The employment tribunal has dismissed race discrimination claims brought against the Judicial Appointments Commission by a solicitor who unsuccessfully applied to become a deputy High Court judge. Ashok Ghosh has told the Gazette he is seeking advice on a potential appeal.
Ghosh, who is a Solicitors Disciplinary Tribunal chair, sued the commission for direct and indirect race discrimination arising out of a deputy High Court judge recruitment exercise conducted in 2022. The JAC and Martin Chamberlain, a High Court judge who assessed Ghosh’s application, were named as respondents. The case was heard last November.
In a 52-page ruling handed down last week, the tribunal dismissed the claims.
On Ghosh’s credibility, the tribunal said: ‘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.’
The tribunal ‘was driven to the conclusion that the claimant is not a witness upon whom we could rely’ and ‘heard no sustainable basis for doubting the honesty and integrity of any of the [JAC’s] witnesses’.
On the direct discrimination claim, the tribunal said Ghosh failed to prove that Chamberlain and a non-legal sift panel member had identified him as a person of colour of Indian national origin. The sift panel scored him ‘in good faith’ against the JAC’s published criteria.
Ghosh did not prove facts from which the tribunal could conclude his non-selection for interview was because of his race. ‘Even if he had, the respondents have shown that race was no part of the reason that the respondents acted as they did,’ the tribunal said.
On the indirect discrimination claim, the tribunal said the respondents did not apply the provision, criterion or practice (PCP) of being a barrister, KC or having substantial higher court advocacy or judicial experience. Chamberlain’s analysis of the published criteria and Ghosh’s examples of competency were ‘unimpeachable and a fair analysis of where the claimant did well, and where he fell short’.
Ghosh invited the tribunal to uphold his indirect discrimination claim on the basis of 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 non-contentious practice. However, we are only concerned with the characteristic of the claimant’s that the law protects, namely, his race,’ the tribunal said.
Ghosh told the Gazette he is seeking legal advice on whether he should appeal the judgment.
The tribunal hearing took place last November. Ghosh represented himself. The JAC and Chamberlain were represented by Ben Cooper KC and Robert Moretto.
