Deman v Association of University Teachers

On an application for permission to appeal, it is enough that the proposed appeal has real prospects of success. Permission may be granted on all grounds where some are weaker if the principal issues require a full hearing. In a discrimination appeal, arguable deficiencies in the Employment Tribunal’s reasons, its treatment of evidential inferences, and its apparent focus on conscious rather than unconscious discrimination justified permission. The real focus of the appeal remains the Employment Tribunal’s decision, rather than the Employment Appeal Tribunal’s reasons. Permission does not determine liability. If fact-sensitive inferences require reconsideration, the likely remedy is remission for a complete rehearing before a differently constituted tribunal.

The applicant, a probationary lecturer, complained that the respondent association had discriminated against him on racial grounds and victimised him by refusing legal assistance for proceedings against Queen’s University, Belfast. The Employment Tribunal dismissed the complaints in extended reasons dated 23 April 1999. The Employment Appeal Tribunal, presided over by Mr Justice Lindsay, dismissed the appeal on 22 April 2002, finding no error of law. The applicant sought permission to appeal on grounds concerning the adequacy of the Employment Tribunal’s reasons, the evidential basis for inferences of discrimination, and failure to consider unconscious discrimination. The central question was whether those grounds disclosed real prospects of success.

1. Application granted. Mummery LJ was satisfied that the proposed appeal had real prospects of success. Although the amended grounds were framed principally as errors by the Employment Appeal Tribunal, the substantive question for the Court of Appeal would be whether the Employment Tribunal had erred in law.
2. Permission was appropriate on all the amended grounds, although some were stronger than others. The principal issues requiring a full hearing were the Employment Tribunal’s statement in paragraph 21 of its extended reasons that it could find no evidence from which an inference of race discrimination or victimisation could be drawn, and whether it had considered unconscious discrimination. The latter issue arose because paragraph 20 referred only to the possibility of conscious racial discrimination.
3. The grant of permission did not determine liability. If the appeal succeeded, the matter would probably require an entire rehearing before a differently constituted tribunal. The Court of Appeal could not itself resolve the necessary questions of inference from the facts, and the same tribunal could not appropriately be asked to reconsider them.
4. Mummery LJ also noted that costs in the Court of Appeal were governed by a different regime from that applying in the Employment Tribunal and Employment Appeal Tribunal, and that an unsuccessful appeal would often result in a costs order against the appellant.

• Court of Appeal (Civil Division): On 1 November 2002, Mummery LJ granted permission to appeal.
• Employment Appeal Tribunal: On 22 April 2002, the tribunal dismissed the appeal, holding that there was no error of law in the Employment Tribunal’s decision.
• Employment Tribunal: In extended reasons dated 23 April 1999, the tribunal dismissed the claims of race discrimination and victimisation.