circumstances was treated more favourably is interlinked with the reason for the treatment in question. Whether there was less favourable treatment and whether it was because of race are aspects of a single question, not separate questions. Tribunals can focus primarily on the reasons for the treatment, from which the appropriate inference as to less favourable treatment will then naturally flow. Shamoon at paras 8-12, 53-54, 125 and 134-136.

[54]If the Tribunal is satisfied, having heard all the evidence, including the explanations provided by the decision-makers, that race played no part whatsoever in the decision, then it is not necessary to have recourse to the burden of proof provisions: Hewage v Grampian Health Board

[2012] ICR 1054

, SC, para 32 Lord Hope. Otherwise, the Claimant bears an initial burden of proving facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondents directly discriminated against the Claimant because of race (EqA, s136). If the Claimant proves such facts the burden shifts to the Respondents to prove that they did not directly discriminate against him because of race.

[55]In applying the shifting burden of proof, a two-stage approach is required. At the first stage, the burden is on the Claimant to establish facts from which, in the absence of another explanation, a finding of direct discrimination could be made. It is not sufficient for the Claimant to lead evidence from which it might be possible to find direct discrimination, he must prove the primary facts from which the Tribunal could (in the absence of another explanation) find that discrimination has occurred: Igen v Wong

[2005] ICR 931

, CA, at paras 17, 25- 33 Peter Gibson LJ.

[56]The tribunal needs to consider all the evidence relevant to the discrimination complaint, ie(i) whether the act complained of occurred at all,

(ii) evidence as to the actual comparators relied on by the Claimant to prove less favourable treatment,

(iii) evidence as to whether the comparisons being made by the Claimant were of like with like, and (vi) available evidence of the reasons for the differential treatment: Madarassy v Nomura International plc

[2007] ICR 867

, CA para 65-72. This will include evidence as to the Respondent’s knowledge or perception of the Claimant’s race. It will be for Claimant to prove on the balance of probabilities that the discriminators did know or form a perception as to his race: Efobi v Royal Mail Group Ltd

[2021] ICR 1263

, SC para 45.

[57]Having made relevant primary findings, the Tribunal should step back and consider all the relevant facts in the round in order to determine what inferences it could in the absence of another explanation: Qureshi v Victoria University of Manchester & another

[2001] ICR 863

, EAT, at paras 875F- 876B. It is not sufficient to shift the burden of proof for the Claimant merely to prove a difference in race and a difference in treatment; he must also prove additional primary facts which could in the absence of another explanation support an inference that mental processes of the individual alleged discriminators were materially influenced by race: Kohli v Department for International Trade

[2023] EAT 82

, at para 71(d).

[58]In the context of a selection exercise, it is not sufficient to shift the burden to point to other candidates of a different race who were selected: the Claimant must show that that their circumstances were materially the same and that there is some basis for inferring that race materially influenced the selection: Virgin Active Ltd v Hughes

[2023] EAT 130

, at para 68-69.

[59]Unreasonable conduct in relation to the Respondent’s sift exercise would not be sufficient to support an inference of direct discrimination: Glasgow City Council v Zafar

[1998] ICR 120

, HL, at para 124A-E. Unreasonable behaviour is not necessarily discriminatory. A charge of discrimination is a very serious matter to find established against anyone: any such finding must have a proper evidential basis: Bahl v The Law Society

[2003] IRLR 640

, EAT at para 134. The Respondents’ non-discriminatory explanation for its treatment does not have to be a good one in the sense of one that satisfies some objective standard of reasonableness. If the burden shifts, then to discharge that burden the Respondents must show that the treatment in question was ‘in no sense whatsoever’ because of the protected characteristic: Nagarajan v London Regional Transport

[1999] ICR 877

, HL at para 510H-511H.

[60]Cogent grounds are required to support a finding of subconscious bias. Such a conclusion cannot be reached on the basis of speculation, but only where there is clear evidence to support such an inference: Bahl at para 127. If the Tribunal accepts the decision-maker’s assessment as honest and credible, that is an end of the matter unless there is a proper basis for a finding of subconscious discrimination: Kohli at paras 59-65. Indirect discrimination.

[61]Indirect discrimination is defined in EqA10, s19 (so far as relevant) as follows: 19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and, (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[62]The Claimant has the burden of proving that the Respondents(a) did apply the alleged provision, criterion or practice (‘PCP’) to people of all races,

(b) that the PCP put people of his race in general at a particular disadvantage and

(c) the PCP put the Claimant at that disadvantage. If established, the burden then shifts to the Respondents to prove that the PCP was nevertheless a proportionate means of achieving a legitimate aim.

[63]The function of a PCP is to identify what it is at the Respondent which is said to give rise to a particular disadvantage to people who share the Claimant’s race. It is for the Claimant to identify the PCP which he seeks to impugn. The Claimant must identify a PCP which was actually applied by the Respondents. The term ‘particular disadvantage’ refers to the need for the Claimant to show that particularly persons sharing the Claimant’s race were disadvantaged by the PCP in question: McNeil & others v HMRC

[2020] ICR 515

, CA at para 16. This may be done either by statistical evidence or by other evidence which shows that the protected characteristic in question is obviously or inherently more likely to be associated with disadvantage as a result of the PCP: Chief Constable of West Yorkshire Police v Homer

[2012] ICR 704

, SC, at para 14. What is required is to demonstrate a causal link between the PCP and a group disadvantage; the reasons for any such link are immaterial.

[64]Where statistics are relied on, the proper form of analysis is to calculate the proportion of all individuals with the relevant protected characteristic in the relevant overall pool who are advantaged by the PCP, and to compare that with the equivalent proportion of those who do not share the characteristic in question: R v Secretary of State for Employment, ex parte Seymour-Smith

[1999] ICR 447

, ECJ at para 59. The point in time that a particular disadvantage must be assessed is the point when the PCP was applied to the Claimant. The assessment must be made by reference to data applicable at the point of the sift in March 2022 and earlier data should not be brought into account Clarke v Eley (IMI) Kynoch Ltd

[1983] ICR 165

at para 172D-G.

