England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Langstaff
UKEAT/0336/09/LA

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2011

Lord Justice Rimer :

Introduction

1. This is a renewed application for permission to appeal. The applicant is Dr Claudius D'Silva, the claimant before the employment tribunal. He seeks permission to appeal against an order made by the Employment Appeal Tribunal on 27 January 2010 (Langstaff J, Mr M. Clancy and Mrs D.M. Palmer). That order followed a preliminary hearing of Dr D'Silva's proposed appeal to the appeal tribunal. A preliminary hearing is one at which ordinarily only the appellant is heard, and in this case representations were made both by Dr D'Silva in person and by Mr Michael Duggan, counsel representing him under the ELAAS Scheme. A preliminary hearing is a form of filtering process. If the appeal tribunal is impressed that one or more grounds of appeal is or are properly arguable, it will direct that it or they should proceed to a full hearing on notice to the respondent. In relation to any grounds in respect of which it is not so impressed, it will dismiss them.
2. The appeal tribunal accepted that there was an arguable ground in relation to the employment tribunal's refusal to adjourn the hearing of Dr D'Silva's claim and it ordered that ground to proceed to a full hearing. It dismissed the other grounds. By an appellant's notice filed on 24 February 2010 (within 21 days of the seal date of the appeal tribunal's order and so in time), Dr D'Silva seeks to challenge the appeal tribunal's dismissal of those other grounds. Mummery LJ refused permission on the papers on 2 August 2010 on the ground that he considered that there was no basis for a challenge to what he assessed to be the appeal tribunal's correct disposition of such grounds.
3. Dr D'Silva presented his application to me on 10 December 2010 at a hearing for which, as usual, 30 minutes were allocated. I allowed him about 40 minutes to address me, having indicated at the outset that I would put my decision in writing. The time available at the hearing would not have permitted the giving of a sufficiently comprehensive oral judgment.

The facts

4. Dr D'Silva's claims were for race discrimination. The respondent was Manchester Metropolitan University ('MMU'). The Manchester Employment Tribunal (Employment Judge O'Hara, Mr Q. Shah and Mr M. Georgson) heard his claims over three days in December 2008 and two in March 2009, after which, by their judgment and reasons sent to the parties on 2 April 2009, they dismissed them. Mr D'Silva represented himself on the first three days, and on the last two he was represented by Mr Deman, a lay representative. Mr Gilroy QC represented MMU. I summarise the tribunal's findings as follows.
5. Dr D'Silva is of Indian ethnic origin. He commenced employment with MMU in September 1993 as, and still is, a Senior Lecturer in the Department of Chemistry in the Faculty of Science and Engineering. He has in the past brought several discrimination claims against MMU in employment tribunals. A claim brought in August 2002 was dismissed in October 2003 upon its withdrawal. Four further claims that he presented between December 2003 and August 2004 were consolidated in September 2004 and heard in April 2005. The tribunal's judgment of 3 June 2005 upheld six of Dr D'Silva's complaints and dismissed the rest. MMU appealed to the appeal tribunal, which upheld its appeal in respect of all six complaints, dismissed five of them and remitted the sixth for a re-hearing by the tribunal. The issues to be decided on that remitted matter were agreed by counsel at the tribunal hearing, and it was the tribunal's decision on that matter that was the subject of Dr D'Silva's dismissed appeal to the appeal tribunal, following which he now seeks permission to appeal to this court. I will set out the agreed issues in due course.
6. The background facts were as follows. Dr D'Silva had lodged a grievance in September 2003 about his timetable supplied by Professor Leach. Professor Neal (Dean and Pro-Vice-Chancellor of his Faculty) investigated his complaint and did not uphold it. Dr D'Silva appealed to the Vice-Chancellor, Dame Sandra Burslem ('the V-C'), against that decision. By her letter of 9 December 2003, she dismissed his appeal. On 12 December 2003 Dr D'Silva wrote to the V-C. He explained how reasonable he had been in withdrawing in October 2003 his tribunal claim of racial discrimination and harassment. He expected the V-C to address his long-standing issues but said that Professor Leach had directed further victimisation and harassment at him. He said he would like to present the V-C with his grievance against both Professors Leach and Allen. He wanted her to address the following seven issues:

'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.'

