Appeal No. UKEAT/0304/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 15 March 2006

Before
THE HONOURABLE MR JUSTICE BEAN
DR B V FITZGERALD MBE
MR P R A JACQUES CBE

MR S DEMAN	APPELLANT

(1)	PROFESSOR DAVID OWEN
(2)	THE UNIVERSITY OF SHEFFIELD 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN DAVIES QC
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Hudgell & Partners
35/36 Market Street
Woolwich
London SE18 6QP	
For the Respondents	MR DAMIAN BROWN
(of Counsel)
Instructed by:
Messrs Beachcroft Wansbroughs
7 Park Square East
Leeds LS1 2LW

SUMMARY
Race Discrimination:  Inferring Discrimination & Victimisation
Direct discrimination alleged. Employment Tribunal finding that selection panel rejected Appellant for shortlist because he did not have the specialist qualifications required upheld.

Victimisation: unclear findings by Employment Tribunal.  Case remitted for rehearing by fresh Employment Tribunal.

THE HONOURABLE MR JUSTICE BEAN

1.	This is an appeal by Mr Suresh Deman against a decision of an Employment Tribunal sitting at Sheffield under the chairmanship of Mr R LL Williams dismissing his claims for racial discrimination and victimisation.  

2.	The hearing, we are sorry to record, occupied 16 working days, beginning on 8 May 2002 and ending on 10 March 2004, followed by four days of deliberation by the Tribunal and the promulgation of their decision on 27 May 2004.  

3.	Mr Deman complained that he was not short listed for, yet alone appointed to, three posts in the University of Sheffield.  Firstly, senior lecturer in the School of Accounting and Finance, secondly lecturer in the same school and thirdly research fellow in the department of economics.  Professor Owen, head of the School of Accounting and Finance is named as an individual Respondent in respect of the first two posts.  

4.	The Appellant is of Indian ethnic origin.  His direct racial discrimination claim is based on the allegation that he had not been Asian and from the Indian sub-continent, he would at least have been short listed and perhaps appointed to one of the three posts.  

5.	The victimisation claim is based on the respective decision makers’ knowledge of litigation brought by Mr Deman against Sheffield University following his non-selection for various posts for which he applied in 1997.  He appeared in person in the Tribunal, save for short periods when he was assisted by a lay advocate, a Mr Graham, whose contribution to the proceedings, as the Tribunal put it, related largely to the Applicant’s and Mr Graham’s contentions as to the unsatisfactory system of justice within the Tribunal service.  

6.	On appeal, he has had the good fortune to be represented by Mr John Davies QC.  Mr Davies has made it clear that the victimisation appeal relates to the applications for the two posts in the School of Accounting and Finance.  It does not, for reasons which will appear, even arguably apply to the vacant research fellowship.

7.	It is convenient then to begin with the allegation of direct discrimination in relation to the research fellowship.  That short listing exercise was conducted by a Professor Mosley from the University’s Department of Economics and Professor Anton Simanowitz of Sussex University.  The reason for having an external selector is that, apart from Mr Mosley, no-one else at Sheffield had experienced micro-finance in developing countries and that is what the research fellowship was concerned with.  There were 55 applications for the post.  While it was not an essential requirement, preference was to be given to someone who had direct experience of working in Africa and who had carried out field work in a third world developing country.  

8.	Both Professors Mosley and Simanowitz sifted through the applications and CVs individually, then discussed their final choices together.  Mr Deman was not short listed.  Neither of these two professors had ever heard of Mr Deman before, unlike those who dealt with the accounting and finance positions.  They did not shortlist him because he did not have the specialist experience for which they were looking.  The allegation of discrimination was rejected by the Tribunal and although Mr Davies QC did not abandon it on appeal, he did not address any specific argument to it either.  We consider that that application was doomed to failure to and in respect of that post, the appeal must be dismissed.

9.	We return to the applications for the senior lecturer and lecturer vacancies in the School of Accounting and Finance.  As the Tribunal recorded, the head of School, Professor Owen and his senior colleague, Professor Humphrey, were both aware of the previous application by Mr Deman in 1997.  Both Professors had been concerned with the consideration of that application.  Professor Humphrey, in evidence in this Employment Tribunal, which we shall called “the second Tribunal”, described Mr Deman’s interview as the worst he had ever experienced.  

