Holbrook: Claims were not special, says EAT
The Employment Appeal Tribunal (EAT) has rejected an appeal from a barrister expelled from chambers after posting a tweet about a “stroppy teenager of colour”.
Mr Justice Choudhury said he agreed with the first-instance tribunal that there was nothing “special” about Jon Holbrook’s claim for £3m compensation from Cornerstone Chambers that justified the use of discretion to extend the time limit.
Mr Holbrook argued that his expulsion from chambers amounted to less favourable treatment by reason of belief under the Equality Act 2010, in this case a belief in social conservatism.
He posted the tweet, in January 2021, he was a tenant at Cornerstone and required to adhere to its social media policy.
He was responding to a tweet by the Equalities and Human Rights Commission, publicising a settlement achieved in a case involving a Black schoolgirl excluded for wearing an afro hairstyle.
Mr Holbrook wrote: “The Equality Act undermines school discipline by empowering the stroppy teenager of colour.” This sparked a furious response on social media.
Mr Holbrook refused to delete the tweet when asked by his chambers, or to apologise for it, with the result that Cornerstone passed a resolution to expel him, which he supported. Mr Holbrook had already “sought to tender his resignation”, but this had been rejected.
Under section 123 of the Equality Act 2010, the barrister was obliged to bring any claim for discrimination on the grounds of belief within three months.
The deadline expired at the end of April 2021, but Mr Holbrook did not present his claim until the end of September 2021, five months out of time.
A Bar Standards Board (BSB) investigation into his Twitter activity then followed and led to an administrative sanction and £500 fine over one tweet – not the one at issue here – a decision that was overturned on appeal.
Mr Holbrook’s claim against Cornerstone was thrown out in August 2022, with Judge Brown at the London Central Employment Tribunal holding that he had made a “considered decision” not to bring a claim in the three months after his departure.
Mr Holbrook had sought an extension of time on the grounds that his failure to lodge the claim was because of the Forstater ruling in December 2019 that a person’s gender critical belief did not qualify for protection under the Equality Act.
This meant, he believed, that his claim “also stood very little chance of success”. Forstater was overturned in June 2021 but Mr Holbrook said he did not read that judgment until August 2021.
Choudhury J said his prospects of establishing social conservatism as a protected belief “were no poorer than for a host of beliefs, political, religious or otherwise, in respect of which there had been no adverse ruling by any court or tribunal”.
Forstater was a first-instance decision on a different belief: “It said nothing about social conservatism and was far from directly analogous.”
In any case, there was a “relatively high bar for those seeking to rely on a particular understanding of the law to justify their reticence in issuing proceedings”, which the judge said was in the interests of legal certainty.
“Were it not so, then any putative claimant could rely on an academic article, an arguably adverse first instance decision or the outcome of a forthcoming appellate decision before deciding to lodge a complaint.”
This would “open the door to a somewhat lax approach to the time limit” and “be likely to impose an intolerable burden on tribunals exercising a broad discretion”.
Choudhury J also upheld Judge Brown’s decision to reject the barrister’s case that he was so preoccupied with the BSB proceedings that nothing else crossed his mind.
This was simply a case of “one of a litigant deciding to prioritise one set of proceedings over another… That does not provide a firm foundation for an argument that delay or failure to act was reasonable”.
Mr Holbrook, who represented himself at the EAT, argued too that the tribunal had failed to properly consider “the particular prejudice” he would suffer.
Choudhury J said the judge had “expressly acknowledged” that there would be prejudice to the barrister, making “express findings of fact” as to his desire to resume his career at the Bar, his claim for more than £3m, and contention that his claim involved rights of freedom of expression.
“The thread running through much of the claimant’s case under this ground is that the prejudice in his case was “immense” as compared to other discrimination claimants.”
However, the judge said the “absolute value of a claim” did not increase the “relative prejudice to a particular claimant” of not being able to pursue it.
“A manual worker who loses his modest salary as a result of a discriminatory termination is no less prejudiced by losing the right to bring a claim than the highly paid professional.”
Choudhury J said it would be difficult to improve upon the employment judge’s “pithy conclusion” that Mr Holbrook’s claims were not “in a special category requiring more favourable consideration in the exercise of discretion”.
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