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The Employment Appeal Tribunal (EAT) has given permission for barrister Aisha Bijlani to pursue a racial and disability discrimination claim against four named individuals at her chambers, 4 New Square (4NS).
In March last year the Employment Tribunal told Bijlani that none of her 16 claims against former head of chambers Roger Stewart QC, Justin Fenwick QC, John Powell QC and senior clerk Lizzie Wiseman, were successful (3 March 2010).
Originally, the barrister claimed losses of £33m, £7.6m of which was for past loss of earnings and £26m for potential future loss of earnings (15 March 2010).
Her 16 claims included allegations that clerks failed to collect fees on Bijlani’s behalf and that management did not investigate her complaints of a racist culture in chambers. She alleged that there was a failure by chambers management to “prevent, abate, or condemn” the alleged racist conduct of three clerks.
According to the Employment Tribunal judgment Bijlani outlined several occurrences that, she claimed, taken together demonstrated a culture of racism in the clerks’ room.
However, the Tribunal found that the set had sufficiently dealt with matters and that they had had no discriminatory effect on the claimant.
Following the Tribunal ruling Bijlani’s lawyers lodged an application for permission to appeal, which was turned down in April last year (19 April 2010).
Bijlani renewed her application at an oral hearing in May. At the hearing of counsel Patrick Green of the Bar Pro Bono Unit made representations to the court on Bijlani’s behalf. According to the EAT ruling Green argued that the Tribunal was wrong to consider each of Bijlani’s claims in silo and should have looked at her allegations in their entirety.
Mr Justice Langstaff rejected the argument but did find credibility in arguments regarding how chambers management dealt with clerks.
“The question in essence was why it was that one or other or all of the clerks was not dismissed or more seriously disciplined than they were,” Mr Justice Langstaff said in his EAT ruling.
According to the Tribunal ruling, said Langstaff J, chambers’ management were motivated “in part” to make sure any investigations into the behaviour of the clerks would not have a detrimental effect on chambers.
“In short,” adds Langstaff, “the clerks were too good at their job to be lost to chambers” and any decision not to dismiss them was based on commercial interests rather than being based on race.
Nevertheless, the judge said the words “in part” would suggest there were considerations other than commercial interests taken when deciding against the dismissal of the clerks.
Green argued that by not taking steps to dismiss the clerks chambers had harboured and tolerated a racist clerking room.
Allowing the appeal Langstaff J concluded: “If that’s the proper interpretation of it, then it’s arguable that the reputational aspects of chambers […] may have a link with race; and it’s arguable, perhaps, that the conclusion which the Tribunal came to […] was not one which the Tribunal might have been entitled to come to had it appreciated, as it ought to have done on this argument, that part of the reasoning had regard to issues of race.”
Bijlani instructed Althea Brown of Doughty Street Chambers to act for her in the Employment Tribunal and on the written application for permission to appeal. Bijlani instructed Patrick Green of Henderson Chambers on the oral application for permission to appeal in the EAT
At the Employment Tribunal 4NS was represented by Littleton Chambers’ John Bowers QC. At the EAT it instructed DWF head of employment Nathan Donaldson.