D' Silva v Manchester Metropolitan University

A tribunal conducting a remitted hearing de novo must decide the remitted issues afresh. Findings from an earlier hearing that have been set aside do not bind it. In a direct discrimination claim applying the two-stage Igen approach, where Stage 1 establishes that there was no less favourable treatment, an inquiry into the alleged discriminator’s motivation is immaterial. Case management decisions, including limits on cross-examination, do not indicate bias merely because witnesses receive unequal time. An apparent-bias challenge requires evidence capable of satisfying the fair-minded and informed observer test. Ordinary procedural control, or robust advocacy by the opposing representative, is not enough. New grounds not raised before the lower appellate tribunal may be refused where they have no realistic prospect of success.

Dr D’Silva brought race-discrimination claims against Manchester Metropolitan University. An employment tribunal initially upheld six complaints, but the Employment Appeal Tribunal allowed the University’s appeal in relation to all six, dismissing five and remitting one issue for a rehearing de novo in its decision dated 26 September 2007 (UKEAT/0024/07).

The employment tribunal reheard the remitted issue in December 2008 and March 2009 and dismissed the claims. At a preliminary hearing, the Employment Appeal Tribunal permitted one ground concerning refusal of an adjournment to proceed, but dismissed the remaining grounds in its order of 27 January 2010 (UKEAT/0336/09/LA). Dr D’Silva renewed his application for permission to appeal. The issues included the refusal to permit cross-examination about the Vice-Chancellor’s thought processes, alleged apparent bias, and proposed new grounds based on earlier procedural directions.

Permission refused on all grounds.

1. The proposed amended grounds concerned matters that could have been raised before the Employment Appeal Tribunal. No proper basis was shown for raising them for the first time in the Court of Appeal, and they had no prospect of success. The proposed grounds were therefore not admitted.
2. The remitted employment tribunal hearing was expressly a hearing de novo. The tribunal was not bound by favourable findings made at the original hearing, which had been set aside on appeal. The earlier directions and findings could not be used to revive the original outcome.
3. The tribunal had correctly treated the remitted issues as direct discrimination. Victimisation contrary to section 2 of the Race Relations Act 1976 was not in issue. Applying the two-stage Igen approach, the tribunal found at Stage 1 that Dr D’Silva had not received less favourable treatment. It was therefore unnecessary to examine the Vice-Chancellor’s thought processes or the reasons for the treatment. Refusing cross-examination on that issue could not have affected the result.
4. The applicable apparent-bias question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility or real risk of bias. The evidence before the court did not establish an arguable case. A disappointed litigant’s assertions were insufficient, and the absence of a transcript made it particularly difficult for an appellate court to assess alleged hostility in the conduct or tone of the hearing.
5. Employment judges have a duty to manage proceedings efficiently. Limiting cross-examination was a normal and proper case-management decision. There was no rule requiring witnesses to spend equal periods in the witness box, and no complaint that the permitted period was inadequate.
6. Robust advocacy by the respondent’s representative, and the tribunal’s failure to intervene in the ways alleged, did not establish apparent bias. The Employment Appeal Tribunal had made no error of law in rejecting those complaints.

• Court of Appeal (Civil Division): On 1 February 2011, Lord Justice Rimer refused permission to appeal on all grounds.
• Employment Appeal Tribunal: At a preliminary hearing leading to the order cited as UKEAT/0336/09/LA, one ground concerning refusal of an adjournment was permitted to proceed to a full hearing; the remaining grounds were dismissed.
• Employment Tribunal: Following the remittal, the tribunal reheard the issue in December 2008 and March 2009 and dismissed the claims in its judgment sent on 2 April 2009.
• Employment Appeal Tribunal: In its decision dated 26 September 2007, cited as UKEAT/0024/07, the tribunal allowed the University’s appeal in relation to six complaints, dismissed five and remitted one for a rehearing de novo.
• Employment Tribunal: The original judgment dated 3 June 2005 upheld six complaints and dismissed the remainder.