England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Friday, 1 November 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr John Davies on behalf of the applicant, Dr Deman. The decision which it is sought to appeal is that of the Employment Appeal Tribunal presided over by Mr Justice Lindsay on 22 April 2002.
2. The appeal tribunal dismissed Dr Deman's appeal on the grounds there was no error of law in the decision of the Employment Tribunal, which had dismissed his claims of race discrimination and victimisation against the Association of University Teachers. The claim arose out of the alleged discrimination of the association in the refusal to give him legal assistance to bring proceedings against Queen's University, Belfast, where he had been a probationary lecturer in the Accountancy and Finance Department from 14 February 1994 until that position was terminated on 30 September 1995. The Employment Tribunal gave its decision in extended reasons of 23 April 1999. The conclusion was that there was no inference to be made from any of the evidence that race discrimination or victimisation had occurred. The important parts of the extended reasons are in paragraphs 18 to 21, explaining their conclusion in paragraph 22 that they had unanimously decided that the complaints failed and should be dismissed.
3. There have now been submitted amended grounds of appeal. They are four in number: (1) that the Employment Appeal Tribunal erred in law in finding that the Employment Tribunal had given sufficient, or any, reasons for its conclusion that the appellant's claim failed; (2) the appeal tribunal erred in law in finding and in attempting to find that, within the Employment Tribunal decision, as interpreted and re-worded by the Employment Tribunal, there were sufficient reasons to justify the Employment Tribunal conclusion; (3) the Employment Appeal Tribunal and the Employment Tribunal erred in law in holding that there was no evidence from which an inference of racial discrimination or victimisation could be drawn; and, (4) the Employment Appeal Tribunal erred in law in failing to hold that, on all the available material stated by the Employment Tribunal, and the Employment Tribunal had erroneously failed to consider unconscious racial discrimination and/or victimisation, but only looked for conscious discrimination.
4. The last ground is based on reference in paragraph 20 to the possibility - which they ruled out - of there having been conscious discrimination.
5. The grounds of appeal, as amended, are supported by skeleton argument from Mr Davies.
6. I am satisfied that in this case there are real prospects of the appeal succeeding on the grounds set out in the amendment to which I have referred. I would observe two matters. First, although the grounds of appeal refer repeatedly to errors of law by the appeal tribunal, the real question for this court is whether there is any error of law in the decision of the Employment Tribunal. I think that is simply a matter of the way the grounds have been phrased. I am sure Mr Davies appreciates that the focus of the appeal, when it is heard, will be on the decision of the Employment Tribunal rather than on the decision of the appeal tribunal.
7. Secondly, some of these grounds are stronger than others, but I do not think it is appropriate to refuse permission on some of those grounds. It is clear that the two main points which should be the focus of appeal are, first, the criticism at paragraph 21 of the extended reasons where the tribunal stated that it was -

"unable to find any evidence from which an inference of race discrimination or victimisation could be drawn against the respondents" -

and, secondly, the issue of whether the tribunal considered the possibility of unconscious discrimination. That is based on the reference in the concluding part of paragraph 20 of the extended reasons, only to the possibility of conscious racial discrimination.

8. For those reasons I am satisfied that this matter should proceed to a full hearing.
9. Mr Davies is alive to the possibility that, even if the appeal succeeds, that does not necessarily result in an overall decision on liability in favour of the applicant. It seems at present that, if the appeal succeeds, there is no alternative but to remit the matter for an entire re-hearing before a differently constituted appeal tribunal. I do not see how this matter could be resolved either by the Court of Appeal itself or by the same tribunal being asked to reconsider the question of inferences from the facts which it has found.
10. I am sure Mr Davies also appreciates that, if the appeal fails, the likely course is that the respondent would seek to have an order for the costs of the appeal against an unsuccessful appellant. I repeatedly remind parties when they come to this court that the regime as to costs is not the same as the regime as to costs in the Employment Tribunal and in the Employment Appeal Tribunal, where it is still relatively unusual to make orders for costs against the unsuccessful party. In this court an unsuccessful appeal often results in an order for the costs of the appeal to be paid by the unsuccessful appellant.
11. For those reasons this matter will proceed to a full hearing.
Order: Application granted