10.	The Tribunal set out in paragraphs 30-34 of their decision what took place in the 2000 short listing exercise:
30.	When, in 2000, Mr Deman applied for three posts, Professors Owen and Humphrey were, of course, aware of what had happened before and, yes, said Professor Owen, he had not met the receipt of Mr Deman's latest application "with pleasure". Nonetheless, after taking advice from the University's Human Resources Department, it was deemed imperative that Mr Deman's latest application be dealt with even handedly just like everyone else's. To this end each application would be considered on its merits and a short listing panel would meet. Short listing panels have, in the past, been chosen by means of elections. More recently however they have been chosen on a "rotation" basis, this to ensure that as many of the academic staff as possible gain experience of being on selection panels:' In the event there was a short listing panel of four. It was, we were told, wholly necessary for Professor Owen to be one of the selectors, notwithstanding any past dealings he may have had with the applicant because he, after all, was head of school and would ultimately be responsible for any new incumbents in posts which were senior posts. Professor Humphrey, too, held a very senior role and his involvement was also deemed not only apt but necessary. Another panel member Ms Linda Lewis, had in 1997 been one of those who had short listed the applicant for the jobs he had then applied for. She herself, however had not been a member of the subsequent interviewing panel in 1997. The fourth member of the short listing panel was Professor Maltby who had been at the University for quite some time. She had certainly been there prior to 1997 when Mr Deman had earlier applied unsuccessfully for posts at the University. She had not actually been involved herself on that occasion and no one sought to ascertain what, if anything, she knew or remembered about it. She did tell us, in the event, that she had an idea that Mr Deman might be one and the same as had been involved with the University earlier. She told us that whatever recall she had stemmed from what she may have seen in one of the local newspapers.
31.	The exercise in 2000 had been carried out in this way. The applications had arrived and together with the accompanying CVs, distributed to the four members of the short listing team, this to enable each of them to study the applications and form their individual views as to the respective merits of the various candidates prior to any meeting for short listing purposes. Professor Owen who chaired the panel, conscious as he was of his and Professor Humphrey's more direct involvement in 1997, decided that at the forthcoming meeting the views of Professor Maltby and Ms Lewis should be sought first of all i.e. before he or Professor Humphrey expressed any views themselves.  If either or both women saw merit in Mr Deman's would have declared their direct knowledge of Mr Deman and, if necessary, short listed him if that was deemed appropriate following further discussion. Professor Owen said that at that stage he would again have taken advice from the Human Resources Department and would likely have excused himself from sitting on any subsequent interviewing panel.  
32.	Professor Owen thus took a conscious decision not to declare in advance his knowledge of Mr Deman because it might be seen as unfair. Further he was the senior figure within the short listing team and was anxious to avoid any risk whatsoever of Ms Lewis perhaps deferring to his views on account of his seniority over her, confident though he was that no one on the panel was likely to be unduly influenced or feel pressurised by himself or Professor Humphrey if they were to voice different views.
33.	In the event Professor Humphrey was unwell on the day of the short listing meeting, 16 February 2000. His views, set out in hand written notes which he passed on to Professor Owen, would be revealed by Professor Owen but only after Ms Lewis and Professor Maltby had aired their own.
34.	As things turned out both Professor Maltby and Ms Lewis were strongly of the view that Mr Deman should not be short listed. Indeed they confirmed those views and gave their reasons for them at the hearing before us. They felt he had not the qualifications, experience, background or interest suited for the posts which needed to be filled, more particularly given the path the department was, at that time, wanting to follow in terms of its development and in terms of submitting its next RAE returns. Their views in relation to those matters were entirely shared by Professors Owen and Humphrey who had themselves considered all the applications and CVs including that of Mr Deman according to merit. So, as it turned out, there was complete agreement and a consensus to exclude Mr Deman from the short list for both jobs in that particular department i.e. senior lecturer and lecturer. In view of that no one felt that any problem stemmed from earlier knowledge of Mr Deman. The exercise had been carried out in as neutral and proper a manner as was possible and without regard to race, colour or nationality. It was done on a wholly professional basis and from a purely academic standpoint to best fill the vacancies and meet the needs of the department and the University”.