7. The V-C's response on 22 December said that, in order to decide who should hear his grievance, she needed Dr D'Silva to expand each allegation and explain against whom it was directed. His response on 8 January 2004 was that she, the V-C, should hear the grievance, as it was her duty to do so.
8. On 14 January 2004 the V-C replied that Professor Neal would be the appropriate person to hear the grievance against Professors Leach and Allen. On 15 January, however, Dr D'Silva wrote to Professor Neal informing her that he was taking out a grievance against her as well. His complaint was that she had asked him to undergo observation of his teaching, which was 'a breach of my interpretation of the Race Relations Act which relates to organisations'.
9. On 19 January Dr D'Silva wrote to the V-C, saying he was filing a grievance against Professor Neal for victimisation and breaches of the Race Relations Act 1976. It followed, he said, that it would be unprofessional for Professor Neal to hear his grievance against Professor Leach. He wanted the V-C to hear all his grievances, and he provided a copy of his letter of 15 January to Professor Neal. On 21 January the V-C proposed to him that she would hear the grievance against Professor Neal on 5 February and informed him that he could be accompanied at the hearing.
10. Dr D'Silva's response to that, on 27 January, was that it was a yet further act of discrimination and victimisation. He suggested that the V-C should comply with his original request that she should hear his grievance against Professor Leach; and said that he had not made a formal grievance against Professor Neal. He explained that he had served questionnaires concerning Professor Neal under the 1976 Act and asserted that any attempt to set up a hearing before he had received the replies would be a detriment and a further act of racial discrimination and victimisation.
11. The V-C replied on 29 January explaining, with apparent cogency, that she had understood from Dr D'Silva's letter of 15 January, copied to her, that he had taken out a grievance against Professor Neal; and she made the point that, had she not responded promptly, she might have been open to criticism for delay. She explained that the Grievance Procedure indicated that Professor Neal, as Dean of the Faculty, was the right person to hear the grievances against Professors Leach and Allen. But, given the grievance against Professor Neal, she would ask a Dean/Pro-Vice-Chancellor from another faculty to hear Dr D'Silva's grievances against them, with an appeal to her, the V-C, if he was dissatisfied with the outcome. Given what Dr D'Silva had said about questionnaires, she would await further information from him before proceeding with the grievance in relation to Professor Neal.
12. On 4 February the V-C wrote to confirm that Mr Dunn, Dean of MMU Cheshire, would hear the grievance against Professors Leach and Allen and she informed Dr D'Silva that an initial meeting would be held on 13 February. Dr D'Silva replied on 5 February. He disagreed with her proposal, saying it was common knowledge that the outcome of grievances heard by Professors and Deans were a foregone conclusion because they collude together to undermine the grievances. He made some more race discrimination allegations and repeated his assertion that it was the V-C's duty to hear his grievances against senior members of MMU who pursue acts of racial discrimination.
13. The V-C responded on 16 February, expressing disagreement with Dr D'Silva's assertions as to the suitability of other Deans to hear grievances, but expressing her willingness to hear his grievances personally on the basis that that would be the final stage of the grievance procedure and he would have no right of appeal under that procedure. On 20 February Dr D'Silva thanked her for agreeing to hear his grievances, said he hoped he would have a right of appeal, set out seven specific questions concerning the procedure and asked that ACAS should be involved '… and help set up the panel this would help alleviate my concerns on impartiality.' He said in his submissions to the tribunal that he had raised the ACAS point because the V-C had been involved in his unsuccessful applications for a professorship and a readership, which he believed were rejected on racial grounds. He did not, however, say that in his letters written at the time.
14. The V-C replied on 23 February enclosing a copy of the Grievance Procedure, answered the seven questions and expressed the view that it would be inappropriate for ACAS to be involved. She reminded Dr D'Silva that, under the Grievance Procedure, if the grievance was to be heard by her, no further appeal would lie. If he wanted to retain a right of appeal, he should reconsider the suggestion that Mr Dunn should hear the grievance. Dr D'Silva's response on 26 February was that the V-C could not be an impartial member of a panel hearing his grievance because she had been involved in all the matters the subject of his grievance. He repeated his request to involve ACAS, failing which he would be forced to file another grievance to the Board of Governor's directed at the V-C's failure to uphold the 1976 Act and 'to allow further acts of racial discrimination to conducted [sic] against me ….' On the same day he confirmed that he would be pursuing a grievance against Professor Neal, whose replies to the questionnaire he regarded as inadequate.
15. The V-C wrote again to Dr D'Silva on 16 March, repeating that the Grievance Procedure made no reference to involving an external body such as ACAS, and asking him to confirm whether he wanted her to hear his grievance. She pointed out that he had a right to pursue any grievance against her before the Board of Governors. Dr D'Silva replied on 26 March, saying that it was 'far from the case' that he did not want the V-C to hear his grievance, and he said that he had to respect the V-C's decision.
16. In the event, Dr D'Silva did not pursue his grievance against Professor Neal; and the outcome of his grievance against Professors Leach and Allen was not material to the issues before the tribunal.

