ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Langstaff
Strand, London, WC2A 2LL
B e f o r e :
| DR CLAUDIUS D'SILVA
|- and -
|MANCHESTER METROPOLITAN UNIVERSITY
The Respondent was not represented
Hearing date: 10 December 2010
Crown Copyright ©
Lord Justice Rimer :
'1. Under allocation of research time and over allocation of Teaching Time resulting in the breach of the contract of employment.
2. Under allocation of research and studentships.
3. Removal of myself from 2001 RAE submission.
4. The manner in which the PDR (appraisal) process was carried out.
5. The manner in which my application for Readership in 2002 was dealt with leading to my non-appointment.
6. The manner in which my application for Professorship in 2002 was dealt with leading to my non-appointment.
7. The manner in which my application for Professorship in 2003 was dealt with leading to my non-appointment.'
The agreed issues before the tribunal
'1. By a letter dated 8th January 04 [Dr D'Silva] asked [the V-C] to hear all of his grievances. By letter dated 12th January 04 [she] gave precedence to his grievance against Professor M. Neal over his outstanding grievances against his "discriminators" despite the fact that he hadn't formally requested her to hear his grievance against Professor Neal.
2. [The V-C] failed to accede to [Dr D'Silva's] request to involve ACAS in the resolution of the grievance or offer any other solution. This led to [Dr D'Silva] accepting the offer on 24th March to his detriment.'
'8. On the 15th January 2004 I made [the V-C] aware of my intention to file a grievance against Professor M. Neal and stated in my letter dated 19th January 2004 that Professor M. Neal could not now hear my grievances now against my white discriminators Professor Leach and Professor Allen due to a conflict of interest. I therefore asked her to hear all my grievances as in my letter dated 8th January 2004. [The V-C] in her letter dated 21st January 2004 gave precedence to my grievance against Professor M. Neal over my outstanding grievances against my discriminators which was a detriment to myself. I had not formally made a request for her to hear my grievance against Professor Neal.
9. On the 16th February 2004 after some persuasion [the V-C] agreed to hear my outstanding grievances against my white discriminators Professor Leach and Professor Norman Allen. I requested on the 20th February 2004 that she let me know the nature of the grievance panel and the impartial member. Her reply dated the 23rd February stated that it would be heard by Bill Hallam and herself as the impartial member. I was reasonable and pointed out the shortcomings of this panel and asked her to involve ACAS in the process. Her reply offered me no other solution which led me to accept her offer on the 26th March 2004 in detriment to myself.'
The decision of the employment tribunal
'… we consider that fairness to [Dr D'Silva] requires that the same Employment Tribunal reconsider his actual complaint … applying the proper tests, that is, identifying the relevant comparator, stating why if it be the case, [Dr D'Silva] passes Stage 1 of Igen and then to consider what if any non-racial explanation was put forward by [MMU] for the Vice-Chancellor's insistence that she dealt with the grievance.'
The decision of the appeal tribunal
'It is not uncommon for people from minority ethnic groups to see the world through a prism and feel that everything which happens to them is because they are black and are being discriminated against.'
The claimed purpose of the cross-examination was to elicit whether the V-C might have had and demonstrated a stereotypical view of people from minority ethnic groups, including that to which Dr D'Silva belonged. It was said that it was relevant to explore the V-C's reasons for the treatment, in particular whether she was consciously or sub-consciously adopting a racist approach.
'45. Accordingly, taking the items individually, we think that they are a mixture of misunderstanding, a feeling of vulnerability on the part of Dr D'Silva conducting the case, as he was, very much on his own at the start and with some assistance at the end; a feeling that he was being outgunned by the impressive lawyers for the Respondent and a sense that, the Tribunal having begun by refusing his application, it was biased against him. Whether we take the points individually or whether we take them collectively, and even after allowing for any influence which the first two points raised by Mr Duggan on Dr D'Silva's behalf may have, we cannot conclude that there is anything in them sufficient to justify a full hearing before this Appeal Tribunal. We do not think that the points about bias are arguable and there is no case, with any reasonable prospect of success, before a full Tribunal on that basis.'