[65]The difference must be considerable, or, to put it another way, “far” more people in the protected group must suffer the disadvantage’: McNeil at para 20 per Underhill LJ). It is for the Tribunal to assess whether the statistics are significant, which, in this context, is a wider concept than statistical significance. It refers to whether, on the Tribunal’s assessment, the statistics are probative of a race-related disparity: McNeil at para 19.

[66]It is for the Claimant must show that he was put at the same disadvantage as the group: Ryan v South Western Ambulance Service NHS Foundation Trust

[2021] ICR 555

, EAT at para 55(ii). The disadvantage is the failure to achieve the benefit in question as a result of the PCP. A particular Claimant would not put at a disadvantage by the relevant PCP if he is an ‘undeserving Claimant’ for example because in Essop ‘he failed because he did not prepare, or did not show up at the right time or in the right place to take the test, or did not finish the task’.

[67]The question of whether the PCP was a proportionate means of achieving a legitimate aim is an objective test which requires the Tribunal to carry out a ‘critical evaluation’ and determine for itself whether the means used are proportionate to any legitimate aim, balancing the detriment to the Claimant against the importance of the aim and considering whether that aim could have been achieved by means which would have had less of a disparate impact: Hardy & Hansons plc v Lax

[2005] ICR 1565

, CA, at paras 32-34.

[68]We shall now turn to our conclusions: Our Conclusions

Credibility

[69]Before turning to our conclusions on the Issues we consider it necessary to set out our view on the credibility and character of the Claimant and the 1st Respondent’s witnesses. In so doing we recognise that claims of race discrimination are among the utmost serious of the claims that a Tribunal is tasked to determine. For a victim of race discrimination a fair assessment and resolution of their concerns is essential. We understand just how important that is to victims of discrimination and the burden to get that right weighs heavily upon us. Discrimination claims can involve high levels of emotion and, sometimes, a Claimant’s desire to win has the potential to lead to an overstating or exaggeration of matters which, due to their perspective, is not necessarily an indicator of dishonesty. The alleged perpetrators of discrimination can become demonised in the eyes of a Claimant to such an extent that they may start to insult an individual perceived to be a perpetrator beyond which is reasonable or necessary for the fair determination of their claim. These can be common features of discrimination claims, particularly when a Claimant is a representing himself / herself against a large organisation.

[70]That said, allegations of discrimination, particularly of being racist, are of the utmost serious to managers of an organisation accused of that conduct. Their job may well be threatened by such a finding, which may also have the potential to be career limiting or even career ending. It will be of the utmost importance to a manager or other individual accused of racism to clear their name, particularly if their accuser has succeeded in generating press interest in the allegations, prior to their determination by an Employment Tribunal, as was the case here. Press attended throughout the hearing. In his letter before action dated 24th April 2022 the Claimant stated, ‘Considerable press attention will no doubt be attracted by these proceedings, which will of course be in open court, and I will do my best to ensure that widespread press attention is drawn to them.’ [OB727].

