Deman v University of Greenwich

Permission for judicial review may be refused where a challenge to disciplinary proceedings is brought after excessive delay. A disciplinary panel may proceed in an employee’s absence where, in the circumstances, it is entitled to conclude that the employee could attend and has been given a fair opportunity to be heard. An internal appeal may also be declined where the employee fails to pursue an offered hearing promptly. The availability of an alternative Employment Tribunal remedy is a relevant consideration, although it is not necessarily an absolute bar to judicial review.

The applicant sought permission to appeal against Mr Justice Sullivan’s refusal of permission to bring judicial review proceedings against three decisions of his former employer, the University of Greenwich. The decisions concerned his summary dismissal following disciplinary proceedings, the refusal to proceed with an internal appeal, and confirmation of that refusal.

Mr Justice Scott Baker had refused permission on paper. The renewed application concerned alleged procedural impropriety, failure to consider medical evidence, denial of a fair hearing, human rights issues and the constitution of the disciplinary panel. The central issues were whether the challenges were arguable, whether the panel could proceed in the applicant’s absence, and whether the university had been entitled to reject the delayed internal appeal.

The renewed application for permission to appeal was refused.

1. The proposed challenge to the constitution of the disciplinary panel and the procedure by which it reached its November 1999 decision was brought much too late. The delay was fatal to those grounds. The court also agreed that the availability of proceedings before the Employment Tribunal was relevant to the permission decision, particularly where litigation involving the same issues was already underway.

2. The disciplinary panel was entitled to proceed in the applicant’s absence. It had considered the medical certificate relating to his university duties, but was entitled to conclude that he was sufficiently well to attend, having regard to his ability to conduct other professional business and to attend an Employment Tribunal. In the circumstances, the applicant had not been denied a fair hearing.

3. The internal appeal had been scheduled for January 2000. After an adjournment request, the applicant’s solicitors ceased acting and no response was received for a prolonged period. A renewed request was not made until August 2000. The university was entitled to regard that delay as unreasonable. Universities must make staffing and budgetary arrangements and decide what steps follow a dismissal; a person seeking reinstatement must pursue an appeal promptly.

4. The September 2000 decision, confirmed in October, was not arguably liable to be quashed on judicial review. The applicant’s ill health and lack of legal advice did not establish an arguable basis for intervention. The wider complaints concerning academic freedom, independence, natural justice, medical evidence and human rights likewise disclosed no arguable case.

The application was refused.

1. Court of Appeal (Civil Division): on 1 March 2002, the renewed application for permission to appeal was refused: [2002] EWCA Civ 427.
2. Administrative Court: Mr Justice Sullivan refused permission to institute judicial review proceedings on 14 August 2001.
3. Paper application: Mr Justice Scott Baker had previously refused permission on paper.