11.	In short, then, it can be seen that four people were concerned with short listing for these two vacancies in 2000: Professor Humphrey, Professor Owen, Ms Lewis and Professor Maltby.  In view of Professor Owen’s and Humphrey’s previous involvement with Mr Deman, the procedure adopted was that Ms Lewis and Professor Maltby would not be told anything about Mr Deman’s history, but would be asked their views first.  Both of them came to their own conclusion that he was not an appointable candidate and should not be short listed.  

12.	In paragraph 48 of their decision, the Tribunal found that Professor Maltby had been aware of Mr Deman’s previous claim against the University in 1997.  As recorded in paragraph 30, this was, she thought, from having read about it in a local newspaper.  They make no findings as to whether Ms Lewis was aware of the litigation, but she was plainly aware of the previous application since she was a member of the panel which short listed Mr Deman in 1997, though he was then unsuccessful at the interview stage.  

13.	Professors Owen and Humphrey had plainly – indeed, there was no dispute about it – formed a very poor view of Mr Deman in 1997.  The Tribunal said at paragraph 50:
“None of us have any doubt whatsoever that Mr Deman would have had an uphill struggle to persuade either of these two gentlemen that he should work along side them, within the department in which they worked”.
That presented a difficulty for the University.  Professor Owen was the head of the School of Accounting and Finance.  Obviously, the University and the School of Accounting and Finance were entitled to say that the head of the department should take part in the selection of a new senior lecturer and lecturer for the department.  

14.	Mr Davies boldly submitted that, in view of the previous history of the successful application, let alone the litigation to which we shall come in relation to the victimisation claim, Professors Owen and Humphrey should have stood down from the selection process altogether.  (It is common ground that they could hardly take part in some of the short listing or some of the interviewing, but not the rest of it.)  We have to say that we consider this an entirely unrealistic proposition.  

15.	Leaving the litigation to one side for the moment, it very often happens that a candidate makes an application to an employer and is turned down.  This may be following an interview or it may be simply on consideration of the papers, or it may be by reason of the selector’s previous experience of the candidate, for example, in a previous job.  Two years later, the same candidate applies again.  It cannot, we think, be seriously argued that, as a matter of law or even good industrial relations practice, the person who has previously formed an unfavourable opinion of the candidate’s merits is precluded from taking any part in the subsequent decision.  Of course, if the original rejection has an underlying racist or sexist or other discriminatory basis, this may well carry into the second decision and there are particular difficulties where the previous unsuccessful application has led to litigation as in this case.  But the general proposition which Mr Davies put forward is one which we cannot accept.  

16.	Professor Owen and Professor Humphrey, as recorded by the Tribunal at paragraph 55, decided that the best way to deal with the difficult situation which confronted them was to have Professor Maltby and Ms Lewis individually and separately sift through all applications which, in the event, took each of them three or four hours and then, at a subsequent short listing meeting, allow them to air their views first.  

17.	That, we think, was the best way of dealing with the delicacies of the situation and it turned out that both Professor Maltby and Ms Lewis were against short listing Mr Deman.  The grounds on which they were against short listing Mr Deman (and, indeed, Professors Owen and Humphrey were as well), were found by the Tribunal not to be tainted by anything to do with race, intentionally or otherwise.  They found that race was never a factor in determining who should or should not be on any of the shortlists.  

18.	The reason, as found by the Tribunal, for Mr Deman’s non-selection, was that each individual responsible for short listing decided that the Applicant’s qualifications, experience and interests were less suited for the posts they sought to fill within their department, than were those of the candidates they chose instead.  This was so because by the time of the short listing, the accounting and finance division within the University’s management and business department was focusing on submitting its next return under the RAE (Research Assessment Exercise) by emphasising research in the accounting field under the umbrella of accounting and finance.  Mr Deman, in the view of the Respondent’s witnesses, was more orientated towards economics, in particular game theory rather than accounting.  