[71]We consider that determining and making findings on credibility is important in this case. We do so as follows: 71.1. We were concerned about the way in which the Claimant has put his case. In the Claimant’s witness statement he focused on the 1st Respondent’s statement, in its advert for the DHCJ position that ‘the Commission encourages diversity and welcomes applications from groups currently underrepresented in the judiciary’ [AG44]. The Claimant could have described that as an aspiration only, that the 1st Respondent had failed to achieve. Instead he described it as a lie [AG44]. He asserted the 1st Respondent only welcomed applications from those with substantial experience of advocacy in the higher Courts who knew High Court Judges well. The Claimant asserts, by calling it a lie, that the 1st Respondent knew that the statement in its advert was untrue. The Claimant was seeking to put credibility at the heart of his case. During his oral evidence in cross examination he admitted that the statement was misleading. He explained that had meant to say ‘the 1st Respondent pre-dominantly only welcomed applications from those with substantial experience of advocacy in the higher Courts who knew High Court Judges well’ and that not adding ‘pre-dominantly’ had been a slip. We reject that explanation because its inclusion would have undermined the assertion that the 1st Respondent had lied in its advert. We think the original statement was an overstatement that the Claimant intended to make, albeit one that he withdrew from under cross examination. 71.2. The Claimant 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. We started hearing evidence on the morning of day 2. Mr Cooper’s second question invited the Claimant to acknowledge that a DHCJ role was a senior judicial position. The Claimant replied ‘Yes, only a moron would not understand that’. I intervened to tell the Claimant that I expected everybody in the case, himself included, to behave in an appropriate way, displaying the decorum that the determination of such serious issues required. The Claimant apologised and reminded me that as a litigant in person his emotions ran high. We accept that the Claimant is emotionally invested in his case and that it is of the utmost importance to him. The Claimant is of course a litigant in person, but he is not typical of the litigants in person that regularly appear before Tribunals. He is a Solicitor, who qualified on 1st April 1985, with 38 years post qualification experience who had been assessed by the 1st Respondent as selectable for the role of 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. 71.3. Whilst cross words might be spoken in the heat of the moment during cross examination, a witness statement is different. A witness generally has months to prepare it, and once prepared, can read and reread and edit and amend as much and for as long as they wish. Words used in a witness statement are not said in heat of the moment. They are considered and chosen by the witness to be the way in which they wish to present their evidence. In his witness statement, intended to be a factual account of what had occurred, the Claimant chose to put his case in the following way: 71.4. Describing Yvette Long as ‘a ditherer, out of her depth and probably overawed by the fact that Sir Martin was a High Court Judge’ [AG19]. No evidential basis was provided for this characterisation; 71.5. The Claimant’s application was name blind. By the time his application had been received by the sift panel his name had been removed and replaced with the number ‘JAC00086-hdy0204’ [OB648]. To progress a direct race discrimination it was going to be necessary for the Claimant to establish that the sift panel members had worked out that he was a ‘person of colour, Indian national’. He sought to do that in Tribunal by advancing a proposition that his competencies demonstrated such strong examples of tackling racism that only a person of colour would undertake them, and that accordingly the sift panel worked out his race from the examples he had given. This proposition troubled us. If anything it revealed the Claimant’s own racial bias that a white candidate would not seek to tackle racism or tackle it as strongly as he did. There was no reference to his name or any other matter which indicated his ethnicity. Yet the Claimant chose to describe anyone who had read his competency examples and had no idea that he was not white that they ‘may as well believe that the moon is made of green cheese’ [AG53]; 71.6. He continued to make the point again in an unnecessarily insulting way, stating ‘I set out 2 of the 3 examples I gave of how I had opposed unlawful discrimination and it was from those examples that anyone with even a modicum of intelligence would have concluded that I was very likely to be a person of colour’ [AG55]; 71.7. As we have just stated, a cornerstone of the Claimant direct discrimination claim was the assertion that the panel would have determined that he was not white because he had given examples of fighting racism. We considered this argument 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 the Claimant’s own racial bias undermined his claims. He repeatedly referred to Mr Chamberlain’s world as being a ‘white little cloistered world’ [AG124] and [CB848] and to a lesser extent [OB696, 697, 703] and [AG76, 99]. 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. 71.8. Asserting that ‘the Respondents did not want an Asian or Black person on the High Court bench who would not be their Negro. … That was not something Sir Martin could stomach, and he knew full well that I was most unlikely to be white’ [AG53]. There was no evidence put before us to support that offensive attribution to the 2nd Respondent and we reject it. Such an assertion, unsupported by anything other than the ‘C’ ‘selectable’ grade awarded to the Claimant by the 2nd Respondent undermines the Claimant's credibility. 71.9. Asserting that, ‘in the the challenging words of Malcolm X he [Martin Chamberlain] did not want a field nigger or, to paraphrase James Baldwin, a person of colour who was not his n*****’ (our redaction) [AG157]. This extremely offensive thinking, that the Claimant was attributing to the 2nd Respondent, in an openly available witness statement was, in our opinion, intended to be highly damaging to the 2nd Respondent. The assertion that the 2nd Respondent had that thought process was unsupported by any evidence, and was wholly unfounded. It was not even put to Mr Chamberlain in cross examination. There was no evidential basis for it all and we reject it. It was contradicted by the available evidence. 4 of the 9 candidates that Mr Chamberlain recognised from their applications were non-white [MC31]. The success rate for Asian candidates was higher for Sift Panel 1 that it was for white candidates and the Claimant’s examples of fighting racism were marked up by Mr Chamberlain as good competency examples [OB631 & 636]. The inclusion in the Claimant’s witness statement of such an offensive thought process as a description of Mr Chamberlain’s thinking, was unfounded, intended to shock and, it was, in our opinion, unreasonable for the Claimant to have included it. 71.10. The Claimant described Mr Chamberlain’s reaction to his fighting racism competency examples in the following terms: ‘They were far too extreme for his liking. He knew full well that a white person was unlikely to have given such examples and to have risked their livelihood to fight racial discrimination’ [AG64]. He had no evidential basis for that observation at all. 71.11. One of his competency examples related to reporting Southwark Council to the Commission for Racial Equality. The example given stated ‘when a solicitor at Southwark Council I reported the Council's housing allocation practises to the Commission for Racial Equality as it discriminated against BAME people. The CRE formally investigated and served a non-discrimination notice on the Council, which altered its practises.’ In his witness statement (which was not before the sift panel when it determined the Claimant’s application) he provided more detail, stating ‘That example showed that I put my livelihood, my job and career on the line. Indeed, it ruined my career for many years in order to stop my employer unlawfully discriminating against tens of thousands of people on the grounds of their race …. I risked the destruction my professional career and the loss of my livelihood in order to achieve that for them’ [AG58]. In cross examination the Claimant went further and said that he had lost his job because of the CRE referral. The Claimant invited us to conclude that Martin Chamberlain should have inferred that the negative consequences identified in the witness statement would have been obvious to him at the time of the sift, stating that anyone who did not reach that conclusion ‘must be a complete dolt’. There is no basis for making the inference that ‘a white person was unlikely to have given such examples and to have risked their livelihood to fight racial discrimination’ and we reject it. The Claimant has expanded the detail of his ‘fighting racism’ competency examples in his witness evidence and then invited us to use to attribute that expanded knowledge to Mr Chamberlain during the sifting exercise. There is no basis upon which we could do that. 71.12. In another competency example the Claimant explained how he had given a dissenting judgment on a Solicitors’ Disciplinary Tribunal in a sexual harassment hearing [OB654]. He asserted that it demonstrated that he understood the nature of sexism and the importance of treating women fairly, before concluding that ‘if Sir Martin really could not see that he must have been sexist himself, or an ass (or both) but since he is a High Court judge, it is unlikely that he is asinine’ [AG68]. 71.13. In another competency example the Claimant sought to demonstrate his legal and judicial skills by referring to an occasion when he quickly mastered private international law [OB653]. He said, ‘It is indicative of some Martin's own ignorance, lack of breath of knowledge and experience that he seems not to have understood this … .’ [AG99]. 71.14. The Claimant’s observations regarding the assessment Mr Chamberlain made of his Independent Assessors was expressed as ‘his dismissal of my independent assessors, even though it is doubtless the result of his own ignorance and lack of experience of legal practise outside his little cloistered world of the bar, is offensive’ [AG99]. 71.15. The Claimant continued by stating, ‘a competent lawyer would have paid attention to detail as a matter of habit, but not, apparently, Sir Martin’ [AG100].

