Supreme Court removes discrimination ‘immunity’

Written By: David Hencke
Published: November 4, 2017 Last modified: November 4, 2017

Michael Gove and Liz Truss, two former Lord Chancellors, the former lord chief justice, Lord Thomas, six High Court judges and heads of the tribunal services are facing legal action for victimisation and racial discrimin­ation by three fellow black and Asian judges and a black former tribunal member following a ground breaking ruling by the Supreme Court.

The virtually unreported Supreme Court judgement last week, which involved interpreting an EU equality treatment directive, is seen as removing immunity claimed by the Ministry of Justice, the Metropolitan Police, magist­rates and tribunal bodies, barristers, solicitors, doctors and dentists’ disci­plinary bodies, from the Equality Act when handling misconduct inquiries.

It will also apply to disciplinary hearings involving sexual and gender discrimination and disabled people.

The original case was brought by a disabled black woman police officer, known as Ms P against the Metropolitan Police. She claimed discrimination because of her disability during a disciplinary and misconduct hearing. The panel said it was exempt from the Equality Act and she could not take her case to an employment tribunal even though she had been dismissed immediately.

Her case was turned down by the lower courts but they have now been overruled by the Supreme Court. At the hearing her case was joined by four black and ethnic minority organisations – Operation Black Vote, Black Activists Rising Against the Cuts (BARAC UK) the Society of Black Lawyers, and The Association of Muslim Lawyers – who asked for a ruling on civil law in this case.

The Equality and Human Rights Commission has also welcomed the judgement. EHRC Chief Executive Rebecca Hilsenrath said: “This case goes to highlight the importance of EU law in protecting fundamental rights. This is why we are pressing for amendments to the Withdrawal Bill to protect our rights under the Brexit process.”

The ruling has had an immediate impact on four other cases involving racial discrimination and victimisation brought by three judges and a tribunal member that had been stayed at employment tribunals because the Ministry of Justice said it had immunity under the Equality Act.

These involve cases bought by Peter Herbert (pictured), a recorder and part time immigration and employment judge and chair of the Society of Black Lawyers; Daniel Bekwe, of African descent, a former member of Croydon Employment tribunal; and a district judge and an immigration judge, who plan to go public at a later date.

Mr Herbert said: “We met last night and decided that our solicitor will write to the Employment Tribunal asking for the stay to be lifted and the hearing re-opened following the supreme court’s judgement. We hope to get a hearing in December.”

Dianne Abbott, the shadow home secretary, is planning to raise questions with ministers on the judgement.

Groups were jubilant following the ruling. BARAC said: “Today’s important ruling we believe, means that Judges, Magistrates, lay tribunal members, barristers, solicitors, doctors, dentists, nurses and other professionals and office holders cannot be prevented from enjoying the full protection of the Equality Act 2010. We are writing to the MoJ and the Government to ask them to clarify all those professions where this ruling will apply.”

About David Hencke

David Hencke is Tribune’s Westminster Correspondent