On 15 February 2022, the High Court ruled that the appointment of Baroness Dido Harding as the Chair of the National Institute for Health Protection, and the appointment of Mike Coupe as Director of Testing at Test and Trace by the Secretary of State for Health and Social Care (Matt Hancock) were unlawful. The High Court also stated that the appointment of Baroness Harding as Head of Test and Trace by Boris Johnson was unlawful.
The Runnymede Trust and the Good Law Project challenged the above appointments and the practice underlying them on two grounds;
- They were indirectly discriminatory under the Equality Act 2010;
- The Government appears to have breached its public sector equality duty in Section 149 of the Equality Act 2010.
Indirect discrimination (1):
Section 19 and 39(1)(a) of the Equality Act asserts that indirect discrimination in recruitment is unlawful unless it can be shown to be a proportionate means of achieving a legitimate aim. The claimants alleged that the appointments of Baroness Harding and the others ‘have applied a policy, criterion or practice of recruitment without open competition and/or that the appointees should be personally, professionally or politically connected with the relevant decision makers or with senior members of Conservative Party’.
Breach of its public sector equality duty (2):
The claimants stated that ‘it appears the Government has;
- taken decisions not to hold transparent and fair recruitment for these particular appointments; and/or
- adopted an informal policy of closed recruitment for major public appointments in related to Covid’.
The initial claim pointed out that prior to Baroness Harding’s appointments within the NHS and Test and Trace ‘she had no experience as a public administrator or in the health sector. She is the wife of former Conservative Party Minister John Penrose, who is the Prime Minister’s “Anti-Corruption Champion” and a personal friend of former Prime Minister David Cameron’. Prior to her appointments she was the ‘chief executive of the TalkTalk Group, where she faced calls for her resignation after a cyber-attack revealed the details of four million customers’.
The appointments to important roles within Test and Trace made after and under her included Mike Coupe, a former CEO of Sainsburys, also with no experience as a public administrator or in the health sector but happens to be a former colleague and friend of Baroness Harding.
The claimants alleged that there was no transparent or fair process for the appointments held by Baroness Harding and Mr Coupe. There was no publicly available information on the recruitment process, no job advertisements, person specifications, or application process.
The High Court declared that Matt Hancock did not comply with section 149 of the Equality Act 2010, in relation to the appointments of Baroness Harding and Mike Coupe, and was therefore unlawful.
The High Court was also clearly stated that the process adopted by Boris Johnson was also unlawful.
The High Court also accepted that the recruitment process failed to eliminate discrimination.