The agreed issues before the tribunal

17. The remitted issues the subject of the tribunal hearing were agreed by the parties in the following terms:

'1. By a letter dated 8^th January 04 [Dr D'Silva] asked [the V-C] to hear all of his grievances. By letter dated 12^th 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 24^th March to his detriment.'

18. As for issue 1, the reference to a letter of '12^th January 04' appears to have been an inaccurate reference to that of 21 January 2004. Nothing, however, turns on that, and the essence of the alleged discrimination was that the V-C had given precedence to the later grievance against Professor Neal over the earlier grievances against the 'discriminators' Professors Leach and Allen. It may help to quote the original complaints in Dr D'Silva's ET1 that were condensed into those issues. They read:

'8. On the 15^th 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 19^th 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 8^th January 2004. [The V-C] in her letter dated 21^st 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 16^th 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 20^th February 2004 that she let me know the nature of the grievance panel and the impartial member. Her reply dated the 23^rd 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 26^th March 2004 in detriment to myself.'

The decision of the employment tribunal

19. Having directed itself to the law and made clear that there was no issue before it as to whether Dr D'Silva had been victimised contrary to section 2 of the 1976 Act, the tribunal said that the only issue before it was one of direct discrimination and that the only aspects of Dr D'Silva's grievances with which it was concerned were those identified in agreed issues 1 and 2. In remitting those issues to the tribunal for a hearing de novo, the appeal tribunal had said in its judgment of 26 September 2007 (UKEAT/0024/07), at paragraph 109:

'… 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.'

20. The tribunal said that, having seen and heard Dr D'Silva give evidence, it was 'inclined to accept' Mr Gilroy's submission for MMU that his case was 'riddled with contradiction, misrepresentation, duplicity and opportunism.' The tribunal, in paragraph 16, identified two contradictions on Dr D'Silva's part. It referred, in paragraph 17, to his assertion that MMU had routinely used outside bodies in the resolution of grievances, suggesting that the V-C's failure to use ACAS in his case was less favourable treatment. The tribunal found, however, that there was no provision in the Grievance Procedure for using outside bodies and accepted the evidence of Dr Okoje (a Senior Law Lecturer at MMU and the Equality Officer of the UCU) that MMU had not used such outside agencies in the resolution of grievances. It referred, in paragraph 18, to Dr D'Silva's admission that he knew of no case in which ACAS had been involved in the resolution of a grievance with MMU. He at first denied having contacted ACAS in 2004, but then admitted that he may have done so when faced with his letter of 26 February 2004. In paragraph 19, the tribunal made a finding as what it regarded as an exercise of opportunism by Dr D'Silva.
21. The tribunal turned to analyse Dr D'Silva's complaints. It dealt first with agreed issue 1. Part of his complaint appeared to be that the V-C's proposal to deal with the Neal grievance ahead of those against Professors Leach and Allen was discriminatory. The tribunal explained that the Grievance Procedure required the grievances against Professors Leach and Allen (a Head of Department and a Dean of Faculty) to be heard by a Dean of Faculty. The V-C's suggestion that either Professor Neal or Mr Dunn should hear them was consistent with the Grievance Procedure and did not constitute less favourable treatment of Dr D'Silva. When the V-C received Dr D'Silva's copy letter of 15 January indicating a grievance against Professor Neal, she recognised that this would have to be deal with by her and she so informed Dr D'Silva. That was not less favourable treatment either. One of Dr D'Silva's complaints was that the V-C had refused to hear his grievance against Professors Leach and Allen, but the tribunal found as a fact that she did not; it also rejected on the facts a complaint of delay on the V-C's part.
22. The tribunal referred in paragraph 23 to various points that Dr D'Silva had advanced, not being part of the issues upon which the tribunal was required to adjudicated, and it comprehensively rejected them in paragraph 24. So far as issue 1 was concerned, the tribunal disposed of Dr D'Silva's complaint on the basis of its finding that whatever he had there been complaining of did not amount to less favourable treatment of him.
23. The tribunal turned to issue 2. In paragraph 25 it found that the Grievance Procedure did not provide for the referral of grievances to outside bodies. It found that the V-C considered and made suggestions of all suitable mechanisms for the resolution of Dr D'Silva's grievance. It found that he had failed to show he had suffered less favourable treatment and that his case did not reach the point at which it was necessary to hear any exculpatory explanation from MMU. Any hypothetical comparator would have been treated in the same way.

