The UK Ministry of Justice has been spared an embarrassing tribunal case in which a barrister employed at a London magistrates court alleged racial discrimination. Haras Ahmed, a magistrates court adviser, had come under suspicion because another more junior employee, who was also Asian, had been taking bribes. An employment tribunal found their “shared ethnicity” was part of the reason for the suspicion of Ahmed, which was unfounded.
A suggestion had also been made to senior management that Ahmed had links on his computer to “Muslim sites containing weapons”. They turned out to be pictures of clay pigeon shooting.
The Tribunal considered that Ahmed’s removal from Redbridge Magistrates Court arose from “pressure from senior management due to concern that the Claimant may be implicated in the Redbridge fraud” and hence was done unreasonably and in bad faith. HM Courts and Tribunals Service were in effect under an obligation to prove their conduct was not racially motivated, said the Tribunal.
However, an Employment Appeal Tribunal this week found the original Tribunal used the wrong test in its finding of direct racial discrimination and upheld a ruling that Ahmed’s case is out of time. It therefore will not go back for a rehearing.
Ahmed’s ordeal began after it was found a junior administrative officer, Munir Patel, had been taking bribes to arrange that speeding fines and penalty points would not be recorded. Patel was jailed for six years, the first to be sentenced under the 2010 Bribery Act. Patel had been reported by a journalist as saying he had done it for his “Asian brothers”.
Ahmed came under suspicion even though he had no link to Patel’s team. The suspicion originated purely from “his shared ethnicity with Mr Patel” in the mind of an investigator, said the Tribunal. An investigation found no evidence to connect him with Patel’s fraud but an IT department search threw up the “Muslim sites containing weapons” claim. A Deputy Justice’s Clerk looked into the matter and found that the “weapons” were clay pigeon guns for a stag weekend attended by Ahmed and friends. Nevertheless senior management wanted Ahmed disciplined or moved from Redbridge. Claims about inappropriate IT use continued to be made since the IT department itself did not click on the clay pigeon link to check their claim.
A suggestion was made that a failure to complete audit checks on files might constitute grounds for disciplinary action or justify a temporary move from Redbridge to East Group Magistrates, Stratford. Ahmed was moved and a message was sent to East Group management headed “Personal Protect. Absolutely not to be forwarded. Burn after reading” suggesting he be “coached and monitored”. As HH Judge David Richardson put it at the EAT, held in April: “The attention of senior management continued to rest upon the Claimant.” In 2012 Ahmed put in a formal grievance about his treatment and management instituted a disciplinary investigation into his IT use.
“It was found [by the grievance panel] that he had been subjected to unfair treatment in connection with the decision to move him out of Redbridge. He was to receive an apology. But his allegations of subsequent unfair treatment were rejected, and his allegations of race discrimination were also rejected.” No serious issues regarding IT use were found. Another investigation was under way on an unrelated matter (inappropriate remarks allegedly overheard by a member of staff). Ahmed resigned over the failure to wholly uphold his grievance and claimed unfair dismissal.
One Redbridge manager, Mr Ring, had raised concerns with superiors about the potentially discriminatory nature of Ahmed’s treatment. The original Tribunal noted: “Mr Ring was concerned about the lack of any apparent evidential link between the Claimant and the Patel fraud … Mr Ring warned his superiors that to move the Claimant from Redbridge without evidence might be found to be an act of discrimination. Mr Ring went even further on 1 February 2012 when he advised the Claimant that he referred to ‘racial profiling’ and referred [to] Ms [Pamela] Smith’s comment that ‘there is an Asian male’.” Smith was a member of the fraud investigation team and a former police officer. The original Tribunal said: “[Senior manager] Mr [Alan] Eccles’ mistaken suspicion was a result of Ms Smith’s failure properly to disclose the absence of evidence. We consider that this was due to her continued suspicion of the Claimant based, by then, purely on his shared ethnicity with Mr Patel.”
The Tribunal concluded: “Ms Smith, and by consequence senior managers, would not have continued to harbour the same, unfounded, suspicions about a hypothetical employee non-Asian comparator. Such a comparator would, we think, have been absolved of suspicion by 22 September 2011 and would not, therefore, have been required to move.”
