Singh v Glasgow University & Anor (Race Discrimination)

An appeal tribunal may not rehear disputed facts. A perversity appeal succeeds only where the tribunal reached a conclusion that no reasonable tribunal, properly directing itself on the evidence and law, could reach. Credibility and the weight of evidence remain for the employment tribunal.

Apparent bias depends on whether a fair-minded and informed observer, knowing the relevant circumstances, would see a real possibility of bias. A speculative institutional connection, without an interest in the outcome or other cogent circumstance, does not meet that test. A tribunal is entitled to decline to make an unqualified comparison of handwriting or to invite a lay witness to give expert handwriting evidence.

The claimant appealed from the Glasgow Employment Tribunal’s decision to discharge Professor Gusterson as a respondent in race-discrimination proceedings. Permission for a full appeal was confined to whether the Employment Judge had failed properly to address the claimant’s allegation that a letter dated 3 August 2005 was forged.

Following an earlier part-heard appeal, the Employment Appeal Tribunal used the Burns/Barke procedure and the Employment Judge conducted a review. The Employment Judge found that the letter was not forged, that there was no prima facie case of deceit, and that delay had seriously prejudiced Professor Gusterson’s ability to defend any claim against him. The claimant alleged perversity, inadequate reasons and actual or apparent bias.

1. Appeal dismissed. The claimant had shown no error of law in the Employment Judge’s treatment of the letter or in the decision to prevent lay comparison of signatures. A judge should not act as an amateur graphologist. The issue called for admissible expert evidence, which neither the judge nor the lay witness possessed.

2. The challenge to findings concerning Mr Black’s recollection was an attempt to reargue facts. The Employment Judge was entitled to accept that recollection had faded on some matters while retaining a clear recollection of a particular date. That assessment was not close to the exceptionally high perversity threshold stated in [2002] IRLR 634.

3. The alleged error concerning whether the post had been advertised twice did not raise a reasons challenge. It had not been raised before the Employment Tribunal, did not require that tribunal to revisit its findings, and did not affect the central issue concerning the letter.

4. The bias allegations failed under the fair-minded and informed observer test. An Employment Judge had no relevant interest merely because Sir Muir Russell was chairman of the Judicial Appointments Board for Scotland. A properly informed observer would regard a suggestion that a Scottish judge would favour him for that reason as fanciful.

5. The assertion that Scottish courts could not fairly hear an English-accented ethnic-minority litigant was also rejected. The reported comments of Lord Hope concerned a political debate about the Supreme Court and did not support an inference that Scottish judges would consciously or unconsciously discriminate against English litigants. The Tribunal held that Scottish judges would continue to treat litigants fairly regardless of ethnicity, nationality or religion.

6. The question of expenses was reserved for further written submissions. The claimant was directed to the opportunity under the Employment Appeal Tribunal Rules 1993 to provide information about ability to pay.

• Employment Appeal Tribunal: Appeal dismissed in [2012] UKEAT 0006_11_1007.
• Employment Tribunal, Glasgow: On 23 February 2010, Employment Judge Cape permitted Professor Gusterson to be discharged or sisted from the proceedings. On review, determined on 14 September 2011, the Employment Judge declined to alter that conclusion.