A solicitor who was unsuccessful in his application to sit as a deputy High Court judge has lost high-profile claims for racial discrimination he had brought against the Judicial Appointments Commission for England and Wales.
An employment tribunal in London said that Ashok Ghosh, a partner in banking and finance at Excello Law, was not a witness upon whom the tribunal could rely.
It added:
He had, on occasion, misstated matters so egregiously to amount to lies. On many other occasions, we think his desire to win led to his honesty and fairness being (in his mind) acceptable casualties of war. He advanced propositions which were simply not true.
The tribunal gave an example of what it described as his willingness to mislead. On his application for the part-time judicial post, Ghosh said:
I have the same academic background as Lords Sumption and Bingham with first degrees in history and jurisprudence from Oxford University.
The tribunal concluded that this was intended to convey the impression that he had been awarded first-class degrees. In fact, his degree was a 2:1.
In attempting to justify this under cross-examination, Ghosh said: “I did not get a first because I don’t have a white face. I don’t think the class of degree matters.”
The tribunal “judged this to be a deeply unimpressive response”.
Ghosh, who qualified as a solicitor in 1985, describes himself as a “person of colour (non-white) of Indian national origin and a British citizen”. The commission said it was struck by his admission, towards the end of his cross-examination, that
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.
In his application to the tribunal, Ghosh had maintained that “no other lawyer in England is likely to have had a greater breadth of experience than I had”. He said he should have been assessed by the commission as “strong” or “outstanding” at “mastering new areas of law quickly”. And yet he had asked the tribunal, where he appeared in person, to “take his lack of expertise in employment law into account”. This was 17 months after he had lodged his claim. The commission said “this did not impinge on the claimant’s integrity although it was a factor in assessing his credibility more generally”.
Ghosh, who also chairs panels at the Solicitors Disciplinary Tribunal, had “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,” the tribunal said. “His decision to pursue his claim in such an unnecessarily aggressive way contradicted his status as a senior solicitor and demonstrated poor judgment.”
Ghosh had attributed “extremely offensive thinking” to Sir Martin Chamberlain, a High Court judge who was a member of the panel that sifted applications for this judicial appointment.1
No evidence was provided for his claims about Chamberlain or for his comments about Yvette Long, a human resources consultant who was the other member of the sift panel. In fact, Chamberlain and Long concluded that Ghosh was appointable — although his score was too low for him to progress to the interview stage.
The tribunal pointed out that Chamberlain and Long were never told his name. It explained:
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… 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 [by saying] that they “may as well believe that the moon is made of green cheese”.
Employment Judge Gidney, sitting with Rob Baber and Zophie Darmas, dismissed Ghosh’s claims of direct race discrimination and indirect race discrimination in a written ruling of 52 pages. Claims brought personally against the appointments commission’s former chair Lord Kakkar and the former vice-chair, now Baroness Carr, had been dismissed at an earlier hearing.
Response
Noting that Ghosh’s allegations had attracted media coverage, a spokesperson for the commission said:
The Judicial Appointments Commission is strongly committed to diversity and wants to see a judiciary that is better reflective of diversity in society. We work hard to encourage people to consider an application for judicial office, whatever their personal or professional characteristics.
We welcome the tribunal judgment which dismissed Mr Ghosh’s claim of direct or indirect race discrimination. It sends an important message that our processes are fair and rigorous and about the integrity of those involved in Judicial Appointments Commission selection activity.
Ghosh was approached for comment. The ruling was sent to the parties last Friday but has not yet been published online.
Update 1pm: asked by the Law Society Gazette about the possibility of an appeal, Ghosh said he was seeking legal advice.
The tribunal members had great difficulty with Chamberlain’s title. In a footnote, they said it was “Mr Justice Sir Michael Chamberlain KC”, a formulation that contains three distinct errors.