MR S DEMAN v VICTORIA UNIVERSITY OF MANCHESTER [1999] UKEAT 1375_98_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1375_98_2809Case No Appeal No. EAT/1375/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S DEMANAPPELLANTVICTORIA UNIVERSITY OF MANCHESTERRESPONDENT
Before
His Honour Judge Peter Clark Mr D Chadwick Mr S M SpringerDate 28 September 1999
[1]APPEARANCES For the Appellant THE APPELLANT NOT PRESENT NOR REPRSENTED For the Respondents MS J EVANS (Solicitor) Messrs Addleshaw Booth & Co Solicitors 100 Barbirolli Square Manchester M2 3AB JUDGE PETER CLARK : By an Originating Application presented to the Manchester Employment Tribunal on 17th June 1998, the appellant, Mr Deman, complained of racial discrimination, victimisation and breach of the Equal Treatment Directive on the part of the respondent, Victoria University of Manchester, in not selecting him for interview for the post of senior lecturer/lecturer in Accounting and Finance for which he had applied in February 1998.[2]By their Notice of Appearance the respondent disputed the claim on its merits. They said that the appellant was not short-listed for interview in March 1998 because he failed to comply with the requirements of the post as set out in the person specification.[3]Further, in a covering letter dated 9th July 1998 solicitors for the respondent took the point that the complaint was out of time; that this was but one of a number of complaints which he has brought against a number of universities before Employment Tribunals; that the claim shall be struck out as being frivolous and vexatious under Rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993 , and asked for a pre-hearing review on the basis that the claim had no reasonable prospect of success.[4]The complaint came on for hearing before a full Employment Tribunal at Manchester under the chairmanship of Miss E R Donnelly on 30th September 1998. The appellant attended; the respondent did not appear and was not represented.[5]The tribunal believed that the hearing was convened to hear the following questions:(1) whether the claim was time-barred;(2) whether the claim should be struck out under Rule 13(2)(d) on the respondent's application, and(3) for a pre-hearing review.[6]It transpired that the appellant had received notice only as to the preliminary issue on the question of limitation. He was not prepared to deal with the other two matters, having not received a notice of hearing dated 1st September 1998 dealing with those matters.[7]The Chairman observed that perhaps the respondent had also not received the notice of hearing, which might explain their absence. We have been told that that is not in fact the case, but the Chairman was not to know it at the time. We pick up what happened next from the tribunal's reasons promulgated on 22nd October 1998. The Chairman proposed to the two lay members and the appellant that the matter be adjourned. Both members agreed. The appellant wished to proceed with the limitation point. In the event the hearing was adjourned until 11th November 1998 for all matters to be dealt with. That is the order made by the tribunal and against which this appeal is brought by Mr Deman by a Notice with extensive grounds of appeal dated 7th November 1998.[8]We are told by Ms Evans, who appears before us on behalf of the respondent today, that the further hearing fixed for 11th November 1998 was adjourned. It was re-fixed for 17th December 1998. Again it was adjourned on the appellant's application, citing his ill health. Thereafter the hearing, designed to deal with all three matters to which we have referred, was adjourned generally pending the outcome of this appeal.[9]The appeal was first listed for hearing on 23rd June 1999. That date was vacated on the appellant's application. In allowing that adjournment the Registrar indicated by letter of 8th June that no further adjournment would be allowed. The case was re-listed for today, 28th September.[10]On 18th September the appellant applied for an adjournment. He enclosed a medical certificate from a general practitioner, Dr N A De-Silva, dated 17th September, which stated that the appellant should refrain from work for two weeks. The diagnosis of his condition was "Anxiety State".[11]That application was opposed by the respondent's solicitors by fax dated 22nd September. They pointed to the delay in progressing the claim before the Employment Tribunal and the fact that this was the appellant's second application for an adjournment of his appeal against an adjournment order made by the Employment Tribunal 12 months earlier.[12]On 23rd September the Registrar refused the application for an adjournment. By letter dated 24th September the appellant renewed his application for an adjournment. He has not attended today. Ms Evans appears and opposes the application. She asks us to deal with the appeal so that further unnecessary expense is spared and the case below progresses.[13]We have weighed the interests of both parties. We bear in mind that this is an appeal against a postponement order only. As a result the matter has been seriously delayed. The appellant has set out his case on appeal in considerable detail in his Notice of Appeal. His ground for seeking an adjournment is ill health; however, there is no medical certificate or evidence to show that he is unable to attend this hearing as opposed to attending for work. On the respondent's side they will be put to yet further expense if the matter is again adjourned. They want to get on with the substance of the matter. Their case on appeal is also set out fully in a skeleton argument prepared by Counsel, Mr Clive Sheldon.[14]In all the circumstances we have concluded that the interests of justice require that we determine the appeal today.[15]We turn now to the appellant's ground of appeal and the response by the respondent. (1) The appellant complains that in conducting the hearing on 30th September 1998 the Chairman, Miss Donnelly, failed to follow guidelines laid down by Morison P in Tchoula v Netto Foodstores (EAT/1378/96 – 6th March 1998 – Unreported) . In particular, the President's observation that many people from ethnic minorities distrust the judicial system. Employment Tribunals should be careful to give no grounds for the belief that the case has not been approached even-handedly. Care should be taken to refrain from comment which might be taken by a litigant as a confirmation of his or her worse fears. The comment allegedly made by the Chairman to which the appellant takes exception is said to be this remark:
"Mr Deman don't look at the lay members. Look at me. I decide here and not the lay members."
The Chairman does not accept that she made that remark. What is said in the tribunal's reasons is this:
"… the applicant addressed his comments to the black member of the Tribunal, Mr Jussan, and ignored the Chairman and the white member of the Tribunal, Mr Yeates. The Chairman asked the applicant to address her as Chairman …"
We accept the Chairman's account. There is nothing untoward in that remark. On any view such an observation does not of itself give grounds for setting aside the tribunal's decision. (2) Bias or the appearance of bias/perversity This allegation is based on the affidavit of a friend of the appellant, Mr Melidis, who attended the hearing. Having read that affidavit and an affidavit sworn by the appellant in this appeal, we are satisfied that there is nothing there raised which could give rise to an appearance of bias by the tribunal and in particular the Chairman, against the appellant. (3) The Chairman decided to adjourn the proceedings without consulting the lay members of the tribunal. That is not what happened on the Chairman's account. We have no reason to disbelieve it. In any event, the order postponing the hearing is the order of the full Employment Tribunal. (4) The tribunal was wrong to list the three preliminary matters without first ascertaining the facts, if necessary after discovery orders are made. We reject this contention. A pre-hearing review, by definition, takes place before evidence is heard. The application to strike out must be based on the pleadings. Limitation points are regularly taken in advance of any substantive hearing on the merits. We can see no basis for impugning the tribunal's decision to re-list all three matters for hearing together.[16]It follows, in our judgment, that the tribunal's order fell within the proper exercise of their discretion. There was no breach of natural justice. This appeal is dismissed.