David Cary v Commissioner of Police for the Metropolis Equality And Human Rights Commission

The Court of Appeal considered whether a county court judge was right to overrule an objection to the appointment of a single assessor in a sexual orientation discrimination claim under the Equality Act (Sexual Orientation) Regulations 2007 and the Equality Act 2010. The court held that assessors in discrimination cases must be persons of "skill and experience in the matter to which the proceedings relate" as required by section 63 of the County Courts Act 1984 as read with section 114(7) of the Equality Act 2010, but that this does not rigidly require a narrowly specialised expertise limited to the particular protected characteristic in every case.

The judge was entitled to conclude that the proposed assessor, a long-serving lay member of the Employment Tribunal with experience of discrimination and grievance matters and a background as an appeals manager, satisfied the statutory test on the facts before her. The court stressed that membership of the ET alone would not automatically qualify a person in every case, but that an assessor's relevant life and tribunal experience could meet the requirement of "skill and experience".

This was an appeal from a decision of the Central London County Court (Her Honour Judge May QC) in which the claimant, Mr David Cary, brought a discrimination claim under the Equality Act (Sexual Orientation) Regulations 2007 (EASOR) against the Commissioner of Police for the Metropolis alleging less favourable treatment in the investigation of a homophobic incident. The county court judge had directed that the trial be before a judge sitting with an assessor. At trial the claimant objected to the identity and qualifications of the appointed assessor, Ms Angela Bennett, on the ground that she lacked specific experience of same sex sexual orientation discrimination and that the Practice Direction to CPR Part 35 had not been complied with.

Nature of the claim: A county court claim for direct discrimination under EASOR arising from the handling of a police investigation.

Relief sought: Determination of the discrimination claim; the immediate procedural relief sought on appeal was the setting aside of the judge's ruling overruling the claimant's objection to the assessor.

Issues framed:

• Whether the Practice Direction to CPR Part 35 had been observed in notifying parties of the proposed assessor and her qualifications.
• Whether an assessor in a sexual orientation discrimination claim must have specific expertise in same sex sexual orientation discrimination rather than more general experience of discrimination matters.
• Whether the particular assessor, given her ET lay member experience and managerial background, was disqualified or unsuitable.

Court’s reasoning and decision: The Court of Appeal held that under the Equality Act 2010 (section 114(7)) a county court must generally appoint an assessor unless there are good reasons not to, and that the statutory criterion is "skill and experience in the matter to which the proceedings relate" rather than a separate requirement of narrowly specialised expertise for each protected characteristic. The court rejected a rule requiring assessors always to have narrowly focused experience of the particular characteristic in issue. It explained that in many discrimination cases the essential task is to evaluate whether the respondent would have acted differently in the absence of the protected characteristic, a function to which experienced lay adjudicators or tribunal members can contribute. On the facts the judge was entitled to conclude that Ms Bennett's experience (appeals manager, tribunal lay member with discrimination cases including some sexual orientation cases) met the statutory test and that she was not disqualified from acting. The court acknowledged procedural failings in notifying parties and urged better practice for early identification and notification of assessors, with particulars of qualifications and judicial involvement in selection.

The court therefore dismissed the appeal, while emphasising that appointment decisions remain fact-specific and that ET membership alone would not automatically qualify a candidate in every case.

Appeal dismissed. The Court of Appeal concluded that the statutory test for assessors in discrimination cases under the Equality Act 2010 is that an assessor must have "skill and experience in the matter to which the proceedings relate", but this does not rigidly require narrowly specialist experience of the particular protected characteristic in every case. On the material before the county court judge it was open to her to find that the proposed assessor, who had substantial ET lay member and managerial experience of discrimination and grievance matters including some sexual orientation cases, met that test. The procedural failures in notifying the parties were criticised and guidance given for future practice, but they did not render the appointment impermissible on these facts.

Appeal from the Central London County Court (Her Honour Judge May QC). The claim was issued 13 January 2010, case management directions given 3 August 2012, trial listed for September 2013; the county court judge overruled the claimant's objection to the assessor and the claimant appealed to the Court of Appeal (neutral citation: [2014] EWCA Civ 987).