[72]We understand it is not easy to set out a factual basis for asserting discrimination without offending the accused individual. That said we found the Claimant’s attack on Mr Chamberlain to be unnecessarily personal and inappropriate. We were concerned that this showed the extent that the Claimant was prepared to go in how he put his case, with attacks on Mr Chamberlain’s competence, ignorance and lack of experience, which we conclude were all unfounded. This was another indicator to us that the Claimant’s judgment had been undermined by the way he had chosen to put his case. The Respondent invited us to reach other conclusions on the Claimant’s credibility. Some examples were said to impinge on the Claimant’s integrity or honesty as a witness, whilst others simply reduced his credibility in so far as they evidenced an initial position that had not been thought through. Those points are as follows: 72.1. The Claimant categorised the 1st Respondent’s efforts to outreach to ethnic minorities as the Master of the Rolls ‘visiting infants in primary schools’. However, when this was tested he accepted that he could not dispute the 1st Respondent’s written statement as to its outreach efforts [OB1809-1811]. We also note that the Government’s 2023 Official Statistics for diversity of the Judiciary for the DHCJ competition that the Claimant applied in [OB1819] had higher percentage of ethnic minority applicants (at 24% of all applications) than were represented in the eligible pool for selection, namely solicitors or barristers with 7 years PQE (with ethnic minorities representing only 17% of that eligible pool) [OB1901]. This is some indication that the 1st Respondent’s outreach to ethnic minorities had achieved some measure of success. We didn’t think this point undermined the Claimant’s integrity, but we did conclude that it illustrated a willingness to make bold assertions without checking the evidential basis for them, and to that extent, it undermined his credibility. 72.2. The Claimant, in his supplementary statement at paragraph 14 stated [AG SuppWS 14]: ‘Mr Justice Chamberlain's lack of integrity, in marked contrast to the conduct of the Lady Chief Justice Susan Carr, then Vice Chair of the Judicial Appointments Commission, who recused herself from any involvement with my application because she had had dealings with me briefly’. 72.3. The Claimant made this point to contrast Mr Chamberlain’s decision to continue to assess 9 name blind applications where he had recognised the individuals from the competency examples that they had given, with the conduct of Lady Justice Susan Carr7, who, the Claimant asserted, had recused herself from considering the Claimant’s application ‘because she had had some dealings with him previously’. The same point was put to Mr Chamberlain in cross examination, that he should have recused himself from sifting the applicants he recognised, because Lady Justice Carr had recused herself because she had recognised the Claimant. The factual basis for this statement (as contained in the Claimant’s statement and in his question to Mr Chamberlain) was false. It emerged that Lady Justice Carr had not recused herself because she knew the Claimant and had had some dealings with him, but because, as she stated in her declaration of conflicts form, ‘I have interviewed him for panel membership of the Solicitors Disciplinary Tribunal. He has an ongoing complaint to the JCIO against me’ [CB579]8. We conclude that the assertions in the supplementary statement and in the question to Mr Chamberlain that the reason for the recusal was because Lady Justice Carr knew the Claimant was so misleading that they amounted to dishonest statements. He knew the actual reason for her recusal but had put his case on the basis of an entirely different, false, reason. 7 As she then was, now Lady Chief Justice Carr. 8 [CB] is a reference to the Closed Bundle 72.4. The position was compounded when the Claimant was taken to his own declaration of interest statement in his application form for the DHCJ position [OB1995]. He was required to state whether he knew any Commissioner and if ‘yes’ to provide details. He declared ‘Known to Dame Susan Car - I was a member of the shift panel in December 2021, in the selection of Solicitors Disciplinary Tribunal members and Dame Susan Carr oversaw the process’. He failed to declare that he had made a formal complaint about the Judge to the JCIO. During cross examination he explained that failure by stating that the complaint had been resolved by the time he submitted his application for the DHCJ post on 9th February 2022. We reject that answer. Lady Justice Carr’s declaration of interests and conflicts form is dated 9th March 2022 [CB579]. One month after the Claimant’s declaration the Judge describes the complaint as ‘ongoing’. We are driven to conclude that the Claimant misrepresented his case in his supplementary statement and in the way he cross examined Mr Chamberlain. Then it was revealed, on this application form, that he had failed to declare the full picture of his prior dealings with Lady Justice Carr. Both of these matters negatively impact on the Claimant’s credibility and integrity. 72.5. We are concerned about a further statement on the Claimant’s application form, which, we conclude, was so misleading that it further illustrated the Claimant’s willingness to mislead in order to achieve his goals. In order to demonstrate intellect within the ‘legal and judicial skills’ competency the Claimant stated [OB653]: ‘I have the same academic background as Lords Sumption and Bingham with first degrees in history and jurisprudence from Oxford University’. 72.6. The application form contained no other reference to the Claimant’s academics. We conclude that this sentence was intended to convey to the reader of the Claimant’s application for DHCJ role that he, like Lord Sumption and Lord Bingham, had first class degrees in history and jurisprudence from Oxford University. In fact it emerged that the Claimant’s degree classification was 2:1. In attempting to justify this under cross examination the Claimant stated ‘I did not get a first because I don’t have a white face. I don’t think the class of degree matters’. We judged this to be a deeply unimpressive response. We conclude that the Claimant intended the statement on his academic background in his DHJC application to mislead the Respondents. 72.7. As we have already mentioned, the Claimant defined any mixed race comparator as white and asserted they should be treated as white when their situation was contrast to his own. This would have had the effect of allowing the Claimant to rely on any successful mixed race candidate as joining the ranks of successful white candidates and thus skew the statistics in the Claimant’s favour, potentially in a misleading way. In the diversity monitoring forms, if ‘mixed race’ was ticked, a drop down menu of mixed race options including ‘White Asian’ was provided to Applicants to choose from (for example at [OB1404]). Candidate 238 elected to describe their ethnicity in that way, as ‘White Asian’ [CB388]. The Claimant persisted in asserting that such a candidate was white and should be treated as such and he asserted that at the Case Management Hearing both the Respondents and the Judge had accepted that position [OB404]. It is clear to us however that the Judge was recording the Claimant’s position and was not recording that it such a definition had been agreed. The statistics collated from the Claimant’s DHCJ competition defined (at note 8) ethnic minority as including Black, Asian, Mixed and other ethnic groups but excluding white ethnic minorities [OB1901]. 72.8. Ultimately, and on day 4 of the case, the Claimant applied to amend his comparator for the purposes of his direct discrimination claim from how he described it to Judge Brown ‘the selection process disadvantages black and brown candidates, including persons of colour of Indian national origin, and advantages white, including mixed race candidates’ [OB169] and how he described it to Judge Burns ‘the Claimant compares himself with hypothetical white, or white including mixed race comparator’ [OB404] to simply white candidates. The amendment was granted unopposed. Notwithstanding the potential for categorising successful mixed race candidates as white to mislead or skew the statistics, we do not conclude that this issue impacts on the Claimant’s integrity, but we do find that his confusion on his issue was self-serving and that, once again, it impacted on his judgment and credibility. 72.9. The Claimant showed a tendency to rely on any statistics that he believed assisted his claim, whilst dismissing the statistics for the actual competition into which he entered as ‘meaningless, rubbish, should be shredded, are propaganda’9. This impacted on the Claimant’s judgment and credibility. 72.10. The Claimant made assertions that at best, he had ‘spun’ in his own interest, or at worse, repeated assertions that he knew to be incorrect and knew could mislead a reader. The Claimant, in his reply to Mr Thompson (the 1st Respondent’s Head of Corporate Services) on 20th May 2022, sought to recite what Mr Thompson had told him as follows: ‘I note your response that you “cannot find any evidence of maladministration on behalf of the Judicial Appointments Commission in relation to your application” because “candidates applying for this exercise were expected to be” white’ [OB774]. This would be a remarkable response for Mr Thompson to have made, but it was not his response. He said in his email of the same date ‘I cannot find any evidence of maladministration on behalf of the Judicial Appointments Commission in relation to your application. This was a challenging competition and candidates applying for this exercise were expected to be of the highest calibre’ [OB768]. We are at a loss to understand how the Claimant could replace ‘highest calibre’ with ‘white’ when reciting his account of what Mr Thompson had said. It is an egregious example of misstatement. When taken to this misstatement in cross examination he said Mr Thompson had lied when he said ‘of the highest calibre’ as he meant ‘white’. The response was deeply unimpressive. The 9 Before lunch on Thursday 8th November 2023 Claimant quoted back to Mr Thompson what he had said, but edited it to give a completely false and damaging record of Mr Thompson’s response. 72.11. In his application the Claimant maintained 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’ [AG15 & 97]. The Claimant asserted that he should have been assessed as ‘strong’ or ‘outstanding’ under the competency of ‘mastering new areas of law quickly’. We find that this was in direct contradiction of his invitation to the panel (on Monday 13th November 2023) take his lack of expertise in employment law into account. We did find a juxtaposition between an assertion that he was outstanding at mastering new areas of law quickly, and for his lack of expertise in employment law to be taken into account at the final hearing, 1 year and 5 months after he had presented his claim. The Respondent invited us to conclude that the Claimant chose to present himself as both outstanding in mastering new areas of law, and inexperienced in employment law, when it suited him to do so. Whilst we see the force in this, we concluded that this did not impinge on the Claimant’s integrity, although it was a factor in assessing his credibility more generally, as the two submissions cannot be easily reconciled. 72.12. Whilst recognising that conducting Tribunal litigation can be stressful, we were struck by just how confrontational the Claimant was, both towards the Respondent’s Counsel and the Tribunal. During cross examination the Claimant would argue with Counsel rather than give his evidence. On one occasion the Claimant steadfastly refused to answer a question put to him on the grounds that he deemed it irrelevant. I intervened to say that the Tribunal would assess the relevance of a question and if an irrelevant question was asked we would either stop it or require Counsel to explain its relevance. In the event that we did not intervene to stop a question the Claimant should do his best to answer it and that his closing submissions was a better place to challenge the relevance of any question. The Claimant took a pen and paper and started to write on it, stating loudly to the room ‘Judge refuses to allow Claimant to challenge a question’. I told the Claimant that he could challenge the relevance of any question in his final submissions, but that it would assist the Tribunal if he did his best to answer questions put to him rather than attempt to engage in an argument as to whether he had to answer them at all. We found the Claimant difficult and his approach counter-productive. 72.13. Finally, we were struck by the Claimant’s admission towards the end of his cross examination that he had decided, at the point at which he applied for the DHCJ role, that he would present a claim of race discrimination against the Respondents in the event that he did not succeed to be a DHCJ. He decided to present a claim of race discrimination irrespective of the reasons for the assessment, and the evidence regarding it, and the success or failures of others. He told us ‘before I knew who else had applied, I intended that I would sue’. He had decided to present a race discrimination claim before he had established any basis for concluding that his race had played a part in his failure to be appointed. In light of the Claimant’s evidence of his intention to present a race claim if he failed in a competition that he had not yet begun, we find as a fact that the Claimant entered into the competition with an element of bad faith.

