Ahmed v Governing Body of the University of Oxford

Assessors appointed under section 67(4) of the Race Relations Act 1976 must assist the judge broadly in evaluating evidence and deciding whether conduct was racially motivated. The judge remains the sole decision-maker.

Advice forming part of that evaluative process is not ordinarily disclosed before judgment. Disclosure is required where fairness demands a response, particularly if assessors introduce an unforeseen point or information akin to expert evidence. The judgment should show how their relevant experience was used. Serious disagreement must be recorded with the judge’s reasons.

In a discrimination claim, rejection of the respondent’s explanation does not compel a finding of racial motivation. The tribunal must assess all the evidence and decide the issue on the balance of probabilities.

A student brought county court proceedings against the University of Oxford and his tutor, alleging racial discrimination and victimisation. The judge, sitting with two assessors under section 67(4) of the Race Relations Act 1976, found that the tutor had treated the student less favourably than a white student in an Arabic examination. He nevertheless found that the treatment was not racially motivated and dismissed the claim.

The student appealed, seeking reversal or a rehearing. The principal issues were the proper role of statutory assessors, whether their advice had to be disclosed to the parties or recorded in the judgment, and whether the evidence compelled an inference of racial discrimination.

1. Appeal dismissed. Lord Justice Waller delivered the judgment of the court. The county court judge had been led into an unduly narrow understanding of the assessors’ proper function, but the Court of Appeal was satisfied that no miscarriage of justice had occurred and declined to order a retrial.

2. Assessors under section 67(4) of the Race Relations Act 1976 form a distinct category. They are not confined to supplying expert information about such matters as training, monitoring or equal-opportunities policies. Parliament intended them to use their experience of relations between racial groups to assist the judge in evaluating evidence, drawing factual inferences and determining whether racism played a part. Their participation in fact-finding does not make them decision-makers: the ultimate findings and decision remain those of the judge.

3. The assistance given during the evaluative and deliberative process is ordinarily confidential. There is no general duty to disclose it before final submissions. Disclosure is nevertheless required where an assessor raises a point which the parties did not have in mind and should be allowed to address, or supplies information akin to expert evidence.

4. The judgment must make apparent that the judge used the assessors’ assistance on issues concerning possible racism. Where their evaluation is accepted, it will ordinarily form part of the stated reasoning. If both assessors take one view on an important issue and the judge takes another, the judgment should record their view and explain the disagreement. If the assessors disagree with each other on an important issue, the judge may record both views and explain the preference adopted. Minor differences need not be exposed.

5. The judge had used the assessors appropriately during most of the trial, but restricted their involvement in preparing judgment after both parties’ counsel advanced an erroneous view of their role. Although any agreement limiting their role should have been formalised before the hearing, the parties’ effective common position was relevant when deciding whether justice required a retrial.

6. The rejection of a respondent’s asserted explanation for less favourable treatment does not logically compel a finding that the treatment was racially motivated. Applying the established guidance on circumstantial proof of discrimination, the tribunal must consider all primary facts and permissible inferences and reach its conclusion on the balance of probabilities. The county court judge gave detailed and compelling reasons, including the evidence of another Asian student, for finding no racial motivation.

1. Court of Appeal: By [2002] EWCA Civ 1907 , dismissed the appeal. Although the county court judge had adopted an unduly narrow understanding of the assessors’ role, no miscarriage of justice warranted a retrial.
2. Oxford County Court: His Honour Judge Playford QC, sitting with two assessors, dismissed the claims of racial discrimination and victimisation after a seven-day trial. No citation is stated in the judgment.