The decision of the appeal tribunal

24. The appeal tribunal dealt first with Dr D'Silva's complaint that he had been refused an adjournment of the tribunal hearing at its commencement on 16 December 2008. It gave its reasons for accepting that Mr Duggan on his behalf had identified an arguable point that merited going forward to a full hearing on notice to MMU. There is no need to say more about that.
25. The appeal tribunal considered next the point that Dr D'Silva's representative (Mr Deman) at the adjourned tribunal hearing in March 2009 had been stopped by the tribunal from cross-examining the V-C about a statement she had made at the tribunal hearing in 2005 that:

'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.

26. The appeal tribunal rejected this ground of appeal as unarguable. That was because, in remitting the matter to the tribunal, the appeal tribunal had directed it to deal with it by the two-stage Igen approach. Stage 1 required the tribunal to find whether there had been any less favourable treatment of Dr D'Silva. Only if there had been would it have been necessary for the tribunal to go and consider what the reason for the unequal treatment was. The tribunal had, however, found under the Stage 1 inquiry that there had been no less favourable treatment of Dr D'Silva. Therefore any inquiry as to the V-C's thought processes was irrelevant. It may be that, when the question was disallowed, the tribunal did not yet know what its final decision on Stage 1 would be. But, in the event, it made the findings of fact that it did. Moreover, the appeal tribunal could not see how the instinctive reaction of the V-C, if that was what her comment displayed, could have infected what was otherwise a non-discriminatory procedure.
27. The third ground of appeal before the appeal tribunal was advanced by Dr D'Silva in person and was based on an allegation of bias against the tribunal. In so far as apparent bias is concerned, the now well-known test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility or a real risk that the tribunal was biased. The allegations of bias were set out in an affidavit of Dr D'Silva that was put before the appeal tribunal in unsworn form. First, there was a point that the tribunal had limited the time for cross-examination of the V-C to two hours, which had in fact expanded to three. By contrast, Dr D'Silva's oral evidence had occupied a day and a half. No point was made that there were issues that could not be explored in the time allotted for the cross-examination of the V-C. The limiting of the time for cross-examination, said the appeal tribunal, was simply a normal part of the tribunal's case management responsibilities, which it was exercising in a case raising two fairly narrow issues.
28. Next, there was a point that at the adjourned hearing in March 2008 the tribunal refused the admission of medical evidence and race relation questionnaires and replies. The former went to the matter of the adjournment already decided back in December 2008, which the tribunal could not re-open in March 2009 and so was by then irrelevant. The appeal tribunal made no separate reference to any significance in the alleged refusal of the tribunal to admit the race relation questionnaires and replies, but the inference is that it was unimpressed that this manifested any apparent bias on its part.
29. The appeal tribunal next rejected an allegation of bias based on an assertion that the tribunal had complained about the manner in which Mr Deman asked certain of his questions of the V-C when cross-examining her. The appeal tribunal was not satisfied that this matter, whatever it amounted to, displayed any unfair hostility to Dr D'Silva. Then there was a complaint that the tribunal allowed Mr Gilroy to give evidence by way of reading letters from the agreed bundle during the course of his submissions. The appeal tribunal explained that the agreed bundle was part of the evidence, and advocates are entitled to read such evidence to the tribunal. There was also some criticism directed to Mr Gilroy's