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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Deman v Leeds Metropolitan University & Ors [2003] UKEAT 0768_02_1401 (14 January 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0768_02_1401.html Cite as: [2003] UKEAT 0768_02_1401, [2003] UKEAT 768_2_1401

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APPEARANCES

 

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


 


MR RECORDER LUBA

1. This is an adjourned preliminary hearing of an appeal brought by Mr Deman against a decision of the Employment Tribunal sitting at Leeds. By their reserved decision and for the Extended Reasons that they gave the Employment Tribunal dismissed claims brought by Mr Deman of both racial discrimination and victimisation.
2. Those claims were brought against Leeds Metropolitan University and three individual officers of that University. As the Employment Tribunal record at the outset of their Extended Reasons the substance of Mr Deman's complaint was in relation to two decisions of the Respondent University and its officers. First, a decision notified on 20 June 2001 that he was not to be appointed to the post of Senior Lecturer in Financial Strategy and Finance for which post he had applied. Second, their decision notified on 23 July 2001 that he was not to be appointed to the post of Senior Lecturer in Economics to which position he had also sought to be appointed. Mr Deman was not employed at that stage by Leeds Metropolitan University. He was an external applicant and is indeed an academic himself.
3. The Employment Tribunal gave full and careful reasons for the decision which they reached. We pay tribute to the helpful, concise and yet thorough way in which the Tribunal have recorded their reasons. The hearing before the members of the Tribunal had occupied four hearing days. Before we come to the detail of Mr Deman's appeal in this case we would respectfully observe that this particular Employment Tribunal discharged admirably the particular task that had been placed upon it. It heard the case as presented to it. It listened to the witnesses and considered their evidence. It examined the documents. It determined the facts and it drew inferences from those facts. As is evident from the structure and content of the Extended Reasons, it properly considered the relevant law relating to discrimination and victimisation and it directed its attention to the leading relevant authorities on those questions (in particular the cases of King v The Great Britain China Centre [1991] IRLR 513 and Anya v The University of Oxford [2001] IRLR 37. Given the particular nature of the complaints brought by Mr Deman, that is complaints of racial discrimination and victimisation, the Employment Tribunal's Extended Reasons show that they looked carefully: at the recruitment processes and the procedures adopted; at the handling of this particular Applicant's application; and at the circumstances – comparatively - of the Applicant and the successful candidates.
4. As we have indicated, they rejected the complaints made by Mr Deman. By a Notice of Appeal dated 10 July 2002 Mr Deman alleges that the Tribunal reached its decisions in error of law or more particularly, by various errors of law. The Employment Appeal Tribunal office have dealt with this matter in the way familiar in cases where an allegation of bias by the Tribunal is made. An allegation of bias is made in the Notice of Appeal in this case. An Affidavit of Mr Deman and a further Affidavit of a Mr Andrew Graham were prepared and submitted fully particularising, at least as fully as those gentlemen felt able, the nature of the allegation of bias in this case. Those materials were sent to the Employment Tribunal Chairman who provided comments upon them. Subsequently, as a result of the first Preliminary Hearing fixed for this case and the Order made on that date, a list of issues or questions were prepared for the Employment Tribunal Chairman with a view to the Chairman providing further assistance to this Appeal Tribunal in determining this case. We have the benefit of a reply from the Chairman dated 8 January 2003 although it is fair to indicate that the Tribunal Chairman did not feel able to give helpful assistance by reference to the questions posed in the Appellant's Counsel's formulation. We have however carefully considered all of the questions, the responses, the Affidavits and the Chairman's earlier comments.
5. Before us today, Mr Deman has been ably represented by Mr John Davies of Counsel. He, it was, who formulated the questions that the earlier Employment Appeal Tribunal on 15 November 2002 had required be drafted. He has apologised to us for the fact that they were not settled in the time directed by our predecessor Tribunal. We accept his apology. The failure to comply with the original time limit forms no part of our assessment of the merit of this case.
