United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN DAVIES (Of Counsel) Instructed by: Messrs Thomas Dunton Solicitors 217-219 High Street Orpington ER6 ONZ


 


MR RECORDER J LUBA QC

1. On 8 March 2002 the Employment Tribunal at Leeds, (Mr Grazin, Chairman, presiding) gave Extended Reasons for its dismissal of claims made by Mr Suresh Deman of racial discrimination, sex discrimination and victimisation. Those claims were made against two Respondents, the University of Bradford and Professor Grace Alderson.
2. These claims arose from an application that Mr Deman, who is an academic, had made to the University of Bradford in early 1999. The application he made was for appointment to an academic position at the Management Centre of the University. There were three potential levels of academic appointment available, professorship, senior lectureship and lectureship. More than one post was available at each of those levels.
3. We do not need to deal with the application made for a professorship for the reasons given in the Extended Reasons delivered by the Employment Tribunal (Paragraph 35). That matter had already been determined on the basis that any complaint relating to it was out of time. Accordingly, the Employment Tribunal focussed only on the consideration of the complainant Mr Deman's applications for appointment at senior lectureship and lectureship level.
4. In relation to those applications a short listing meeting was held by the University on 25 March 1999 and Mr Deman's application was before that meeting in relation to both posts. In the event he was not short listed for the senior lectureship. In relation to that he makes a complaint. He was short listed for a lectureship appointment. He was interviewed and examined but in the result his application for a lectureship post was rejected. Other candidates were appointed. He asked the University for and was given reasons for his non selection. It was treatment of those applications that he had made to the University and the involvement of Professor Grace Alderson in them that brought about these complaints which were heard by the Employment Tribunal.
5. The Tribunal considered the case over some six and a half days and reserved its decision. It gave lengthy and detailed Extended Reasons. First it set out the history of the proceedings before it. That is dealt with at paragraphs 1-15 of the Extended Reasons. It then gave a lengthy consideration to the relevant facts. Its findings of fact are set out at paragraphs 16-54 inclusive. The Employment Tribunal next directed itself to the relevant law and rehearses, at paragraphs 55-56 of its Extended Reasons, the approach it took to the relevant law. Finally, its conclusions are recorded at paragraph 57 in relation to the complaints against the first Respondent and at paragraph 58 in relation to the second Respondent. For the reasons that it gave in paragraphs 57 and 58 respectively the Employment Tribunal rejected each and everyone of the complaints which Mr Deman had made against the two Respondents.
6. By a Notice of Appeal dated 9 March 2002, occupying some sixteen A4 pages and forty five closely typed paragraphs, Mr Deman alleges that the Tribunal erred in law or, more properly, had made many and various errors of law in dealing with his case. The Employment Appeal Tribunal gave directions for the appeal to come on for a Preliminary Hearing. It did so on 15 November 2002 when it was adjourned to be heard on today's date.
7. Since that adjournment we have been provided, in considering this case, with the helpful skeleton argument of Mr Davies who appears for the Appellant, Mr Deman. That skeleton argument is dated 17 December 2002. Additionally, and through the good offices of Mr Davies, we have been shown written submissions prepared by Mr John Cavanagh QC who was instructed in the Employment Tribunal on behalf of the Respondents and who makes those written submissions in that capacity. His written submissions are framed in the light of the new and current practice direction of the Employment Appeal Tribunal as to written submissions for consideration at a Preliminary Hearing. We have taken careful regard to both those written submissions and the skeleton argument of Mr Davies. In addition, we must at the outset of this judgment record the fact, that because allegations of bias against the Employment Tribunal were made in the Notice of Appeal the Appellant was required to substantiate or particularised those allegations more fully in Affidavit evidence. Three Affidavits were put in by Mr Deman, a Mr Graham and a Mr McCue. In the usual way, those Affidavits were passed to the Employment Tribunal Chairman for comment and his comments are dated 15 November 2002. That date, it will be observed, is the same date as the original date listed for this Preliminary Hearing and perhaps goes to explain why the matter was adjourned.
8. We turn now to the hearing which has been conducted before us today. Mr Davies, for Mr Deman, has helpfully and skilfully, if we may respectfully say so, developed his skeleton argument in oral submissions before us today. He has invited us to treat the grounds of appeal as in essence recast into the grounds developed in his skeleton argument. We have proceeded to consider the case on that basis. The first cluster of grounds set out in skeleton argument (at paragraph 6 and its particular sub paragraphs) relate to the contention that Tribunals' proceedings and/or decision were tainted by such bias that Mr Deman was deprived of a proper and fair consideration of his complaints against the two Respondents. Such an allegation is easy to make but difficult to meet. It is a notoriously difficult assertion to establish by direct evidence.
9. As we have indicated, the Appellant was required to particularise those matters said to be indicators of a biased approach by the Employment Tribunal. In Mr Davies' skeleton argument he has met that task of setting out specific indicators or we should say, more properly, specific alleged indicators. He has dealt in the skeleton and in oral argument with each specific incidence of a remark made or step taken by the Tribunal on which he relies to build the case of bias. He has dealt with the Employment Tribunal Chairman's observations on those points. He asserts that whether the points are taken individually (at least in relation to the strongest of them) or cumulatively they are sufficient to arguably establish a case of bias. We have reminded ourselves that the question on the proper approach to establishing a case of bias is that one must ask whether, on an objective appraisal, the material facts give rise to a legitimate fear that the Tribunal might not have been impartial.
