Appointments: Barrister not ‘genuinely interested’
An employment tribunal has struck out a discrimination claim brought by a disabled barrister over his failed applications for judicial appointment because he was not eligible for the posts he sought.
Employment Judge G Smart said that because Jacob Meagher applied for roles he could never take up, he could not benefit from the protection he might otherwise have enjoyed.
The case was sufficiently clear to overcome the high hurdle for striking out discrimination claims with disputed facts.
Mr Meagher, who first qualified in New Zealand in 2016, was called to the Bar in England and Wales in November 2018.
He applied for appointments as a deputy district judge in both 2021 and 2022 – for which he needed five years’ post-call experience – but claimed he had been told by a member of staff at the Judicial Appointments Commission (JAC) that his experience in New Zealand would count. The staff member denied this.
As it was a strike-out application, Judge Smart made no findings on this and assumed it had happened.
Mr Meagher also claimed he was put off applying to become a recorder in 2023, for which seven years’ experience was needed, because of the JAC’s past failures to make what he considered to be satisfactory reasonable adjustments about online qualifying tests.
He claimed indirect discrimination, a failure to make reasonable adjustments and victimisation.
The law requires a claimant rejected from a job in a discriminatory way must show they were “genuinely interested” in the role to be able to sue. This is to stop abusive claims.
Judge Smart held that Mr Meagher was “subjectively genuinely interested” in the roles and “he did not appear to be a person trying to make money out of the JAC or other respondents with hypothetical applications he would never have taken up if offered to him”.
However, he decided that the fact he was ineligible to apply meant, legally speaking, that he was not genuinely interested in them.
Mr Meagher accepted that “the burden of checking eligibility was on him as the applicant”, the judge explained.
“On a summary view, this undermines his case about being mistaken. It doesn’t matter what [the JAC employee] told him in discussion even if it was misleading and the claimant was therefore mistaken. The claimant accepts he should have checked his eligibility for himself.”
The advertisement literature for all the roles was clear “and the statutes were referred to in that literature for the claimant to look up and check. He was very capable of doing that given his qualifications and experience”.
Mr Meagher “ought reasonably to have known that he wasn’t eligible, and, to exclude [him] would make it far too easy for applicants to commence litigation on the basis of ‘I didn’t know’ about eligibility requirements even when, as is the case here, the requirements were spelled out to applicants in the advertisement literature”.
The victimisation claims failed as those were based on the failure to make reasonable adjustments.
The judge noted that Mr Meagher has recently issued a second claim for a more recent application for judicial office.
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