19.	Mr Davies, nevertheless, attacks the decision of the Tribunal on a number of grounds.  We should say that those grounds (the re-amended grounds of appeal in this case) reflect good judgment and a focusing as one would expect on the viable issues in the case, in contrast to the original home-made grounds of appeal submitted by Mr Deman himself which, so far as we can see, sprayed wild allegations in all directions and have wisely been abandoned altogether in favour of the re-amended grounds of appeal.  

20.	Mr Davies argues that the Tribunal abrogated or abandoned the proper responsibilities and functions by (1) saying that it was virtually impossible for the Tribunal to second-guess the experts, namely the Respondents and their witnesses; (2) concentrating solely on whether or not the Tribunal accepted or believed the evidence of the Respondents’ witnesses; (3) failing to give any or any proper consideration to whether there had been unconscious or subconscious discrimination and/or (4) failing to give any reasons for any conclusions the Tribunal may have reached as to unconscious or subconscious discrimination.  

21.	As to the point about second-guessing, this relates to the first sentence of paragraph 58 of the Tribunal’s decision.  It is necessary to read that in context.  We begin at the beginning of paragraph 57:
“57.	Each individual responsible for short listing decided that the applicant’s qualifications, experience and interests were less suited for the posts they sought to fill within their department than were those of the candidates they chose instead, particularly when having regard to how the next RAE returns would be submitted.  It turned out to be an unanimous view.
58.	As far as this tribunal is concerned, it is virtually impossible for us to second-guess the "experts", Mr Deman on the one hand spoke of his own record of achievements and strongly challenged each individual witness for the respondent in relation to the respective merits of himself and each of the other candidates who were put on the short list. Mr Deman drew some concessions but the respondents' witnesses remained firmly of the view that he was more orientated towards economics and given the direction the department was then seeking to follow his selection was, it was felt, inappropriate. As in any exercise of this nature some succeed and others do not, often as a result of the subjective views on selection and, sometimes, genuine mistakes are made. There was in this case, however, nothing to suggest to us that those views were not honestly held or were tainted by anything to do with race either intentionally or otherwise”.  

22.	It is clear to us that the reference to second guessing is not to the evidence of the Respondents’ witnesses as a whole, but the limited question of specialist qualifications, experience and interests.  It was for the Respondents to decide what specialist qualifications they were looking for.  It is apparent that there had been at least a change of emphasis between the posts being advertised and the short-listing exercise.  It was in issue before the Tribunal whether that change was genuine or was a cloak for discrimination against Mr Deman and the Tribunal found unequivocally at the conclusion of paragraph 56 of that decision that the change in course had nothing whatsoever to do with anyone seeking to disadvantage Mr Deman’s chances in relation to his application for the posts.  It would, as they said, be preposterous for the University to have changed course on so major a matter for such a purpose.  That is a finding of fact which Mr Davies has not suggested can be overturned and, in the light of it, we think that the reference to second guessing the experts at the beginning of paragraph 58 is entirely innocuous.  The Tribunal were well aware of the question they had to answer.  

23.	Mr Davies’ next point about excessive concentration on credibility is based, at least in part, on the sentence we have already quoted from paragraph 58 “there was in this case…nothing to suggest to us that those views were not honestly held or were tainted by anything to do with race either intentionally or otherwise”.  

24.	In the well known decision of the Court of Appeal in Anya v University of Oxford [2001] ICR 847, Sedley LJ at paragraph 24 approved a statement of Morrison J (the then President of this Tribunal) in Tchoula v Netto Food Stores Ltd (unreported 6 March 1998) in these terms:
“A bald statement saying that X’s evidence was preferred to Y’s is, we think, both implausible and unreasoned and therefore unacceptable and it might appear to have been included simply to try and prevent any appeal…It is always unacceptable for a Tribunal to assert its conclusion in the decision without giving reasons”.   
Sedley LJ warmed to this theme and said at the end of paragraph 25, after references to judgments of Robert Goff LJ and Henry LJ:
“Credibility, in other words, is not necessarily the end of the road.  A witness may be credible, honest and mistaken and never more so than when his evidence concerns things of which he himself may not be conscious”.