10. We are satisfied that it is arguable that, on the material to be deployed in this appeal, that threshold may be met. It is not for us to go beyond that and indicate that the appeal will or even may succeed. We say nothing more about the merits of the "bias" aspect of the appeal. Whether it succeeds or fails after full argument is a matter for another Employment Appeal Tribunal on another day.
11. We then turn to the other grounds upon which Mr Davies for Mr Deman argues that the appeal should be permitted to proceed. He has helpfully grouped the remaining potential grounds of appeal into two clusters or classes in his skeleton argument. First, at paragraph 7 of his skeleton argument, he contends for a miscellany of what are said to be arguable errors of law. These fall under the general umbrella of an assertion that the Employment Tribunal adopted too narrow a view of the matters which it should take into account and which may assist it in determining Mr Deman's complaints. More particularly, it is first said at paragraph 7.1, that the Tribunal may have misdirected itself on the proper approach to the law in a race discrimination case as witnessed by the use of a phrase "racism is not terribly helpful. I am not looking for racism".
12. We are satisfied, on consideration of the Tribunal's decision as a whole, that that contention is quite hopeless. The Employment Tribunal properly directed itself to the statutory test and applied it. The remark made can be relied on, if at all, only in support of a case on bias. It does not, in our view, even arguably suggest a misdirection of law when considered in the context of the Tribunal's decision as a whole.
13. Next, at paragraphs 7.2 and 7.3 of the skeleton argument, it is suggested that the Employment Tribunal artificially limited the areas of enquiry made into the relevant background which may have lain behind the complaints and concerns of Mr Deman that were to be adjudicated. We reject that contention also as unarguable. The Tribunal had a duty to run its hearing in such manner as to enable the parties to properly put their case and to enable the Tribunal to properly consider it. Nothing in any of the specific complaints made in 7.2 and 7.3 suggests that the Employment Tribunal stepped outside the scope of the reasonable use of its powers to consider and limit attention to matters which were directly relevant.
14. It is right to record at this point that one of the specific matters relied upon is the refusal to consider or read Mr Deman's written submissions which were received by the Employment Tribunal office only after the members of the Tribunal had reached a conclusion on the matters before them. We have carefully considered what Mr Davies has had to say about the sequence of events in relation to those written submissions and the other points that he deploys by reference to them. We are quite satisfied that there was no procedural irregularity by the Employment Tribunal in its handling of that matter or of those written submissions.
15. Next, at paragraph 7.4 of the skeleton argument, it is suggested that the Tribunal misdirected itself in its treatment of the important decision in the Anya case, Anya v University of Oxford [2001] ICR 847. Not only do we disagree with that submission but we would respectfully describe the assertion as untenable. The Tribunal gave a reasoned and rational explanation, in paragraph 25 of its Extended Reasons, as to the approach it took to the Anya case and we can see nothing wrong in its treatment of that decision.
16. Next, at paragraph 7.5 of the skeleton argument, it is suggested that a finding by the Employment Tribunal that the employees of the University concerned in the recruitment process relevant to Mr Deman were "honest and caring employees" was a finding which was itself insufficient to answer the possibility of unconscious or subconscious discrimination. In our view reliance on the use of that phrase lifts one small passage wholly out of context from the Extended Reasons given on this point at paragraph 5.7(i) by the Employment Tribunal. In our view that paragraph amply demonstrates the reason why the Tribunal took the view it did and nothing in this point in our view suggests any arguable error of law.
17. Finally, at paragraphs 8, 9 and 10 of his Skeleton Argument, Mr Davies groups the remaining grounds of appeal under the heading of "perversity". He brings together what are the remaining paragraphs of the original notice of appeal and he contends that these many points whether taken individually or together, indicate that the Tribunal did not properly discharge its function and reached conclusions which were perverse, most particularly in the sense that the findings that it made were not substantiated by any proper treatment of the evidence. By way of indicator of the strength of those submissions Mr Davies puts, at paragraph 9 of his skeleton argument, an instance of perversity which he describes as the most striking single instance. That is that the Employment Tribunal dealt with the fact that one person at least, a Professor Sparkes, had known of the previous history of dealings between Mr Deman and academic institutions and had recorded a comment "vexatious litigant at Belfast. In dispute with Bradford over failed PhD,". The thrust of Mr Davies submissions is that, in the light of that comment existing as a matter of record it must be the proper conclusion that that remark was allowed to influence or play some part in the treatment of Mr Deman's application for appointment.
18. The Employment Tribunal expressly considered that point. It heard the relevant witnesses for the Respondent. It accepted their account. The assertion of perversity on this point is essentially a submission that the Tribunal ought properly to have concluded that the witnesses were lying or at least untrustworthy. This is a contention which again we would simply describe as unarguable, notwithstanding the crisp way in which it has been put to us by Mr Davies. The Employment Tribunal itself was in the best position to apply a common sense approach and to test the truthfulness or otherwise of the evidence of the Respondents' witnesses.
19. In conclusion we find that none of the grounds of appeal advanced, save those pertaining to bias, have any reasonable prospect of success at a full hearing or are even arguable. Accordingly, we will permit this appeal to go forward to a full hearing but limited to the bias ground. We will now consider directions as to how the appeal should proceed.