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

Assessor suitability is determined case by case. The relevant question is whether the proposed assessor has skill and experience in the matter to which the proceedings relate. The law does not impose a rigid requirement for expertise in the particular protected characteristic, although specialised expertise may be necessary for specialised issues. Employment Tribunal membership alone is not conclusive, but the individual’s relevant experience may qualify that person. In claims under the Equality Act 2010, assessors must be appointed unless there is good reason not to do so. Courts should address the need, scope, identity and suitability of assessors early and provide the prescribed notice and qualification details.

Mr Cary brought a sexual orientation discrimination claim under the Equality Act (Sexual Orientation) Regulations 2007 against the Commissioner. The claim concerned the handling of his complaints to the Metropolitan Police. The Central London County Court directed that the trial be heard by a judge with an assessor. Her Honour Judge May QC overruled Mr Cary’s objection to Ms Angela Bennett, based principally on her experience as an Employment Tribunal lay member and in handling discrimination and grievance matters.

Mr Cary appealed, arguing that an assessor in a same-sex sexual orientation case required specific expertise in that form of discrimination. The Equality and Human Rights Commission intervened. The central issue was the meaning of skill and experience in the matter to which the proceedings related.

1. The appeal was dismissed. The Court of Appeal upheld the decision that Ms Bennett was not disqualified from acting as assessor. Lord Justice Christopher Clarke gave the judgment, with which Lady Justice Arden and Mr Justice Barling agreed.
2. The statutory framework did not require an assessor in every discrimination case to possess expertise specific to the protected characteristic in issue. The former race-discrimination provisions imposed a special knowledge and experience condition, but Parliament did not reproduce that condition in the current harmonised framework. Under section 63(1) of the County Courts Act 1984, the question is whether the proposed assessor has skill and experience in the matter to which the proceedings relate. Section 114(7) of the Equality Act 2010 makes appointment mandatory in claims within that provision unless there are good reasons not to do so. [22]-[26], [46]
3. Suitability requires a case-specific assessment. The court must identify the matter on which assistance is required and then consider the candidate’s actual experience. Specialised expertise may be needed for specialised issues, such as the assessment of adjustments for a particular disability or understanding a particular religious belief. It is not, however, a universal requirement. The observations in Ahmed v Governing Body of the University of Oxford and Another [2002] EWCA Civ 1907 were confined to the statutory context of the former race-discrimination assessor regime. [47]-[51]
4. Experience in handling discrimination complaints, disciplinary appeals, grievances and tribunal cases may provide transferable skill in evaluating evidence, including alleged stereotyping, unconscious bias and explanations that discrimination played no part. Employment Tribunal membership alone would not automatically qualify a person, but Ms Bennett’s particular experience gave the judge a proper basis for finding her suitable. [53]-[58]
5. The court gave prospective procedural guidance. In Equality Act discrimination cases, the court should address early whether an assessor is required, the matter requiring assistance, the type of assessor and the proposed identity. A proposed assessor must be checked for appropriateness and availability, and the parties must be notified of the name, relevant matter and qualifications at least 21 days before appointment. Selection and appointment are judicial decisions, although the court may seek assistance from the parties, Regional Employment Judges, the EHRC and other sources. [61]-[69]

• Court of Appeal (Civil Division) — [2014] EWCA Civ 987, 17 July 2014: appeal dismissed and the assessor decision upheld.
• Central London County Court — Her Honour Judge May QC, claim 0CL00226: objection to the proposed assessor was overruled.