25.	Dr Anya’s case, although also against a university, was, in a critical respect, different from the present one.  He was one of two candidates equally well qualified, short listed for a new research post.  They were interviewed by a panel of three (which included the Applicant’s supervisor) and the other candidate was selected.  The Court of Appeal, allowing the appeal and remitting the matter for re-hearing, held that making the choice between two comparably well qualified candidates depended on the interview panel’s view of their personal and professional qualities; and such a judgment was notoriously capable of being influenced, not necessarily consciously, by idiosyncratic factors especially where proper Equal Opportunities procedures were not followed.  

26.	In the present case, the short listing panel, in particular Professor Maltby and Ms Lewis, who, in one case, had never come across the Applicant (though she had possibly read about him in a local newspaper) and, in the other case, had been part of the panel which had short listed him in 1997 (but there was no suggestion that she held any animus against him) were not choosing between two comparably well qualified candidates.  They were deciding whether Mr Deman had the qualifications, experience and interest which would warrant his being selected for the post where the primary field in which teaching and lecturing skills were sought was that of accounting.  They decided that he had not.  

27.	We have looked through the detailed Tribunal decision in vain for any suggestion on his behalf of material to impugn that factual conclusion.  If it is correct, as it appears to be, that Mr Deman was an economist with a particular interest in game theory and did not have specialist qualifications in accounting, then the case is as far from the facts of Anya v University of Oxford as it is possible to be.

28.	The Tribunal in the present case found that race was never a factor in determining who should or should not be on the shortlist.  They were invited by interlocutory order of this Tribunal (HHJ Ansell presiding):
“To make further findings if they are able…as to why the successful candidates should be (sic) – [that ought to read ‘were’] short listed as compared to the Appellant”.
The Tribunal helpfully did so in a unanimous supplementary decision of 27 May 2004.  They set out the qualifications and basic CV of the three candidates who were short listed for the post of senior lecturer, each of whom was professionally qualified in accountancy.  They then carried out the same process in relation to the six candidates short listed for the lectureship within the same department.  In those cases, four of them were considered in the jargon of higher education as “fully RAE returnable”, though the Tribunal do not specify that this in accounting and another was a woman seen as an excellent teacher who held a PhD.  They then, for good measure, carried out the same exercise for the five candidates short listed for the research fellowship with which we have already dealt.

29.	These brief CVs, in our judgment, strongly reinforce the conclusion that the short listing was carried out on the basis of specialist qualifications, experience and interests and that the conclusion of the Tribunal was soundly based and soundly reasoned.  Their unanimous decision on the direct discrimination claim is therefore upheld and that appeal dismissed.  

30.	The Tribunal went on to deal with the victimisation claim.  They said that they had had more difficulty in coming to a conclusion with regard to this claim; and so have we.  The complaint here is that the University in the persons of Professors Owen and Humphrey treated the Applicant less favourably than he would otherwise have been treated because of the Tribunal claim he had brought in 1998 in the course of which he made allegations of race discrimination against the University in general and Professor Owen in particular.  

31.	Section 2 of the Race Relations Act 1976, so far as material, provides that:
“(1)	A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-
	(a)	brought proceedings against the discriminator or any other person under this Act; or
	… 
	(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act…
(2)	Subsection (I) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith”.

32.	Mr Davies submitted that s2(2) only gives a defence where the Applicant’s claim is based on s2(1)(d), the “allegations” subsection of s2(1).  We do not accept this.  As Mr Damian Brown for the University put it, s2(2) means what it says.  It disapplies subsection (1) as a whole if the relevant allegation was false and not made in good faith.  It does not refer specifically to subsection 1(d).  It would lead to hair-splitting distinctions, in our judgment, if Mr Davies were right since the protected act relied on by Mr Deman in this case could as well be described as the bringing of a race discrimination claim against the University in 1998 as it could be described as the making of allegations of race discrimination against the University in the course of that claim.  