James Purnell, for HMCTS (Ministry of Justice), argued at the appeal that a white comparator would not have been treated differently, that the move was not detrimental and hence not “less favourable treatment” than a white comparator would have received by staying in Redbridge. He said the Employment Tribunal had no basis for saying that Smith had failed properly to disclose the absence of evidence.
Crucially Purnell argued that the test used by the Tribunal was wrong since it had appeared to consider it was sufficient if race was “linked” or “related” to the decision. This argument Richardson found merit in. The original Tribunal found that Eccles took the decision to move Ahmed in the belief that there were still grounds for suspicion based on the initial evidence. The Tribunal had taken the view that it could not say “the Claimant’s race was entirely unrelated to the decision to move the Claimant”. This reverses the burden of proof – in line with the Equality Act, according to the Tribunal.
Section 136 of the Equality Act 2010 says “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” But the real question was whether the treatment is “in no sense whatsoever because of” race, said Richardson. “Thus, even when the reverse burden applies, the key question remains: what, consciously or unconsciously, was the reason of the discriminator? It is not sufficient if his decision is ‘in some way linked to or related to’ race if race was not – either consciously or unconsciously – a significant part of the reason.”
In other words, there might have been a background of discrimination (in Smith’s mind) and that may have led to the investigation that may have led to Ahmed’s move. But it would only be unlawful if the actual decision-maker was motivated by discrimination.
There had been no suggestion that Eccles, who had made the decision, took it on the basis of ethnicity. “If the Employment Tribunal had applied the correct legal test, Ms Smith’s failure would not have contributed to a finding against Mr Eccles on the burden of proof, because the Employment Tribunal’s primary finding of fact was that he did not know of Ms Smith’s failure.”
The case, in the normal course, would have been remitted to the Employment Tribunal for a rehearing – in effect to ask the correct question: Whether Eccles took the decision on the basis of race. However, Richardson accepted it was out of time and the three-month bar should not be lifted as requested by Ahmed.
The move to East Group took place on 17 October 2011. The first claim form was not presented until 30 November 2012, over ten months out of time. Richardson rejected the view that being made to work at East Group was a continuing act of discrimination – which would have extended the time for an application since it would be “conduct extending over a period”: Equality Act section 123(3). Nor were there “just and equitable” reasons for an extension. In general, Richardson noted: “Allegations of harassment and victimisation were rejected [by the Tribunal] on the facts – indeed most of the allegations of victimisation were not pursued.”
The EAT transcript can be found on Bailii here: Ahmed v Ministry of Justice 2015
Also of interest
Leveson anger over lawyer’s asylum case “shambles” (includes discussion of “Hamid hearings”;
and MoJ’s long legal battle over “bullying” Court of Appeal Master
Employment Tribunal finding on suspicions against Ahmed
Para 78: By 22 September 2011, Ms Smith knew that there was no evidence linking the Claimant to the Patel fraud, nevertheless, she remained suspicious of the Claimant. We conclude that the shared ethnicity between the Claimant and Mr Patel was part of the reason why Ms Smith still harboured suspicions despite the lack of evidence to support them. Contemporaneous e-mails from those more senior to her, such as Mr Eccles, suggest that they were not fully informed that initial concerns had been resolved in the Claimant’s favour before Ms Smith returned from holiday on 5 October 2011. This caused senior managers such as Mr Eccles to retain a lingering, but entirely unfounded, suspicion that the Claimant may be involved and may tamper with evidence [regarding Patel] if not moved.”
Para 80: … We consider that Ms Smith’s conduct in failing to absolve the Claimant before her holiday caused Mr Spooner, Mr Gillespie and Mr Ellis to continue to suspect the Claimant. This shared suspicion was also, to some extent, influenced by the shared ethnicity point. We consider that this much is clear from Mr Ring’s comments. For that reason, we cannot say that the Claimant’s race was entirely unrelated to the decision to move the Claimant and we find that the Respondent has failed to discharge the burden of proof.”