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Deman v Queen's University Belfast
Factual and Procedural Background
The Appellant, an academic expert in economics and finance and a citizen of India aged 67, was first employed by the Respondent, a university, in 1994. In 2017, the Appellant applied for a professorial post within the Respondent's management school but was not shortlisted or appointed. He alleged racial and religious discrimination and victimisation under the Race Relations (Northern Ireland) Order 1997 and the Fair Employment and Treatment (Northern Ireland) Order 1998.
The Fair Employment Tribunal (FET) in October 2019 dismissed the Appellant’s claims, finding no less favourable treatment on grounds of race, religion, or protected acts under the relevant legislation. The Appellant appealed this decision to the Court of Appeal.
The Appellant has a long history of litigation against the Respondent and others, including multiple employment tribunal claims and appeals, some of which led to restrictions on his ability to bring further proceedings due to vexatious conduct. The Court of Appeal has previously rejected allegations of institutional bias made by the Appellant.
The management of this appeal was complicated by the Appellant’s repeated delays, non-compliance with court orders, absence from hearings, and allegations of bias against tribunal members and judges. The Court considered whether to determine the appeal on paper due to these circumstances.
Legal Issues Presented
- Whether the Fair Employment Tribunal erred in law by dismissing the Appellant’s claims of racial and religious discrimination and victimisation.
- Whether the procedure followed by the Respondent in the recruitment process was unfairly applied, constituting direct discrimination.
- Whether the Appellant’s previous successful legal proceedings against the Respondent caused victimisation in the recruitment process.
- Whether the Tribunal was biased against the Appellant, warranting recusal of the presiding judge and panel members.
- Whether the appeal could be fairly decided on paper without an oral hearing.
Arguments of the Parties
Appellant's Arguments
- The Tribunal and judicial officers were biased, with alleged institutional and religious bias favoring Roman Catholic members, including judges and tribunal members.
- The recruitment procedure was unfair, discriminatory, and victimising, particularly regarding the application of eligibility criteria and the failure to shortlist the Appellant.
- The Appellant’s previous legal successes against the Respondent led to victimisation in the current recruitment process.
- The Appellant challenged the constitution of the Court of Appeal panel and alleged pecuniary and non-pecuniary interests creating bias.
- The Appellant opposed determination of the appeal on paper, asserting a right to an oral hearing and alleging procedural unfairness.
Respondent's Arguments
- The Respondent denied all allegations of discrimination, victimisation, and bias, supporting its position with witness statements, oral testimony, and documentary evidence.
- The recruitment panel applied appropriate and objective criteria, finding the Appellant did not meet essential criteria related to research publication and funding.
- The Appellant’s claims of bias were unsubstantiated and amounted to bare assertions without evidence.
- The Respondent agreed to the appeal being determined on paper due to the absence of live evidence and the nature of the legal issues.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Porter v Magill [2002] 2 AC 357 | Test for bias based on the perception of a fair-minded and informed observer. | Used to assess allegations of bias against the Tribunal and judges, concluding no real possibility of bias existed. |
| Edwards v Bairstow [1956] AC 14 | Standard for appellate review of tribunal factual findings; intervention only if findings are perverse or unsupported by evidence. | Applied to uphold Tribunal’s factual findings on discrimination and victimisation as reasonable and supported by evidence. |
| Igen Ltd v Wong [2005] IRLR 258 | Two-stage test for discrimination claims: prima facie case and employer’s burden to prove non-discriminatory reason. | Guided the Tribunal’s approach to assessing discrimination allegations in recruitment. |
| Brown v Croydon LBC [2007] IRLR 259 | Focus on employer’s stated reason for action to determine discrimination. | Supported Tribunal’s method of assessing evidence and reasons for recruitment decisions. |
| R v Parole Board, ex parte Smith and West [2005] UKHL 1 | Contextual test for procedural fairness and necessity of oral hearings. | Guided Court’s decision on whether to hold oral hearing or determine appeal on paper. |
| R (Osborn) v Parole Board [2014] AC 1115 | Reaffirmation that circumstances requiring oral hearing at common law cannot be exhaustively defined. | Supported conclusion that paper determination was fair given case facts. |
