Holbrook: Intending to appeal
The barrister who left his chambers following a storm last year over a tweet about a “stroppy teenager of colour” has had a £3m discrimination claim against the set thrown out for being time-barred.
Judge Brown in the London Central Employment Tribunal held that Jon Holbrook had made a “considered decision” not to bring a claim in the three months that followed his departure.
Mr Holbrook – who styles himself on Twitter as the “barrister cancelled for defying the woke” – was suing Cornerstone Barristers for direct belief discrimination, harassment related to belief and victimisation.
He told Legal Futures that he intended to appeal the decision. The judge said Mr Holbrook was seeking to return to full-time practice at the Bar and seeking damages of £3m.
In January 2021, the barrister sparked a furious response on social media for tweeting that “The Equality Act undermines school discipline by empowering the stroppy teenager of colour”.
He was expelled from chambers on 1 February – although he said that he had in any case resigned four days before.
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 in March.
He claimed before the employment tribunal that, following the tweet, the chambers – through the four QCs and six juniors on its management board – victimised, harassed and discriminated against him in eight specific ways that he said someone with “mainstream political views or a member who did not espouse conservative beliefs such as ones that challenged identity politics, multiculturalism and ‘woke’ ideas” would not have been.
Judge Brown recorded that at the time Mr Holbrook knew of, and indeed had written about, the December 2019 employment tribunal decision in Forstater, which held that gender critical beliefs did not amount to a philosophical belief protected under the Equality Act 2010.
The barrister submitted that, as a result, he did not believe he could bring an employment tribunal claim.
However, on 10 June 2021, the Employment Appeal Tribunal decided that Maya Forstater’s beliefs were protected.
But while Mr Holbrook was aware of this, he did not read the judgment until 23 August. He claimed this was because he did not want to delay the then ongoing BSB proceedings further by making submissions based on the Equality Act.
When he did read it, in order to prepare his appeal against the BSB’s sanction, he said he then realised he might have a legal remedy against Cornerstone and consulted a solicitor. He eventually issued the claim on 30 September.
In applying for an extension to the three-month time limit to bring a claim, Mr Holbrook said he had wrongly believed it was longer for discrimination claims and argued that his case was of broader importance because it involved rights of freedom of expression.
Judge Brown concluded that the barrister “made a considered decision, during and immediately after the events in question, not to bring a claim of discrimination against the respondents”, when there were no legal impediments to doing so.
She explained: “He was in possession of the facts of the alleged detriments when they occurred, but made a judgment that his claim would not succeed on the law.” He did so having read the Forstater decision, even though he knew it was not binding authority.
It was also clear that Forstater concerned a different set of philosophical beliefs to Mr Holbrook’s.
His lack of knowledge of the relevant time limits was “not reasonable”, the judge went on. As an experienced barrister, he could “easily have conducted his own research”.
Even if Mr Holbrook’s belief that the claim would not succeed was reasonable, “he was significantly at fault in not reading the EAT decision in Forstater when it was handed down”; the BSB proceedings were not a good reason not to consider and pursue a potential claim.
Judge Brown added that Cornerstone would be “considerably prejudiced” by an extension of time.
“The most obvious hardship to the respondent[s] is the disadvantage of having to meet a claim which was otherwise out of time.
“However, I also agreed with the respondents’ submission that the relevant decisions would have been made by numerous members of chambers, whose thought processes, in a snapshot of time in January 2021, would need to be examined.
“The passage of time is inherently likely to have interfered with the ability of those individuals to recall their motivations and thought processes.”
Also, the nature of the claim did not override the other factors relevant to the exercise of the judge’s discretion.
“I was not persuaded that the claimant’s complaints of discrimination were more important or weighty than many other discrimination complaints, based on other characteristics, brought to the tribunal.”
The chambers’ arguments “appeared weighty” as well, including that its actions were not related to Mr Holbrook’s beliefs – which it said he had been expressing in publications and on social media for many years – but to a single tweet that was offensive and regarded as discriminatory.
“On all the facts, there was very little reason to extend time,” Judge Brown concluded. “The claimant has not shown that time should be extended. His claim was presented out of time. The tribunal has no jurisdiction to consider it. It is dismissed.”
In a statement, Mr Holbrook said he intended to appeal. “The judge had to decide if it was just and equitable to extend time for bringing my claim against a background of developing law on belief discrimination and whilst I faced a career-ending investigation by my professional regulator, the Bar Standards Board.
“I issued my claim promptly after these two issues were resolved in my favour.
“In the meantime, I have returned to the Bar and am using my 30 years of legal experience to advocate for others who have experienced the unjustness of cancel culture.”
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