conduct of MMU's case, including that in the course of it he made allegations that Dr D'Silva had falsely misrepresented the evidence. The appeal tribunal did not accept that the allegations against Mr Gilroy were well founded, but they anyway did not help Dr D'Silva. The bias issue did not turn on how Mr Gilroy conducted MMU's case but on how the tribunal conducted the proceedings. The only question was whether, if Mr Gilroy was or might have been overstepping the mark, the tribunal ought to have corrected or stopped him. The appeal tribunal observed that most of the criticism of Mr Gilroy was directed to what he said in his final submissions, which the appeal tribunal regarded as coming within the scope of robust and adversarial advocacy. It was not impressed that it was obvious that the tribunal ought, acting properly, to have jumped in and stopped him and that its failure to do so amounted to a manifestation of bias against Dr D'Silva.
30. Then there was a complaint that at the conclusion of the December 2008 hearing the tribunal had directed Dr D'Silva to provide a list of the questions he proposed to ask the V-C in cross-examination at the adjourned hearing. The appeal tribunal said it had come across such orders before, which were ordinarily made by way of assistance to a litigant in person such as Dr D'Silva so that the tribunal could be clear as to the matters he wanted to raise and to ensure that they were properly explored and understood by the tribunal. The appeal tribunal regarded this order as something intended to help rather than hinder Dr D'Silva. It said this interpretation fitted with what Employment Judge O'Hara had told him on 9 March 2009 when he had appeared with a representative. She indicated that the list of questions was no longer needed, nor was it provided.
31. Then there was another complaint about Mr Gilroy's conduct, namely that he interrupted Mr Deman's submissions, claiming he was misrepresenting questions that had been asked. The point was made that the tribunal did not stop Mr Gilroy from doing this, as it should have done. The appeal tribunal pointed out that it is commonplace at tribunals for an advocate to raise objections if he considers his opposite number is misrepresenting anything. He might wait until the end of the submissions before doing so, or intervene there and then, and frequently the latter is the chosen option. None of this justified an inference of bias by the tribunal.
32. Then there was an assertion that at one point Mr Deman asked the Employment Judge to recuse herself, which she refused. This apparently arose following an alleged interruption of his questions, the limitation of the cross-examination of the V-C to three hours and the stopping of the questions as to the V-C's thought processes. The appeal tribunal concluded that there was nothing to suggest that the tribunal was doing other than to discharge its function of ensuring that Mr Deman's questions fitted within the rules of questioning. There was plainly no justification for his recusal application.
33. After referring to yet further complaints directed at Mr Gilroy that were deployed in support of the bias allegation, a point was made that Mr Deman asked the Employment Judge what the status was of the findings of fact made by the employment tribunal in the earlier tribunal hearing. After some hesitation, the Employment Judge replied that the instant hearing was a de novo one, as to which Dr D'Silva claims to have been left confused. Mr Duggan, however, confirmed to the appeal tribunal that the hearing was a de novo one and that the earlier findings of fact were not in point. If the Employment Judge left matters in some state of confusion, whilst that was undesirable, it did not indicate any bias. Insofar as it was said that the tribunal kowtowed to the seniority of Mr Gilroy, the appeal tribunal said it would need solid evidence that made that good, whereas there was none. The appeal tribunal concluded its rejection of the bias case by saying:

'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.'