[73]In short, we have been driven to the conclusion that the Claimant is not a witness upon whom we could rely. 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. We heard no sustainable basis for doubting the honesty and integrity of any of the 1st Respondent’s witnesses.

[74]We shall turn now to the List of Issues [OB169] that require our determination. Direct Race Discrimination.

[75]The first issue for the Tribunal is: ‘In not being invited to a selection day, was the Claimant treated less favourably than a candidate who did not share his protected characteristic, being a person of colour of Indian national origin, whose circumstances were otherwise materially the same as his, would have been treated?’ This is a narrow point. We are not considering the application process generally. The detriment relied on is not being invited to the selection day.

[76]The Claimant was not invited to the selection day [OB693]. We find as a fact that the treatment relied on by the Claimant occurred. We also find that the rejection was an act of detriment.

[77]We have considered the next issue. Has the Claimant has shown facts from which the ET could conclude that the less favourable treatment was because of race? The Claimant compares himself with hypothetical white comparator. We conclude that this would have to be a white applicant who completed the Claimant’s application in exactly the same way, with the same answers and focus that he did. It will also be necessary to conclude that Sift Panel 1, consisting of Mr Chamberlain and Ms Long, were able to discern that the Claimant was a person of colour of Indian national origin, from his name blind application [OB648], and having made that determination, then treated him less favourably by only grading him a C6 ‘selectable’ overall grade.