33.	Mr Brown submitted, and we agree, that the questions to be answered on the victimisation claim were as follows:

(1)	Was Mr Deman less favourably treated in 2000 than he would otherwise have been by reason of having done a protected act, namely having alleged racial discrimination in his 1998 claim against the University?  If the answer to question 1 is “no”, that would be the end of the case on victimisation.  If the answer to question “1” is yes, then question 2 would be:

(2)	If so, were the allegations which were the reason for the less favourable treatment false and not made in good faith?  

34.	The Tribunal, in paragraph 66 of their determination, said that they had found no evidence of Mr Deman having made any false allegations purely in relation to this current claim.  They went on, arguably, to say that he continued to mislead the Respondents through having intimated earlier that he had a PhD when such was not the case and when he had failed to disabuse them of any notion they may have had in relation to that.  
“The plain fact is that he did not say that he actually had obtained one, though we do accept that the Respondents were earlier misled into believing that he had one.  We are not able, therefore, to find that Mr Deman had made a false statement in relation to that.  Can we say that he has not acted in good faith?”

35.	Having posed the question, they then answered it at considerable length and not with unanimity.  
“67.	The tribunal members are divided on the issue of whether or not Mr Deman was victimised within the terms of Section 2 of the Race Relations Act 1976. The majority (Mr North and the Chairman) find that he was not whilst Mr Abbasi concludes that he was. First of all, this is Mr Abbasi's view. He accepts that the selection process was, despite serious misgivings on the part of Professor Humphrey and Professor Owen in relation to Mr Deman, and despite his (Mr Abbasi’s) own concerns as to a seeming lack of transparency inasmuch as no notes are available and the "singling out" of Mr Deman's application for comment by Professor Dowd, a fact originally denied, carried out fairly in the end and that the respondents made the best choices available as the shortlists for sound and fair reasons. Why then does Mr Abbasi believe that Mr Deman was victimised? Professor Owen, in evidence before this Tribunal, told us that when he saw Mr Deman’s application for jobs in 2000, his reaction was ‘not a reaction of pleasant surprise’.  He went on to tell us that ‘it was because he'd (Mr Deman) concocted a catalogue of lies at the interview (i.e. the one in 1997 when Professor Owen was on the interviewing panel). He wasn’t someone I'd want to work with.  He misled us over qualifications and told scurrilous lies, here at the tribunal, not at the Interview i.e. the allegations he chose to make. Not unnaturally it was the way the case was presented – it was totally unacceptable”.  Professor Owen was, in saying this, clearly alluding to the tribunal case in 1998 when referring to ‘the way the case was presented’ and to the interview in 1997 when referring to their being ‘misled over qualifications’. Professor Humphrey too, was clearly influenced by what had gone on in the 1997 interview. He had, to say the least, not been at all impressed by Mr Deman's behaviour there and had thought he had interviewed appallingly. Indeed Professor. Humphrey described the interview as the worst he had been involved in. Mr Abbasi takes the view that Professor Owen's evidence clearly suggests that he treated Mr Deman less favourably because he had brought earlier proceedings and made allegations of race discrimination against himself and certain of his colleagues at his tribunal hearing in 1998. Mr Abbasi cannot find that the applicant has the sense of their being untruthful and Mr Abbasi is convinced, whatever any outside observer might say or believe, that Mr Deman genuinely believes that he has suffered discrimination and victimisation. Mr Abbasi sees the treatment of Mr Deman as being ‘less favourable’ because he had, in effect, to jump through a number of hoops before descending on any level playing field though, having landed upon that field, Mr Abbasi was treated fairly and thus ultimately suffered no detriment. He had to jump through hoops’ because of the allegations he had earlier made. Mr Abbasi finds that the arrangements made in relation to Mr Deman for the purpose of determining who should be short listed (which could, in turn, help determine who should be offered employment) were tailored to meet the fact that Mr Deman's past record was known to Professors Owen and Humphrey. Whilst accepting that Mr Deman's eventual selection for short listing purposes had nothing whatsoever to do with his race or nationality, Mr Abbasi, nonetheless does not believe that one can say that the fact that Mr Deman had to do more to arrive at the level playing field than did his competitors was not less favourable treatment for the purposes of Section 2 of the Act, i.e. in relation to victimisation. In Mr Abbasi's view it was due to the fact that Mr Deman had made allegations of race discrimination, not simply the manner of his doing so, thinks Mr Abbasi, as there is he feels, hardly any nice way of saying so if one believes he has deliberately been discriminated against. Professors Owen and Humphrey were harder to persuade than they would otherwise have been, this because of Mr Deman's earlier accusations and the bringing of his earlier claim.  Mr Abbasi cannot therefore accept that Mr Deman has not been victimised. Mr Abbasi believes that Mr Deman's victimisation claim is made out because, despite the eventual merit of the decision not to short list Mr Deman, it is nonetheless true that the method of approaching the short listing task in relation to his case was a direct consequence of the 'protected act' i.e. his having earlier accused members of the University's staff of racial bias and the bringing of his earlier claim to the Employment Tribunal. Mr Deman, says Mr Abbasi, has not been found to have made any false allegations in relation to his present claim and he does not doubt, however misguided he may be, Mr Deman's good faith.

