Deman v Association Of University Teachers

An appeal against a temporary stay may become academic when the stay has expired and the underlying restriction has been withdrawn. In that event, the appellate court need not determine an issue with no continuing practical consequence.

Permission should also be refused where the tribunal was entitled on the material before it to make the stay order, and the proposed grounds disclose no arguable error of law, procedural unfairness or bias. The Human Rights Act does not support a fair-hearing complaint where the absence of a hearing resulted from the applicant’s failure to take steps to pursue the claim.

Mr Deman brought proceedings against the Association of University Teachers in the Employment Tribunal alleging race and sex discrimination and victimisation. The Employment Tribunal imposed a one-month stay while a possible restriction order was considered, with provision for the proceedings to be reinstated if no application was made under section 33 by 3 October 2000.

The restriction was withdrawn by at least 9 February 2001. The Employment Appeal Tribunal dismissed the appeal against the stay as academic, held that the Employment Tribunal was entitled to make the order, rejected an allegation of bias, and later declined a review. Mr Deman applied to the Court of Appeal for permission to appeal. The central issue was whether any arguable basis remained for challenging the EAT’s decision.

Lord Justice Pill, sitting alone, refused the application for permission to appeal.

1. The Employment Tribunal’s stay was an order of limited duration. The possible restriction had subsequently been withdrawn. The EAT was therefore entitled to regard an appeal against the stay as academic. The Court of Appeal likewise saw no continuing practical issue requiring determination.
2. In any event, the Court agreed with the EAT that, on the material before it, the Employment Tribunal was entitled to make the stay order. The proposed challenge disclosed no arguable error of law.
3. The complaints concerning documents, the handling of the application, threats and alleged bias had no merit. The EAT had properly dealt with the matter, and there was no evidence of bias or the appearance of bias.
4. The reference to the Human Rights Act did not assist. There was no basis for contending that Mr Deman had been denied a fair hearing. If the substantive Employment Tribunal claim had not been heard, that was because he had failed to take steps to pursue it. Whether the tribunal would later consider the claim on its merits was a matter for the tribunal, on which the Court expressed no view.

The formal order was: application refused.

• Court of Appeal (Civil Division): On 1 March 2002, refused permission to appeal against the EAT’s decision: [2002] EWCA Civ 426.
• Employment Appeal Tribunal: Dismissed the appeal against the Employment Tribunal’s stay as academic, held that the Employment Tribunal was entitled to make the order, rejected the allegation of bias, and declined a review on 14 August 2001.
• Employment Tribunal: Granted a one-month stay of Mr Deman’s discrimination and victimisation proceedings pending a possible restriction application, with provision for reinstatement if no application was made under section 33 by 3 October 2000.