England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London WC2A Tuesday 6 February 2001

Tuesday 6 February 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal made by Mr Deman in connection with his claims that the London Business School and a Professor G Baines have discriminated against him and victimised him on racial grounds.
2. Mr Deman made an application to the Tribunal raising these complaints on 15 June 1998. There was a directions hearing before the regional chairman on 14 October 1998. At the beginning of November notice of hearing of the complaint was given. The hearing was to take place in the Employment Tribunal at London North for a period of three days, starting on 19 January 1999.
3. Unfortunately, when the matter came on for hearing neither Mr Deman attended, nor any representative of his. A last-minute letter was faxed from Mrs Deman asking for the matter to be adjourned. The Tribunal refused the adjournment and exercised its power under rule 9(3) of the 1993 Rules of Procedure:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

4. The Tribunal gave extended reasons for their decision to refuse the application to postpone and to dismiss the complaints of unlawful racial discrimination. They were sent to the parties on 21 January 1999. Having set out the circumstances in which the faxed letter seeking a postponement was received, and having summarised the background to the complaints, the Tribunal said this in paragraph 9 of its extended reasons:

"Rule 9(3) of the 1993 Regulations prescribes that before dismissing a complaint the Tribunal must consider the originating application. This the Tribunal did, together with the record of the Directions Hearing and the additional documentation produced both on 14 October by the Applicant and 6 November by the Applicant. The Tribunal also considered the Notice of Appearance and heard submissions from the Respondents' representative. The Tribunal concluded that as the Applicant was not present to present any evidence on which it could base a decision that there had been acts of racial discrimination conducted by the Second Respondent in relation to those matters and on the face of the pleadings it would appear that he had no likelihood of success even if he had been present, the appropriate course of action to take would be to dismiss the claims."

5. The Tribunal concluded that Mr Deman had conducted the proceedings in a frivolous, vexatious and unreasonable manner and should accordingly be liable for costs. It made an order for costs against him, to be assessed on the county court scale 2.
6. Mr Deman made an unsuccessful application to the Tribunal to review that decision. He then appealed to the Employment Appeal Tribunal. At the preliminary hearing on 13 December 1999 he was represented under the ELAAS scheme, a representation service for litigants in person in the Employment Appeal Tribunal. His Honour Judge Pugsley, giving judgment on behalf of the Appeal Tribunal, held that the appeal should be dismissed save as to the matter of costs, on which it should proceed to a full hearing. The reason for dismissing the appeal on the main points of discrimination and victimisation was that the Appeal Tribunal was unable to find in the reasoning of the Employment Tribunal any error of law. Appeals from the Employment Tribunal, whether or to the Appeal Tribunal or this court, are confined to points of law.
7. Mr Deman applied to the Employment Appeal Tribunal for permission to appeal. It was refused on 23 March 2000. On 18 April 2000 Mr Deman filed with this court an application for permission to appeal.
8. In a letter of 10 January 2001 the court received an application for an adjournment of today's hearing, made on Mr Deman's behalf by an organisation called the India-America Society. It was said that Mr Deman had returned from overseas, but was sick. He had spoken to a Mr John Davis of counsel, who was willing to act for him. However, Mr Davis had an ongoing case in the High Court on 12 January 2001 and was concerned about a possible clash of that commitment with the hearing of Mr Deman's application today. It was submitted that, in view of Mr Davis' schedule and Mr Deman's ongoing sickness, the application should be adjourned.
9. On 24 January I refused the application in writing, saying that the hearing would remain listed for 6 February. There would be sufficient time for Mr Deman to arrange for representation by someone else who would be available; and, hopefully, for him to recover his health.
10. But no one has appeared to represent Mr Deman today and he has not attended in person. In those circumstances I have considered the matter on the papers, bearing in mind that an appeal lies only on a question of law.
11. In his grounds of appeal, Mr Deman sets out a number of reasons why he is dissatisfied with the decisions of the Employment Tribunal and the Employment Appeal Tribunal. He submits that the refusal to adjourn his hearing in the Employment Tribunal was a breach of the rules of natural justice. He makes allegations of bias and perversity against the Employment Tribunal and the Employment Appeal Tribunal. He repeats that he is suffering from a continuing illness. He complains that he has not received in either tribunal a fair hearing and that there has been a failure by those tribunals to address the issues for decision. He also complains in a number of particulars that the respondents have failed to comply with the directions given by the Tribunal in relation to the provision of lists of documents, common bundles and witness statements.
12. I have examined the Tribunals' decisions in the light of those criticisms. I am unable to find in the decision of the Employment Tribunal any error of law which would justify granting permission to appeal. The Tribunal, as is clear from regulation 9(3), had a very wide discretion as to whether or not it would postpone the matter at Mr Deman's request or decide it. In my judgment it correctly directed itself on the scope of its powers under regulation 9(3). In the exercise of that discretion it has not made any error of law or come to a decision which could be described as plainly wrong. In those circumstances, the Employment Appeal Tribunal was right to dismiss the appeal save on the question of costs at the preliminary hearing on 13 December 1999.
13. For those reasons I refuse to grant an adjournment of the hearing of today's application and I refuse the application for permission to appeal.
ORDER: Applications refused