[78]The Claimant relies on ‘not being selected for interview’ as his less favourable treatment, rather than his score of C6. We note that there is a causative step between being awarded a C6 grade overall and not being selected for interview. The score itself was not the reason for the Claimant’s rejection at the sift stage. The reason for the rejection was that when compared to the scores of the other candidates and the number of DHCJ vacancies, the Claimant’s C6 score fell short. On this point Mr McMurtrie told us [AM59]: ‘I should say that none of the sift panel would have known what the cut off point for being invited to a selection day was in terms of the score required. Indeed, no one can be sure of the cut-off point until all of the applications have been marked, For example applicants at the 83 ‘mark’ may have had A, B, C or D grades - We simply cannot know until they are all assessed, and that will depend on the strength of the candidates in any particular year. As it was in this exercise, those who scored 8 or more went through to the selection day and therefore the Claimant with the score of C6 did not do so’.

[79]This final part was outside of the control of Mr Chamberlain and Ms Long. The result had the potential to be different had either the quality of the other candidates been lower or the number of vacancies higher. That said, Mr Chamberlain’s evidence (which we accept) was that, whilst he did not know for sure, he recognised that a C6 score may not be good enough to progress.

[80]It is an essential feature of a direct discrimination claim that the alleged discriminator knows that the Claimant is (as he describes himself) ‘a person of colour (non-white) of Indian national origin and a British Citizen’ [AG9] and [OB30]10. There can be no direct discrimination where the alleged discriminator was not aware of the Claimant’s protected characteristic. The Claimant has failed to prove that Mr Chamberlain and Ms Long identified that the Claimant was a person of colour of Indian national origin. At its highest, the Claimant put his case in the following way: 80.1. ‘anyone who believes this denial by the Respondent that they had no idea I was not white, in spite of the strong examples of countering racism that I gave, may as well believe that the moon is made of green cheese’ [AG53]; and, 80.2. ‘I set out 2 of the 3 examples I gave of how I had opposed unlawful discrimination and it was from those examples that anyone with even a modicum of intelligence would have concluded that I was very likely to be a person of colour’ [AG55]. 10 Paragraph 9 of the Claimant’s Particulars of Claim [OB30] and of his witness statement [AG9].

[81]Over the course of the hearing the Claimant diluted this proposition, as 81.1. In cross examination the Claimant accepted ‘that those reading his form should have believed on the balance of probabilities that I was not white’; 81.2. This was further diluted when the Claimant put point the point to Mr Chamberlain in cross examination on the basis that it was ‘possible’ that he was Black or Asian; 81.3. Finally, in his final written submissions the Claimant had moved to a position which, we felt, was tantamount to abandoning the assertion that the sift panel had worked out his ethnicity. He said ‘my claim is that Mr Justice Chamberlain had an inkling that I was not white’ and ‘even if he thought there was a slim possibility I was not white …. that would be sufficient as a factual basis for my claim’11.

[82]We disagree with this last submission. Over the course of the case the Claimant moved 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. There is a possibility, never mind a slim one, that any applicant could be of any ethnicity. The Claimant is required to adduce facts from which we could conclude that Mr Chamberlain and Yvette Long had worked out that he was of Indian nationality and/or a person of colour and subjected him to less favourable treatment as a result. The Claimant’s application was name blind and we reject the proposition that the panel determined the Claimant’s ethnicity based on his competency examples of fighting racism. We do so because we considered the position to be flawed and of itself indicative of the Claimant’s own racial prejudice that a white candidate would not fight racism as vigorously as he had. The Claimant 11 Claimant’s corrected Final Submissions, paragraph 31. himself effectively abandoned it during the course of the hearing. We consider the reframing of this argument by the Claimant (as set out above) effectively removed an essential requirement in a direct race discrimination claim, namely that the alleged discriminators either knew or had deduced that he was ‘of Indian nationality and/or a person of colour’.

[83]Even if we were wrong about that, we have found as a fact (at paragraphs 39 to 44 above) that the Sift Panel 1, consisting of Mr Chamberlain and Ms Long scored the Claimant as a C6 in good faith, on his application, against the 1st Respondent’s published criteria. We found as a fact that the overall score of a C was a fair assessment of the competency examples that the Claimant provided. They were good enough for the Claimant to be deemed selectable as a DHCJ but fell short when set against the quality of other candidates and the number of rolls available. That assessment had nothing whatsoever to do with the Claimant’s race. With regard to the shifting burden of proof, we accept the Respondent’s submission that we can make positive findings of fact that there was no direct discrimination.

[84]If we are wrong on that however, we conclude that the Claimant has failed to shift the burden of proof, in accordance with s136 EqA. It is for the Claimant to prove facts from which we could conclude, in the absence of any other explanation, that his non-selection for interview was because of his race. He has not done that. Even if he had, the Respondents have shown that race was no part of the reason that the Respondents acted as they did.

[85]In the circumstances the Claimant’s claim of direct race discrimination fails and is dismissed. We turn now to the Claimant’s claim of indirect race discrimination. Indirect Discrimination Claim (s19 EqA)

[86]For the purpose of his indirect discrimination claim, the Claimant contends that the selection process disadvantages black and brown candidates, including persons of colour of Indian national origin, and advantages white, including mixed-race, candidates. We have concluded that this claim runs into difficulty at the very outset. Statistical information has been provided about this competition [OB1901 and para 48 above], however these statistics relate to the success of all candidates against the PCPs used by the Respondents, namely its published criteria for selection of legal and judicial skills, personal qualities and working efficiently.

[87]The Claimant’s indirect discrimination claim is not based on those criteria, indeed he accepted on many occasions in his evidence that the published criteria did not put him at any disadvantage at all. He invites us to conclude that Sift Panel 1, consisting of Mr Chamberlain and Ms Long took the decision to reject the 1st Respondent’s selection criteria and apply their own, potentially racist, criteria instead. Indeed the first indirect discrimination issue for us to determine is: Did the Respondents apply the following Provision, Criterion or Practice (‘PCP’) in the relevant selection process: namely giving preference to candidates who: 87.1.1. Were a barrister; 87.1.2. Were a KC; 87.1.3. Had substantial experience of advocacy and/or litigation in the higher courts; 87.1.4. Had significant judicial experience.

