Tribunal Judge loses case of race discrimination against fellow Judges

Employment Judge Snelson has handed down judgment in Kumrai v Ministry of Justice and others, an unusual case involving serious allegations of race discrimination by members of the senior judiciary in which the Claimant and all three Respondent witnesses were serving Tribunal Judges. The Claimant, a Judge of the First-Tier Tribunal, sued both the Regional Judge and President of the relevant chamber together with the Ministry of Justice, for direct race discrimination, harassment and victimisation.

The Ministry of Justice had received a complaint about the Claimant from a vulnerable Tribunal user about the manner in which their hearing had been conducted. Specifically, it was alleged that the Tribunal user had been asked the same questions over and over again about her medical condition, which had caused much embarrassment. The complaint was largely corroborated by an account provided by the Claimant’s fellow Tribunal member, who queried the necessity of the Claimant’s questioning and confirmed the Tribunal user had burst into tears.

The investigation of the complaint against the Claimant was governed by the detailed provisions of the Judicial Conduct (Tribunal) Rules 2014. In a schedule of allegations, the Claimant made numerous complaints about the way in which his investigation was handled under the rules by both the Regional Judge and President. It was alleged the investigation was tainted by unconscious bias on racial grounds.

In a detailed and lengthy judgment, Employment Judge Snelson rejected each of the Claimant’s complains. It was noted that the Respondent admitted to various defects in the process of handing the complaint and that the Claimant was offended and upset by what he regarded as wrongful and unjust behaviour towards him. However, the Tribunal concluded that the harassment claims were “misplaced”. To hold that there had been harassment under s.26 of the Equality Act 2010 would, in this case, “be to cheapen and devalue the statutory language” of that section and the Claimant’s perception was unreasonable.

Of the long list of complaints of direct discrimination, the Tribunal found that there were some matters about the investigation which did give rise to arguable detriments. However, the Tribunal concluded that “stepping back and reviewing all the evidence before us we are unable to identify anything suggestive of any element of racial bias underlying the behaviour” of the Regional Judge or President. The Claimant’s case, the Tribunal concluded, embodied “the commonplace error, identified in Zafar v Glasgow City Council [1998] ICR 120 and many other authorities, of equating unreasonableness with discrimination”. The Tribunal concluded that the Regional Judge and President would have proceed as they did here in any other case.

The Tribunal went further and commented that “the core logic of Mr Kumrai’s case on discrimination does not withstand scrutiny” and the central thesis that the Regional Judge had intended to punish the Claimant was belied by the facts found. The Tribunal was satisfied that this was “not a story of a zealous pursuit of disciplinary action…quite the contrary”. Rather, what shined through the correspondence was a desire, on the part of the Regional Judge, to “find a means, through informal measures of advice and support, to engender in [the Claimant] improved self-awareness and greater skill and empathy in dealing with vulnerable litigants”. The Tribunal also concluded that the victimisation complaint, based on the sending of a very long letter of complaint sent by the Claimant’s former solicitors’, Bindmans, was not well founded. There was “no possible basis for supposing that receipt of the Bidmans letter influenced in any way [the President’s] consistent and unremarkable decision to uphold the complaint”. All claims were therefore dismissed.

Tom Kirk, instructed by the Government Legal Department, represented the successful Respondents at trial. A full copy of the judgment can be read here.

 

14th January 2020