68.	The Chairman and Mr North take a different view.  They are not persuaded that the applicant was victimised within the terms of Section 2. They have already accepted that the selection process was carried out fairly and despite certain shortcomings in the way the process was carried out e.g. no notes, they do not believe that Mr Deman suffered discrimination on grounds of race. This is, of course, a view shared by Mr Abbasi. It has in the past been said, more recently by Mr Justice Elias in the case of The Law Society v Bahl [2003] IRLR 640 that all racist language is offensive but not all offensive language is racist. By the same token not all behaviour which is unfair is necessarily discriminatory on grounds of race or sex though discriminatory conduct is itself always unfair. The majority are willing to accept that Mr Deman had a harder furrow to plough to persuade Professors Owen and Humphrey that he should work alongside them. There is no doubt whatsoever that Professor Owen in particular made plain in a forceful response to a question from the panel that he was offended by Mr Deman's contentions that he was someone who had deliberately discriminated against him on racial grounds in the past. What he said in answer to one of Mr North's questions is recorded in paragraph 67 within this decision. How, therefore, can one say that Mr Deman was not out of the frame from the outset when he applied for posts in 2000? The reason we say he was fairly treated is because we are persuaded that the respondents have proved to us that they acted professionally and set aside any feelings of resentfulness against Mr Deman for the purpose of dealing with this applications.  We have no doubt that matters may have become ore difficult had Mr Deman gained a place on any of the shortlists and we believe he could have done if those on the short listing panel (including Professors Humphrey and Owen) felt his application and CV merited it.  As things transpired however it never came to that and the process ran smoothly and fairly.
69.	The Chairman and Mr North are both content to accept that neither Professor Humphrey nor Professor Owen would have readily countenanced Mr Deman being employed amongst them. This however had nothing whatsoever to do with his race, nationality or colour. It was, as far as Professor Owen at least was concerned, all to do with the way he had behaved at his interview in 1997 by his conduct and demeanour at the interview himself i.e. by seeking to deceive the panel into believing that he held a PhD and by falsely suggesting, that Professor Gow had chosen someone else for the post in 1997 and congratulated him before Mr Deman himself was interviewed.  These suggested that Mr Deman had made false allegations and had not acted in good faith.  Further the two Professors had been singularly unimpressed with Mr Deman’s performance at the interview with Professor Humphrey, as already stated, described as the worst in his experience. Neither of these two Professors wanted Mr Deman to work with them. That was not because of his race, colour or nationality. It was because they did not feel he had sufficient integrity or possessed the necessary professional ethics and because they believed there would be severe limitations, on his capacity to work at the University, in particular, on his capacity to teach.
70.	Mr Deman had made what were found to have been false allegations at the tribunal hearing in June 1998.  The respondents certainly did and do not believe that the applicant has been acting in good faith.  
71.	….
72.	….
73.	The majority here i.e. the Chairman and Mr North, find that the applicant made false statements in 1997 because the earlier panel found that to have been the case.  It is also evident from the applicant’s long CV in the present case that he sought to perpetuate the notion that if he did not have a PhD it was effectively in place ‘all bar the shouting’, why else put ‘PhD awaited’?  Clearly what he had said in 1997 led that interviewing panel to believe that he did hold a PhD.  His actions in that respect and not least in attempting to have Judge Prophet brought to the tribunal suggest to the majority that Mr Deman has not been acting entirely in good faith.  Furthermore, whilst he is perfectly entitled (as claimed by himself) to bring actions, however often, against whoever he believes deals unlawfully with him, the number of applications he had made against higher education establishments up and down the country paints a picture of someone who is not prepared, and is unlikely ever to be prepared, to accept that the system works fairly in relation to himself.  
74.	The applicant’s good faith is very questionable and, the majority believe, he has not acted in that manner.  Undoubtedly he has told untruths.  In the majority’s view Mr Deman has not been discriminated against on grounds of race by the University or by Professor Owen.  What he has reaped in terms of Professor Owen’s lack of respect for him, and the same applies to Professor Humphrey too, is largely a result of what he himself has sown.  That has nothing whatsoever to do with his race, nationality or colour.   It is more than anything extremely sad because undoubtedly Mr Deman is a highly talented individual with, perhaps, much to offer if he could only rid himself of his obsessions and move forward.
75.	What Professor Owen particularly objected to was not the fact that Mr Deman had brought a discrimination claim or made earlier allegations of racial basis but that he had mounted them on the back of a number of lies and gross distortions of the truth.  Furthermore they each concluded, having interviewed him in 1997, that he was unfitted for a post at the University, because of the way he had conducted himself and performed”.  