[88]We have no hesitation in concluding that the Respondents did not apply the PCP of being a barrister, KC, or having substantial higher court advocacy or judicial experience. We accept the evidence of both Mr Chamberlain and Ms Long that they scored the Claimant against the 1st Respondent’s published criteria, and not against the criteria relied on by the Claimant. Given the Claimant’s acceptance that the published criteria did not place him at a disadvantage, this finding is fatal to the Claimant’s pleaded indirect race discrimination claim.

[89]Mr Chamberlain’s score matrix, against the published criteria [OB664] record a C overall. Within each category of Legal and Judicial Skills, Personal Qualities and Working Efficiently each sub-criteria are set out, along with Mr Chamberlain’s comments for each section. His comments reveal a positive to reaction to the examples given by the Claimant to fighting discrimination, for example ‘Solicitors Disciplinary Tribunal adjournment example shows understanding of fair hearing principles’, ‘Resilience example is good. Shows ability to hold ground in face of strong opposition’, ‘Treating fairly examples show awareness of discriminatory practices and taking concrete action to address them’ and ‘Example re considering the equal merit provision shows thought about fair recruitment procedures. And again concrete action taken with a positive result.’ We have recorded within our findings of fact (at paragraph 44) those occasions when Mr Chamberlain observed that other criteria had not been demonstrated as well, or on some occasions not demonstrated at all. We conclude that Mr Chamberlain’s analysis of the published criteria and the Claimant’s examples of competency to be unimpeachable and a fair analysis of where the Claimant did well, and where he fell short.

[90]Ms Long’s score matrix [OB666] also awards the Claimant a C grade overall. Her score matrix shows her initial scoring, and then the agreed scoring after discussion with Mr Chamberlain. For Legal and Judicial Skills and Working Efficiently she graded the Claimant C/D and then moderates that up to a C in discussion with Mr Chamberlain. For Personal Qualities she graded the Claimant B/A and then moderated that down to a C. We accept her evidence of that moderation process [YL9-10]. Both herself and Mr Chamberlain were equals in the process and that on occasion she agreed to change her score and on others Mr Chamberlain agreed to change his. This worked in both directions. On the issue of whether Ms Long applied the criteria that the Claimant relies on to advance is indirect discrimination claim, she said: ‘I did not approach the assessment with a view or on the basis that barristers, QC's, those from Magic circle firms or advocates would make better candidates. I did not harbour any assumptions about one type of lawyer being better or more capable than another or simply took each example given in the application form at face value and assess the quality and relevance of the example against the framework.’ We accept that evidence.

[92]We also accept the Respondent’s submission that the Claimant, in advancing his indirect discrimination claim, has confused cause and effect. The Sift Panel did not give preference to KCs or those with substantial Higher Court or Judicial experience. This would have required a marking up of a candidate simply because they were a KC, etc, and regardless of the actual examples that they had used to demonstrate competency. This did not happen. We considered the applications of the other candidates, which was contained within a Closed Bundle. We have been directed not to include evidence from that Closed Bundle in our judgment if possible, or if not to set it out in a confidential and separate annex if necessary. We do not believe a separate annex is necessary, as we can conclude here that we were not able to identify any candidate who met the Claimant’s criteria (of being a KC etc) but whose competency examples taken on their own pointed to a lower score than that which they received.

[93]Returning to the cause and effect point, such individuals are likely to have already demonstrated their competency or to be in a good position to do so. Their selection for interview was not caused by being a KC or having substantial Higher Court or Judicial experience, but the effect of already having demonstrated those skills assisted them in their applications. Mr Chamberlain in his oral evidence on this point gave the example a skilled rugby player may well succeed in a contest for skilled football players because of their transferable skills. That is not to say that being a rugby player was a criteria for the football player role, or that rugby players were preferred, just that skills such as eye/ball co-ordination, speed, agility and fitness that a rugby player would have, are also likely to greatly assist in the football player competition. Turning back to the circumstances of this case, the competencies required of KCs [OB1980] are transferrable and similar. However, for the Claimant to succeed the Tribunal would need be satisfied that the Respondents treated the mere fact of being a KC (for example) as meriting additional credit. We do not accept that proposition.

[94]The Claimant invited us to uphold his indirect discrimination claim on the basis of the ‘intersectionality’ between race and other non-protected characteristics such as being a Solicitor, or not being a High Court Advocate. In terms, he asserts, it is hard for an Asian KC with judicial experience to progress, but it is even harder for a non-contentious Asian Solicitor to progress because, he argues, they also have the characteristic of being a solicitor and having a noncontentious practice. However, we are only concerned with the characteristic of the Claimant’s that the law protects, namely, his race.

[95]For the reasons already given, our findings so far on this part of the Claimant’s claim are sufficient to conclude that his indirect race discrimination claim must fail. For completeness, however, we have considered the rest of the indirect discrimination issues.

[96]The next issue is, if the Respondents had applied the PCP of(i) being a barrister;

(ii) a KC;

(iii) someone with substantial experience of advocacy and/or litigation in the higher courts; and

(iv) someone with significant judicial experience, did that put people who shared the Claimant’s characteristics at a substantial disadvantage, compared to people who did not?

[97]The Claimant has not provided the Tribunal with any evidence of Asian or non-white candidates being placed at substantial disadvantage by the PCPs that he contends were being applied. With have approached this exercise by looking at whether the Respondent’s actual PCPs, its published selection criteria, placed Asian or non-white candidates at substantial disadvantage. As we have already found as a fact, the available evidence does not support that proposition. On contrary it demonstrates that Asian and non-white candidates progressed to the interview stage in the same proportion that they represented of the eligible pool. The PCP did not place them at any disadvantage, let alone a substantial one.

