Deman v London Business School & Anor

An appeal from an Employment Tribunal lies only on a question of law. Under rule 9(3) of the 1993 Rules of Procedure, a tribunal has a very wide discretion either to adjourn a hearing or to dispose of an absent applicant’s case, subject to considering the required written materials before dismissal. An appellate court should not interfere where the tribunal directed itself correctly and its decision involved no error of law and was not plainly wrong.

Mr Suresh Deman brought complaints of racial discrimination and victimisation against London Business School and Professor G Bains. The Employment Tribunal refused an adjournment when he failed to attend, considered the papers, dismissed the complaints and made a costs order. His application for review was unsuccessful. The Employment Appeal Tribunal dismissed the substantive appeal for want of any error of law, leaving the costs issue to proceed, and later refused permission to appeal. The Court of Appeal considered allegations concerning adjournment, unfairness, bias, perversity and procedural non-compliance, and whether any arguable question of law arose.

Application refused. Lord Justice Mummery refused both the adjournment of the Court of Appeal hearing and permission to appeal. The application was considered on the papers because Mr Deman neither attended nor arranged representation.

1. Scope of appellate jurisdiction. Appeals from an Employment Tribunal, whether to the Employment Appeal Tribunal or the Court of Appeal, are confined to questions of law. Dissatisfaction with factual conclusions or procedural decisions is insufficient without an error of law.
2. Discretion under rule 9(3). Rule 9(3) of the 1993 Rules of Procedure, also referred to in the judgment as regulation 9(3), gave the Employment Tribunal a very wide discretion. It could postpone the hearing or dismiss or otherwise dispose of an application in the absence of an applicant. Before dismissing, it had to consider the originating application, the notice of appearance, relevant written representations and any written answer.
3. Application of the discretion. The Tribunal correctly directed itself on the scope of that power. It considered the relevant pleadings and documents, and concluded that Mr Deman’s absence meant that there was no evidence on which racial discrimination could be established and that the claims appeared unlikely to succeed. Its refusal to adjourn and dismissal of the complaints were neither erroneous in law nor plainly wrong.
4. Disposition. The Employment Appeal Tribunal was right to dismiss the substantive appeal, subject to the separate costs issue. No arguable error of law justified permission to appeal. The applications were refused.

• Court of Appeal (Civil Division). On 6 February 2001, in [2001] EWCA Civ 196, the court refused the adjournment application and permission to appeal.
• Employment Appeal Tribunal. At a preliminary hearing on 13 December 1999, the appeal was dismissed except in relation to costs. Permission to appeal was refused on 23 March 2000.
• Employment Tribunal. The Tribunal refused an adjournment, dismissed the discrimination complaints in the applicant’s absence and made a costs order.