6. Mr Davies has put forward a helpful skeleton argument on which he has elaborated with oral submissions before us this afternoon. It is right to say that, in relation to both the complaints of racial discrimination in relation to selection and in relation to victimisation, the primary ground of appeal is that the Employment Tribunal did not give Mr Deman a fair and proper hearing, nor fairly and properly reach a decision on his complaints, because they were biased. Very properly Mr Davies' skeleton argument sets out particulars of the bias alleged and those particulars are prefaced at paragraph 3 of his skeleton argument with what we take to be a correct treatment of the relevant test in law as to whether this Appeal Tribunal would, on an appeal, interfere with an Employment Tribunal's decision on the ground of bias.
7. We have carefully considered, in turn, each of the elements of the skeleton argument as elaborated upon by Mr Davies in his helpful oral submissions this afternoon. As is the case with many allegations of bias against the Employment Tribunal the structure of the complaints in this case is by reference to what is included in, or omitted from, the Extended Reasons. In particular, for example, this is demonstrated by the first two items in the list at paragraph 4 of Mr Davies' skeleton argument. Paragraphs 4.1 and 4.2 invite the Appeal Tribunal to look at the 'phraseology' of paragraphs 3 and 4 of the Extended Reasons and to deduce from them some intimation, or indication, of a tone suggestive of an approach of bias by the Employment Tribunal. We have carefully examined paragraphs 3 and 4 as indeed we have carefully examined the remaining paragraphs of the Extended Reasons. We are wholly unable to detect any 'phraseology' or tone which would give rise to the least inference that the Tribunal had been biased in its approach to Mr Deman. In particular, when pressed to demonstrate this point to the Appeal Tribunal at the hearing this afternoon in relation to, for example, paragraph 4, Mr Davies' complaint turned from one of being a complaint of 'phraseology' into a complaint relating to certain matters being referred to by the Tribunal at all even though they were matters of factual history. In those circumstances we take the view that the point as to 'phraseology' certainly cannot be relied upon to sustain an argument that the Tribunal was guilty of bias.
8. A separate point, made at paragraph 4.3 of the skeleton arguments, relates to the Employment Tribunal's treatment of the witness statement of a Professor Hanchete. That was placed before them by the Appellant and is noted by the Employment Tribunal in their Extended Reasons as having been before them. The Tribunal very properly indicate that, in the absence of an opportunity to hear Professor Hanchete give oral evidence and in the absence of any opportunity for the Respondent to cross-examine Professor Hanchete, the statement was to be given only such weight as the Tribunal considered appropriate. The assertion for Mr Deman, made by Mr Davies this afternoon, is that the failure to ever again mention in the course of their decision Professor Hanchete's evidence, or to explain how (if at all) it assisted the Tribunal, is a further manifestation that they were unfairly dealing with Mr Deman's case. We reject that assertion categorically. As is plain, the Tribunal were quite satisfied on the other findings that they made that there was no evidence of race discrimination or victimisation in what occurred in this case nor any matters giving rise to any inference that there had been discrimination or victimisation.
9. Next, at paragraph 4.4 of the skeleton argument (again helpfully supplemented in oral submissions), Mr Davies draws attention to a phrase at the beginning of paragraph 11 of the Extended Reasons where the Tribunal shift from a description of earlier procedural steps to the consideration of the matters at large before them at the hearing. It is suggested that the appearance of the first phrase in the first sentence of paragraph 11 is in some sense a "shrugging-off" of important matters which again indicates that the Tribunal was biased in its approach or patronising in its tone. We would describe that contention as impossible to sustain. It is quite plain, from the context in which the phrase appears, that the Tribunal was simply giving a description of a watershed in its Extended Reasons between a description of what had occurred before the hearing and what had occurred at the hearing and afterwards.
10. As a next "particular" of an alleged discriminatory or biased approach ("biased approach" is the proper way in which Mr Davies put his case, and correctly so described it) or as another "instance", attention is drawn to the way in which the Tribunal described what occurred at the hearing. In particular, their record that Mr Deman was 'argumentative on occasion with the witnesses'. Again we can see nothing in the recording of that observation which suggests bias on the part of the Tribunal Chairman or members.
