Exclusive: Supreme Court ruling opens way for legal action against Michael Gove and Liz Truss for racial discrimination and victimisation

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Liz Truss former Lord Chancellor Pic credit:BBC

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UPDATE: At a Press Gallery lunch in Parliament last week I raised the issue of the Supreme Court ruling and the potential case to be brought by three judges with David Lidington, the current Lord Chancellor and Justice Secretary.

He did not want to comment about the Supreme Court judgement or any pending legal action but he vigorously defended any of the judges from institutional racism. He said it would be against their ” oath of office” and  believed all of them would be  fair minded and ” in no way racist.” He did admit that the judiciary did not have enough judges from black and ethnic minorities and promised a ” mentoring programme” so more top barristers would come forward and become judges.

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 lthe prospect of 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. An article appears in this week’s Tribune magazine. the link is here.

The virtually unreported Supreme Court judgement last week, which involved interpreting an EU equality treatment directive, is seen by campaigners 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.  She had previously been assaulted and was then involved in an incident which led to her arrest. She claimed post traumatic distress syndrome following the assault had led her to act in this way.  The panel rejected her claim and she was dismissed immediately.  She appealed to an employment tribunal  saying she had been  subject to disability discrimination but it struck out her case because it ruled that the panel was exempt from the Equality Act.

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.

pete rherbert caseThe 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, 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; a district judge and an immigration judge, who plan to go public at a later date.

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Recorder Peter Herbert who is also chair of the Society of Black Lawyers. Pic Credit: Operation Black Vote

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.”

Lord Herman Ouseley, former Chair of the Commission for Racial Equality and the Chair of Kick It Out stated:

“There should be no hiding place in the form of judicial immunity for decision making bodies, decision makers and their processes enabling institutions to lawfully discriminate and not have these decisions challenged by those persons affected.
Too many attempts have already been made by the state to restrict access to and
therefore deny justice for individuals rightfully seeking to invoke the provisions of the
Equality Act 2010. No more denial of Justice”

Lee Jasper, former adviser to the Mayor of London on Equality, Chair of London Criminal Justice Consortium stated:

“The filing of an amicus brief indicates a renewed determination by British black organisations to embark on a focused legal strategy to achieve civil rights and equality. The notion of legal immunity from the Equality Act 2010 will now be the subject of intense legal examination. The black WPC at the centre of this case has been to hell at back at the hands of the Metropolitan Police, suffering the triple oppressions of race, gender and disability.”

“ Those involved in the suspension of Recorder Peter Herbert can now be exposed as exercising institutional white privilege,   as they had been given cover by the
Government relying on the misguided concept of judicial immunity to give licence
to institutional racism. ”

The decision  by the Supreme Court will have enormous ramifications for disciplinary panels. But there is also  extraordinary irony as well. This case could be appealed by the Metropolitan Police or the Ministry of Justice to the European Court of Justice.

But given the entire  stance being taken at the Brexit negotiations where the ECJ is a red line for ministers – it is the one thing that the government can’t do.

Meanwhile the Equality and Human Rights Commission has indicated it wants to make sure the government doesn’t sneakily change the law once we have left the EU.

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.”

A summary of the Supreme Court judgement is here.

Equality Commission facing waves of strikes from disgruntled staff

striking Commisison staff in Scotland

Striking Commission staff on Scotland. Pic credit : Commons Space

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The long running bitter dispute between the management and the staff of the Equality and Human Rights Commission has spilled over into a wave of strikes which will run until the day after polling day.

Rolling strikes began in Glasgow this week and will continue in London, Cardiff and Manchester following the sacking of many disabled and black and ethnic minority staff – some by email. One of the worst cases involved  57 year old Markus Caruana, a disabled former flute player in the Corps of Drums with the Grenadier Guards.

Markus Caruana was unfortunate enough to have been both at the Guildford pub bombings in 1974 and the Chelsea Barracks bombing in 1981 which seriously injured regimental bandsmen from the Irish Guards. He was fortunate enough to escape unscathed but later had a  serious disability.  He lost his 75 per cent of his hearing and got  an incurable muscle wasting disease called Marie-Tooth disease (CMT) which affects the nervous system that supports muscles, often weakening the legs and feet.

So ferocious has the sacking policy been  that there are now vacancies at the ECHR even though it has suffered enormous cuts since 2010. But the management have banned any of the sacked staff  from applying for a job.

According to the PCS Union The Commission’s expenditure report for April shows it has spent £90,876 on agency staff in April and £17,900 on recruitment costs. The spending on agency staff is a significant increase on previous months – £44,000 in January, £61,000 in February and £65,000 in March.

A Commission spokesperson, said: “We have greatly reduced our spend on contractors in recent years. Contractors are, however, used when we need certain technical skills and experience that are not available in the Commission. The recent increase has been due to one off costs and no long term rise in spending.”