[98]The Government’s 2023 statistics for the diversity of the Judiciary [OB1819] illustrate at [OB1822, 1840] that in all exercises during that period ethnic minority candidates made up 16% of the eligible pool and 16% of the recommended appointments. The report concludes ‘the two exercises where there was no drop off from application to recommendation were for High Court judge and the s9(4) Deputy High Court judge [1843]. As the evidence at [OB1901] demonstrates, in the current competition ethnic minority and mixed candidates made up 17% of the eligible pool (ie those that met the basic statutory criteria for appointment). Those candidates applied in a higher proportion than their representation in the eligible pool, as 24% of the applicants that applied were ethnic minority or mixed race. Once in the competition, there was hardly any drop off in representation between those that applied and those that were selected for interview, with the percentage of ethnic minority or mixed race remaining steady at 23%. Once selected for interview there was no drop off between that stage and those recommended for appointment, with the percentage of ethnic minority or mixed race remaining steady at 24%. In the circumstances we conclude that candidates who share the Claimant’s characteristic of being a person of colour, of Indian national origin, were not placed at a substantial disadvantage by either the Claimant’s contended PCPs or the PCPs that were actually applied, namely the 1st Respondent’s published criteria.

[99]We turn next to the November 2022 University of Manchester report ‘Racial Bias and the Bench’ [OB1553]. The Claimant places great reliance on this report. It’s Executive Summary section on judicial appointments said: ‘Appointments of Judges seems to depend very much on ethnicity. The Government's 2022 statistics state that the conversion rate from application to judicial appointment for Asian and Black candidates was estimated to be 37% and 75% lower, respectively than for successful white candidates. When intersectionality is taken into account the discrepancy is even more stark ethnic minority females.’

[100]There are three difficulties which combine to undermine the probative relevance of this report in support of the Claimant’s case. The first is that it has considered the period between 2019 and 2022. It does not include the competition that the Claimant entered. It cannot be fairly used as a statistical analysis of the Claimant’s competition. The second, is that it covers the entire judiciary, with appointments at all levels and all jurisdictions and as such is of limited value in assessing one stage, by one Sift Panel, in one competition. The third is that Manchester Report, if it has any evidential value at all, would have been based on the 1st Respondent’s published criteria, which the Claimant accepts did not place him at a disadvantage. It would not have (and could not) have been based on the PCPs relied on by the Claimant. We concluded that the report did not assist us in our analysis of this competition.

[101]We turn to the next question: Did the 1st Respondent’s PCPs place the Claimant at that disadvantage? The first point to make, already stated, is that the Claimant accepts that the Respondent’s published criteria did not place him at a disadvantage. In his evidence [AG47] the Claimant argued that the published criteria gave huge scope for subjectivity that enabled Mr Chamberlain to shortlist only those candidates that satisfied his own personal PCPs. We disagree with this assertion. The published criteria, contained a number of specific sub-criteria under each heading which required specific examples of competency. As we have already found as a fact (paragraphs 39 to 44 above) the Claimant was disadvantaged by his failure to provide adequate examples (or in some cases, any examples) of competency for every criteria set out in the published criteria. The Claimant failed to present evidence that he could have drawn upon on his application form in a sufficiently effective and persuasive way. He failed to show that he was, as an individual, put at the same disadvantage as the group.

[102]The final question is this: If the 1st Respondent applied the PCPs contended for by the Claimant, and if those PCPs put candidates sharing the Claimant’s characteristic and the Claimant at a substantial disadvantage, can the Respondents show that the PCP was a proportionate means of achieving a legitimate aim? We have already found as a fact (at paragraph 47 above) that the 1st Respondent’s published criteria had a legitimate aim and the application of that criteria was a proportionate means of achieving that aim. There was no PCP of the type relied on by the Claimant and as such we are not required to establish whether a PCP that was not applied could nonetheless be justified.

[103]In all of the circumstances, it is the Judgment of the Tribunal that: 103.1. The claim of direct race discrimination, contrary to s13 Equality Act 2010, is dismissed; 103.2. The claim of indirect race discrimination, contrary to s19 of the Equality Act 2010, is dismissed. 11th February 2024 Claim No. 2203773/2022 EMPLOYMENT TRIBUNALS Claimant Respondents Ashok Ghosh v Judicial Appointments Commission Martin Chamberlain Heard at: London Central On: 6th November 2023 (Housekeeping in person and reading in Chambers) 7th to 10th and 13th to 14th November 2023 (in person) 8th to 10th January 2024 (in Chambers) Before: Employment Judge Gidney, Mr Rob Baber Ms Zophie Darmas Appearances For the Claimant: Mr Ghosh For the Respondents: Mr Ben Cooper KC and Robert Moretto, Counsel RECONSIDERATION DECISION The Claimant’s application received by email on 21st March 2024 for reconsideration of the Judgment sent to the parties on 16th February 2024 is refused on the grounds that it was submitted outside of the 14 day time limit allowed by rule 71 of the Tribunal’s Rules of Procedure. Claim No. 2203773/2022 Claim No. 2203773/2022 EMPLOYMENT TRIBUNALS Claimant Respondents Ashok Ghosh v Judicial Appointments Commission Martin Chamberlain Heard at: London Central On: 6th November 2023 (Housekeeping in person and reading in Chambers) 7th to 10th and 13th to 14th November 2023 (in person) 8th to 10th January 2024 (in Chambers) Before: Employment Judge Gidney, Mr Rob Baber Ms Zophie Darmas Appearances For the Claimant: Mr Ghosh For the Respondents: Mr Ben Cooper KC and Robert Moretto, Counsel RECONSIDERATION DECISION The Claimant’s 2nd application for reconsideration of the Judgment sent to the parties on 18th March 2024 is refused on the grounds that it is misconceived. The Claimant’s 1st application for reconsideration was refused on the grounds that it had been submitted outside of the 14 day time limit. Claim No. 2203773/2022 In his 2nd application the Claimant invites the Tribunal to reconsider some of its findings of facts of its own motion. In considering it the Tribunal notes the objections raised by the Respondent in its email of 16th April 2024. The Claimant’s second application appears to be an improper attempt to circumnavigate the 14 day time limit. All of the findings of fact made by the Tribunal were reached after a careful consideration of all of the documentary and oral evidence that was before the Tribunal. The Tribunal does not, of its own motion, wish to reopen those findings of fact.