11. At paragraph 4.6 of the skeleton argument, the point is made that the Employment Tribunal found nothing helpful in the history of earlier unsuccessful job applications made to the University by Mr Deman when coming to consider whether he had been wrongly treated on the particular occasion of his latest job applications. In our view, the Employment Tribunal correctly directed themselves to the question of the relevance of the previous unsuccessful applications and gave proper and cogent reasons for proceeding in the way they did. They properly and correctly directed themselves to the leading authorities of King and Anya on the extent to which earlier matters were to be taken into account.
12. At paragraph 4.7 of the skeleton argument, as a further instance or indicator of potential or actual bias, Mr Davies refers to a substantial part of the Tribunal's reasons in which they find that the candidates who were successful were better qualified because they held doctorates. This, in our submission is to lift out just one aspect or passage from a compendium of reasons upon which the Tribunal founded for their conclusion (that the process of considering Mr Deman's applications had been discharged without any evidence of discrimination ora any matter from which an inference of discrimination could be drawn). Certainly there is nothing in that material which justifies or substantiates an inference or assertion of bias on the part of the Tribunal.
13. Finally, at paragraph 4.8 of the Skeleton Argument, the Tribunal is criticised - and again this is said to be an indication of its bias - for failing to correctly record whether the individuals involved in the recruitment process adopted by the Respondents had acted upon the advice of a Mr Aslam (by whom they were advised to exclude consideration of the previous history of Mr Deman in relation to litigation). We reject entirely the contention that that failure even if it was a failure, can possibly amount to an indicator of bias on the part of the Tribunal. For reasons to which we shall return, we do not believe there is any criticism or failing to be associated with the Tribunal's handling of that matter in any event.
14. Therefore, having taken individually each of the allegations of bias made, we have stood back to see whether as a whole, whether in the skeleton argument or oral submissions of Mr Davies or on any of the other material put before us, it can possibly be said that there is a reasonable argument that this particular Tribunal exhibited bias in the sense of the proper legal test to which we have already referred (in paragraph 3 of Mr Davies' skeleton argument). We are unhesitatingly, and unanimously, of the view that there is nothing in this allegation of bias at all and certainly nothing which would justify this case going ahead to a full hearing.
15. That leaves a compendium of other potential errors of law summarised by Mr Davies in his skeleton argument at paragraph 5 and drawing on the much longer formulation in the Notice of Appeal. We have carefully examined each of the allegations of error of law by the Tribunal. In our considered view, none of them are arguable and none of them have any reasonable prospect of success.
16. That leaves, quite discretely, a separate point in relation to victimisation. Mr Davies, in his skeleton argument at paragraph 6, abandons one of the aspects of the complaint of victimisation but makes a separate and discrete point to which we have referred earlier. That is that a Mr Aslam gave advice to the recruitment panel members that they should disregard the history of previous disputes between Mr Deman and the University of Greenwich. Mr Davies contends that the Tribunal is finding, that that advice was given, was insufficient. What they needed, to satisfy themselves, was whether the recruitment panel members had taken this advice on board. In our view that is to ask too much of any reasonable Employment Tribunal. This Tribunal, for the reasons that they gave, quite satisfied that there was no discrimination against Mr Deman in the selection process for either post and that there was nothing in the facts or circumstances from which any inference of victimisation could be drawn.
17. In those circumstances we do not see how it adds in any way to this matter to draw attention to the small point which Mr Davies draws attention to paragraph 6 of his skeleton argument. It therefore follows that, having carefully examined all of the arguments set out in the skeleton argument and having listened carefully to Mr Davies' helpful oral submissions, we have concluded that there is no reasonable prospect of success with any of the grounds of appeal advanced and on that basis we unhesitatingly dismiss this appeal.