Of the eight union members issued notices of compulsory redundancy, six are black or minority ethnic, five are disabled and seven are older workers. Four are union reps and one was a lead negotiator opposing the cuts. We are now pursuing legal action against the EHRC for victimisation of trade union representatives.

The management issued a defiant statement  on the existing strike action.

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Rebecca Hilsenrath: chief executive of the Equality and Human Rights Commission and leading the programme of staff cuts Pic credit: Douglas-Scott co.uk

Rebecca Hilsenrath, EHRC Chief Executive said: “The changes we are making will allow us to respond to the new challenges we face. I am proud of how well our staff have embraced this new way of working and our ambitious programme of work.

“We have made every attempt to end this dispute with the union and have offered them concessions at every stage of talks. We are now focused on delivering our business plan.  We are unclear as to their rationale for continuing action.”

PCS general secretary Mark Serwotka said: “Our members only take strike action as a last resort but management’s reluctance to adequately address their concerns have given them no choice.

“There are vacancies at the Commission and there is no reason why our members can’t have those jobs.

“The fact that the government has cut the Commission to a quarter of its original size demonstrates the Tories’ lack of commitment to equality and human rights issues.

“Further budget and staff cuts would leave the commission toothless at a time when more needs to be done to tackle hate crime and discrimination.”

What is extraordinary about this whole situation is that  the issues that the ECHR is supposed to represent – employment rights, equal pay, the rights of the disabled and  unfair discrimination against black and ethnic minority and gay workers – are all being undermined by their own attitudes to their staff.

If there are to be tribunal hearings – it will mean the reputation of the organisation will be damaged- and all these causes will suffer. This does not look like going away.

 

 

Racist and Cruel: The nasty world of the Equality and Human Rights Commission

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The body that is supposed to protect the rights of  ethic minorities, the disabled and women from discrimination and unequal pay is about to behave like some of the worst employers it likes to attack.

Faced with an edict for cuts from wealthy Cabinet minister Nicky Morgan (  a former corporate lawyer with  City  firm  Travers Smith whose partners earn £935,000 a year) millionaire chairman David Isaac  ( a partner in law firm Pinsent Masons) is about to sack some 30 of the lowest paid workers at the Equality and Human Rights Commission.

The decision borders in my view on being  racist and cruel since the very victims will, according to the unions who have access to the redundancy list, be black and/or disabled and have difficulty getting jobs elsewhere. I have written about it this week in Tribune magazine here.

The people administrating the cuts are all wealthy people – either on ” off pay roll ” contracts worth up to £900 a day so they can minimise the tax they pay to the government or highly paid executives like Rebecca Hilsenrath ( £105,000 a year as chief executive – a pay rise of £10,000 in the last year but £30,000 a year less than her male predecessor) after she moved from being chief legal officer for the EHRC. She lives I notice in an expensive part of Hertfordshire like me. She seems to have moved a long way from her commitments given in this interview with a recruitment magazine three years ago.

They will, of course, be totally unaffected by any cuts and will continue to live a very comfortable life. This will be a world away from the people they want to sack who  are already suffering from the cruel policies of this government.Employers will not want the bother of giving disabled people  a job if they can get a fit person to do it.

The policy also has a much wider effect since these people are the very  workers who take up nitty gritty case work that can bring justice for ordinary people who face discrimination on racial grounds,unequal pay,  sacked for being pregnant, or for being gay. In other words it is bad news for ordinary people trying to get justice ( the wealthy friends of the lawyer chairman  and chief executive can afford to employ a lawyer).

Two unions at the EHRC – Unite and the Public and Commercial Services union – are furious about the redundancies which are part of an overall cut of 20 per cent (may be 30 per cent)  being imposed by Nicky ­Morgan, Education Secretary and Minister for Women and Equalities.

In a letter to Maria Miller, chair of the Women’s and Equalities Select Committee, Unite national officer Siobhan Endean said the cuts would turn the EHRC into a “remote, inaccessible think tank.”

She added:  “It is difficult for us to see how the commission can implement a new operating model and fulfil its functions effectively on £16.8 million a year when the Government concluded in 2012 that it needed £30 million a year.”

Of course the Commission disagree . A spokesman said:

“While we do not comment on the detail of leaks, our business plan sets out our intention to develop and implement a new operating model this year which will ensure we have the right structure, people and processes in place to deliver our ambitious plans to tackle discrimination and promote equality of opportunity and human rights.

“We know already that we will need to make significant savings. It is important we involve staff as early as possible. Responsible leadership is about facing up to future challenges not ducking them. Our operating model can help us deliver more impact as well as help us manage difficult change.”

Nice sounding words but I don’t believe them. I think the EHRC is becoming part of the new nasty Britain. It will issue fine words but do nothing practical about the plight of people  because it won’t have the staff to do it. It is all part of turning the country into a place where the wealthy feel comfortable and the  rest have to scavenge to survive. The only added twist is that the well paid people at the top of this pyramid at the ECHR are being paid out of ordinary people’s taxes.