| Attorney General v Barker [2000] 1 FLR 759 | Definition and characteristics of vexatious proceedings. | Referenced in describing Appellant’s history of vexatious litigation. |
| Nesbitt v The Pallet Centre [2019] NICA 67 | Principles governing appeals from Industrial Tribunals to Court of Appeal. | Outlined statutory framework and threshold for appellate review of tribunal decisions. |
| Nelson v Newry and Mourne DC [2009] NICA 24 | Need to consider whole factual matrix in discrimination claims. | Supported Tribunal’s holistic evaluation of evidence. |
| Curley v Chief Constable [2009] NICA 8 | Importance of focusing on discrimination allegation throughout proceedings. | Applied in Tribunal’s approach to discrimination claims. |
| Shamoon v Chief Constable [2003] UKHL 11 | Simple question in discrimination cases: why did the impugned act occur? | Informed Tribunal’s analysis of causation in discrimination claims. |
| Nagarajan v London Regional Transport [1999] IRLR 572 | Application of burden of proof in victimisation claims. | Applied in assessing victimisation allegations. |
| Zaffer v Glasgow Council [1997] IRLR 229 | Distinction between unfair conduct and discriminatory motivation. | Clarified that not all unfair conduct amounts to discrimination. |
| William v Young [2007] NICA 32 | Characteristics of the reasonable observer in bias test. | Used to assess allegations of judicial bias. |
| Lawal v Northern Spirit Limited [2003] UKHL 35 | Reasonable member of public is neither complacent nor unduly sensitive or suspicious. | Supported assessment of bias allegations. |
| Director of Assets Recovery v Lovell [2009] NICA 27 | Judicial discretion in managing proceedings and assessing witness credibility. | Referenced in describing normal judicial conduct in tribunals. |
| Stadnick-Borowiec [Southern Health and Social Care Trust] [2016] NICA 1 | Appellate court’s approach to tribunal factual findings and perversity test. | Reaffirmed elevated threshold for overturning tribunal findings. |
| Mihail v Lloyds Banking Group [2014] NICA 24 | Appellate court must accept tribunal’s factual findings unless plainly wrong. | Applied in reviewing Tribunal’s findings in this case. |
Court's Reasoning and Analysis
The Court began by acknowledging the extensive and complex procedural history, including the Appellant’s pattern of vexatious litigation and repeated allegations of bias without evidential foundation. The Court emphasized the high threshold for establishing judicial bias, applying the test from Porter v Magill, concluding that the Appellant’s allegations were unsubstantiated, conjectural, and devoid of merit.
Regarding the substantive discrimination claims, the Court reviewed the Tribunal’s findings, which were supported by detailed evidence from the Respondent’s recruitment panel. The panel had applied objective, core criteria concerning research publication and funding, which the Appellant failed to meet. The Court found no error in the Tribunal’s application of legal principles, including the two-stage test for discrimination set out in Igen Ltd v Wong.
The Court rejected the Appellant’s contention that the recruitment process was unfairly applied or victimising, noting the absence of any cogent evidence linking the Appellant’s prior litigation to the recruitment decision. The Tribunal’s findings on these points were upheld as reasonable and supported by evidence.
On the procedural question of whether the appeal should be heard orally or decided on paper, the Court applied established principles emphasizing fairness and context. Given the absence of live evidence, the nature of the appeal as a pure error of law challenge, and the voluminous written submissions, the Court found that a paper determination did not violate the Appellant’s right to a fair hearing.
The Court also addressed the Appellant’s repeated refusal to comply with case management orders and his failure to attend hearings, which further justified the decision to proceed without an oral hearing.
Holding and Implications
The Court DISMISSED the appeal.
The Tribunal’s decision rejecting the Appellant’s claims of racial and religious discrimination and victimisation was upheld. The Court found no error of law or procedural unfairness warranting intervention. The Appellant’s allegations of bias against the Tribunal and judiciary were rejected as wholly unfounded. The appeal was fairly determined on the papers without oral hearing due to the nature of the case and the Appellant’s conduct.
The costs of the appeal were awarded to the Respondent. The Appellant’s application for leave to appeal to the Supreme Court was refused on the basis that the decision involved application of established legal principles to fact-specific circumstances and did not raise a point of general public importance.
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