This application

34. Dr D'Silva produced for the purposes of the hearing before me draft amended grounds of appeal. The purpose of the amendment was to introduce new points that do not appear to have been canvassed before the employment tribunal or the appeal tribunal.
35. The new grounds seek first to wind the clock back to 16 September 2004 when Employment Judge Gannon gave directions at a case management conference in the four consolidated claims that Dr D'Silva had brought against MMU. Dr D'Silva represented himself at that hearing and Mr Gilroy represented MMU. The directions were set out in a Minute occupying some seven single-spaced pages, the last of which records that it was sent to the parties on 27 September 2004, as I presume it was. The four applications eventually came on for their substantive hearing in April 2005, the outcome and further consequences of which I explained in paragraph [5] above. The ultimate result was that the appeal tribunal remitted one of the issues raised by the four claims to the employment tribunal for a re-hearing de novo. That was the hearing that took place in December 2008 and March 2009, with the parties then expressly agreeing the issues that fell to be decided at it.
36. Dr D'Silva's new point, as set out in the amended grounds, is that, as a lay person in matters of employment law, he 'was not aware of' the contents of the directions made by Mr Gannon in September 2004. He does not, however, explain the nature of his unawareness. Does he mean that, although present at the September 2004 hearing, he did not know that the directions were made? Does he mean that he did not understand them? When they were sent to him, did he not read them? If he did, did he not understand them? When did he first become aware of them? No attempt is made in the draft document to answer these obvious questions. The draft then goes on to assert that both the tribunal and MMU were aware of the directions; and that MMU's solicitors and Mr Gilroy at the appeal tribunal on the hearing of the appeal against the original tribunal decision 'deliberately excluded the documents from the Appeal Bundle'. The new ground of appeal directs more criticism at Mr Gilroy.
37. This new point therefore seems to be directed at asserting that the appeal tribunal that heard the first appeal did not understand what the issues before the employment tribunal had been. Such alleged ignorance was despite the fact that Dr D'Silva was present at the appeal hearing and did not, as he could have done, ensure that, so far as relevant, the appeal tribunal did know what directions Judge Gannon had given back in September 2004. Dr D'Silva's explanation of that omission to me was, as I followed it, that he was then undergoing some depression as a result of the proceedings. There is also a further complaint that when the issue remitted by the appeal tribunal came on for the re-hearing in December 2008, the earlier directions of September 2004 were ignored 'even though [they] had direct relevance'.
38. The amended draft also directs further criticisms directed against Employment Judge O'Hara. They are, however, difficult to follow. They appear to include the assertion that her ignoring of the earlier directions when embarking upon the re-hearing of the remitted issue manifested further bias on her part, which meant that she should not have presided at the remitted hearing at all. The appeal tribunal had, however, directed the re-hearing to be before the same tribunal, which thus required it to be heard by Employment Judge O'Hara. They appear to include an allegation that her conduct at the first hearing in April 2005 had rendered her unfit to preside at the remitted hearing, If there was ever anything in that point, it was one that was superseded by the remission order just referred to. They appear to include an allegation that Judge O'Hara was already biased against Dr D'Silva by 2005, having had her decision to refuse an adjournment overturned in the appeal tribunal, as to which I would make the same observation. A point is also made that Dr D'Silva's discovery in September 2009 of Lady Justice Smith's former holding of the officer of Chancellor at MMU pointed to some further basis for allegations of bias against Employment Judge O'Hara.
39. The proposed new grounds of appeal have, in my judgment, no prospect of success. The proposition that Dr D'Silva 'was not aware' of the directions order made by Mr Gannon in September 2005 is one that, without more – and no more has been put before the court – I am not prepared to accept. He is a man of high intelligence who chose to bring a number of employment claims against his employer. He represented himself in the claims. Whether that was because his economic circumstances compelled it, or because he chose to do so, I do not know. The facts are, however, that he was present at the Gannon directions hearing, and must be taken to have understood what was going on. The directions were then sent to him, he could have read them and made sure he understood them, and if he did not do so that was his fault. Months later there was a substantive hearing before the employment tribunal, at which he achieved material success. There was then an appeal to the appeal tribunal, at the hearing of which he was present, of which the outcome was a remission to the employment tribunal of a single issue for re-hearing. The proposition that throughout that process Dr D'Silva's claimed unawareness of the original directions meant that the first appeal to the appeal tribunal went off on some wholly mistaken footing is an impossible one. It is nothing other than an attempt to undermine the order made by the first appeal tribunal in remitting a single issue to the employment tribunal for re-hearing. The objective of the new line of attack is, as I think Dr D'Silva came close to accepting before me, in some manner to seek a revival of the favourable decisions of the original tribunal hearing, whereas of course they were reversed by the appeal tribunal on appeal, with one issue being remitted for a re-hearing, When that issue was so remitted, the directions originally made by Mr Gannon were, so it seems to me, probably substantially irrelevant.
