Daniel Matovu v 2 Temple Gardens Chambers & Ors

An appellate tribunal will not interfere with case-management decisions where the hearing was conducted fairly, proportionately and consistently with the overriding objective. A party with substantial tribunal experience may be expected to assist with agreed timetabling and to identify promptly any need for further time.

For direct discrimination and victimisation, the central question is ordinarily the decision-maker’s actual conscious or subconscious reason for the treatment. A protected characteristic or protected act may form part of the background or causal history without being a material reason for the decision. A tribunal may make positive findings on the evidence without applying the statutory burden-of-proof stages.

The appellant, a barrister, brought claims against his chambers, its former head and its senior clerk for direct and indirect race discrimination, race-related harassment and victimisation under the Equality Act 2010.

The Employment Tribunal dismissed all claims on their merits and held that, except for three complaints, they were also out of time. The appellant challenged procedural rulings at the hearing, alleged apparent bias, and contended that the Tribunal erred or gave inadequate reasons in relation to a seminar speaking opportunity and several victimisation complaints.

The central issues on appeal were whether the hearing was unfair or apparently biased, and whether the Tribunal had lawfully determined the discrimination and victimisation claims.

1. Appeal dismissed. The Employment Tribunal had conducted a fair hearing. It was entitled to manage the ten-day hearing firmly, to limit the appellant’s cross-examination of a witness after repeated warnings, and to refuse further written submissions. The appellant had agreed the arrangements, had a fair opportunity to present and answer the case, and did not use available opportunities to seek a timely variation.

2. The individual procedural rulings, and their cumulative effect, would not lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The refusal to permit a private recording, the handling of re-examination, evidential matters, and reasons for postponement were ordinary case-management decisions or reflected findings open to the Tribunal.

3. The Tribunal lawfully focused on the reason why the senior clerk had proposed an additional speaker. Its finding that the proposal had nothing to do with race was adequately reasoned and decisive. The objective suitability of the additional candidate was not the central issue.

4. Direct discrimination and victimisation turn on the decision-maker’s subjective reasons. A protected characteristic or protected act may be part of the circumstances leading to treatment without materially influencing the decision. The Tribunal permissibly found that the temporary clerking arrangements resulted from the damaged working relationship, not the protected act.

5. The Tribunal was entitled to make positive factual findings and dismiss the claims without applying the staged burden of proof under section 136. Its reasons adequately addressed the material issues, including detriment and the limited probative value of the asserted diversity background evidence.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 58.
• Employment Tribunal, London Central: claims for race discrimination, harassment and victimisation dismissed in a decision sent to the parties on 11 February 2020.