40. As for the new allegations of bias against Employment Judge O'Hara (which Dr D'Silva did not elaborate in his oral submissions), nothing in the amended grounds suggests to me that they found the basis for any arguable case of bias against her. Nor, so far as I can see, do any of the new points raise anything that could not have been deployed before the appeal tribunal in January 2010. They were not deployed then and there is, therefore, no proper basis for permitting them to be raised for the first time in this court. The question for this court is whether the appeal tribunal presided over by Langstaff J committed an error of law in refusing to allow Dr D'Silva's grounds of appeal (apart from the adjournment point) to proceed to a full hearing. The appeal tribunal was not at fault in not considering arguments that, so far as the amended grounds go, could have been but were not argued before it. I refuse permission to Dr D'Silva to amend his grounds of appeal to raise the new grounds and, as follows, refuse permission to appeal on those grounds.
41. The next ground of appeal is that the appeal tribunal was wrong in its conclusion that the employment tribunal was not in error in refusing to permit Mr Deman to cross-examine the V-C as to her thought processes. I can deal with this shortly. The employment tribunal found as a fact that nothing that the V-C had done, or failed to do, resulted in any less favourable treatment of Dr D'Silva. That was a finding of fact that it was entitled to reach and there is no appeal against it. The complaint that Mr Deman was denied the opportunity of cross-examining the V-C on this particular matter is a complaint of the denial of an opportunity to explore a matter that could have made no difference to the outcome of the discrimination claim. Although at the hearing I invited Dr D'Silva more than once to explain how it could or might have made any difference, he was unable to do so. He at one point modulated to an argument to the effect that, as I followed it, his success on this particular race discrimination issue before the first tribunal was one that, in effect, bound the second tribunal. That was another mistaken proposition. First, as the appeal tribunal pointed out (and as Mr Duggan had confirmed to it), the remitted hearing was a hearing de novo and so the employment tribunal was not so bound at all. Second, such an argument is inconsistent with the only point that is sought to be raised under this head of the proposed appeal, namely that Dr D'Silva was denied the opportunity to investigate a particular issue in cross-examination at the remitted hearing: and the only point of that complaint was that (so he asserts, but could not explain) he was thereby denied the chance of achieving the like type of favourable result that he had achieved before the first tribunal, being a result that the appeal tribunal had subsequently set aside. In my judgment, Dr D'Silva has no prospect of persuading the full court that the appeal tribunal was in any manner in error on this point. I refuse permission to appeal on this ground as well.
42. Finally, Dr D'Silva wants to renew the bias arguments. Allegations of bias against employment judges are frequently raised by appellants who have represented themselves before such judges. Such complaints must of course be considered carefully. There are, however, often very real difficulties in the way of their investigation by an appellate court. In cases of apparent bias – in particular complaints as to the conduct of the hearing – an appellate court suffers from the obvious disadvantage that it was not present at the hearing and so did not see what was going on. In the case of proceedings before an employment tribunal, the appellate tribunal will (at any ordinarily) not even have the benefit of a transcript of the proceedings so that it can see what was said; and there is no transcript in this case. Even if it does have a transcript, the appellant might (as in my experience they do) then say that it was not so much what the judge had said, as the way he had said it that conveyed what is perceived to have been material hostility towards the appellant. There is or may be something in that. But, as always in litigation, the proof of a point requires more than the disappointed appellant's assertion. It requires evidence; and the difficulty in the way of an appellate court in investigating such evidence and making findings on its soundness is obvious. For example, whilst allegations of bias against an employment tribunal will commonly be referred by the employment appeal tribunal to the tribunal for their comments, the practice does not entitle the appellant to compel the presence of the members of the tribunal for cross-examination on their comments.
43. The other difficulties in the way of a successful bias challenge by Dr D'Silva flow from points made in the appeal tribunal's judgment in the present case. Through no fault of their own, most lay litigants do not have a proper understanding of the legal process, or the way in which tribunal hearings are ordinarily conducted. They will usually be passionately wedded to what they would perceive as the unanswerable rightness of their own case; and many of them will or may regard any and every reaction from the tribunal that they may perceive as questioning their case, or as controlling the manner in which they wish to advance it, as displaying hostility towards the case and bias in favour of the opposite one. In many cases such litigants are merely mis-reading the perfectly ordinary, and impartial, conduct of a hearing in accordance with well-practised procedures.
44. None of this, of course, is to say that there is never any substance in a case of alleged apparent bias, although I would hope, and expect, such cases to be very rare. In the present case, however, I am not persuaded that Dr D'Silva has even begun to make good his assertion that his many complaints about the conduct of the hearing before the O'Hara tribunal add up to an arguable case of apparent bias. He points out, correctly, that the appeal tribunal did not deal with his complaint that the employment tribunal had refused to allow him to adduce the race relations questionnaires and their responses. I find it difficult, however, to know what to make of that point when Dr D'Silva did not even think it necessary to produce any of such questionnaires before me. The complaint here was again, or became at least in part, that the tribunal did not take any account of the findings in relation to this made in the original tribunal hearing. Again, however, to take such account was something it was not entitled to do. I have no reason to assume other than that the tribunal's refusal to admit the questionnaires and their responses was because of its assessment that they were not material to the issues it had to decide. In that connection, what appears to me to be of particular materiality is that none of the questionnaires was directed to the V-C against whom the relevant discrimination allegation was directed, and so their relevance to the issues before the tribunal is not apparent to me. As for all the other points that Dr D'Silva raised before the appeal tribunal and wishes to raise again before this court, I agree with the appeal tribunal that they are insufficient to enable the making of an arguable case of apparent bias.
45. I of course well understand why Dr D'Silva might regard it as unfair that he should give evidence for a day and a half, yet be confined to two hours for Mr Deman's cross-examination of the V-C (although he was actually given three hours). There is, however, no procedural rule, or requirement of justice, that the length of visits to the witness box must be the same for all witnesses, and that might be thought to be a statement of the obvious. Employment judges have a duty to exercise case management powers so as to ensure the efficient conduct of the hearings before them, and the making of directions as to the length of a cross-examination is a normal and proper part of the exercise of such powers. In any event it is not suggested that three hours was not enough for the cross-examination of the V-C. This point is one of pure form, unsupported by any substance.
46. Much of Dr D'Silva's criticism is directed at Mr Gilroy's conduct of his client's case. But it was Mr Gilroy's duty to conduct that case firmly and robustly. It may well be that some of the points he made in the course of doing so was well and truly felt by Dr D'Silva, and they may have been painful for him. But I do not, however, understand how, absent a transcript, an appellate court could begin to assess that the employment judge was or might have been at fault in failing to curb some of Mr Gilroy's alleged enthusiasm as an advocate; or how it could conclude that any such failing was evidence of apparent bias.
47. Nor do I consider that there is any arguable case of bias based on the points made by Dr D'Silva about the direction he was given as to his proposed questions for cross-examination and the arrival on the scene as his representative of Mr Deman. I can see no error of law in the way in which the appeal tribunal dealt with these matters. In his grounds of appeal, Dr D'Silva asserts that Langstaff J misunderstood his bias points based on these matters. His further explanation of them depends upon assertions of open hostility by Judge O'Hara at Dr D'Silva's retention of Mr Deman as his representative. The tribunal may well have been disappointed to find that Dr D'Silva's chosen representative was another layman, who would not be able to bring to the presentation of his case the professional skills which are so welcome to any court or tribunal. If the tribunal expressed any impatience at Dr D'Silva's choice of representative, that would have been an understandable reaction, but it is not evidence of bias.
48. There is also an assertion that on 'the issue of equality of arms, she considered Mr Deman was equal to trained Counsel, which again shows her bias.' Whether or not that particular assertion is well founded, I simply do not understand how this court can make an assessment that it, or indeed any of the tribunal's alleged conduct, amounted to a display of apparent bias. Without a transcript of what was actually said, it appears to me close to impossible for the court to embark upon the task. Dr D'Silva criticises Langstaff J for asking him what Mr Deman's reasons were for asking Judge O'Hara to recuse herself. He asks in his grounds of appeal 'How could I have known what was in Mr Deman's thought processes when he made his recusal application?' The answer is that if Mr Deman did not first take Dr D'Silva's instructions before making his application (which would be a surprising omission), one might at least have expected Dr D'Silva to have asked him afterwards why he made it. I cannot see why Langstaff J was wrong to ask a question which he was entitled to assume Dr D'Silva would be able to answer.
49. Ultimately the question is whether the fair-minded and informed observer would have concluded that the employment tribunal's conduct of the hearing was such that there was a real possibility that the tribunal was biased. On the basis of the material put before and assertions advanced by Dr D'Silva, I am unpersuaded that Dr D'Silva has any real prospect of persuading the full court that the appeal tribunal erred in law in its conclusion that there was no arguable case of bias.
50. I therefore refuse permission on the bias ground too. In the result, I refuse permission to appeal on all grounds.