36.	The Tribunal referred to findings of their predecessors, the first Tribunal, that the Applicant had made false statements in 1997 (we pause to note that Mr Williams, the Chairman, had also been the Chairman in the first Tribunal case and that after discussion at the beginning of the second case whether it was appropriate for him to sit, Mr Deman agreed that it was).  

37.	Those “false statements” as the second Tribunal described them are listed in paragraph 52 of their judgment.  They related to “allegations of (i) the University not seeking to take up references; (ii) Professor Gow supposedly congratulating another candidate prior to the Applicant’s interview and within his presence and ear-shot; (iii) the interview panel members or some of them being hostile and (iv) Dr Demirag allegedly apologising for the behaviour of the interview panel”.  

38.	We have read the Decision of the 1998 Tribunal.  The four allegations referred to in paragraph 52 of the second Tribunal’s judgment were not upheld, there is no doubt about that.  But there is an unfortunate ambiguity in the use of the words “not true”.  There is no finding of bad faith against Mr Deman or, for that matter, against anyone else in the 1998 decision.  We accept that it is not impossible for a second Tribunal to return to a factual issue ventilated in the first and to make a finding of bad faith where bad faith was not in issue in the first Tribunal, but they should do so with considerable care.  Particular difficulties in that context arise if one or more members of the second Tribunal was a member of the first Tribunal.  It must be made clear to parties in the course of the second Tribunal what is the case which they have to meet.  If the Tribunal has formed a view during the first hearing but not expressed it, that a party was acting dishonestly, then this must be put fairly and squarely to the parties to enable them to deal with it.  Indeed, it might well lead to a dispute about whether the composition of the Tribunal ought to be changed.  

39.	In any event, in paragraph 73 of its judgment, the present Tribunal after referring to full statements made by the Applicant in 1997 went on to refer to three topics.  The first was whether the Applicant did or did not a PhD.  They said two things about that.  Firstly, “it is evident from the applicant’s long CV in the present case that he sought to perpetuate the notion that if did not have a PhD, it was effectively in place ‘all bar the shouting’, why else put ‘PhD awaited?’”

40.	That appears to be a finding by the second Tribunal that the Applicant had attempted to mislead them, but it was not, of course, an allegation by reason of which Professor Owen and his colleagues even arguably treated the Applicant less favourably in 2000 than they would otherwise have done.  However, the second Tribunal went on to say “clearly what he had said in 1997 led that interviewing panel to believe that he did hold a PhD”.  

41.	That alleged misleading of the 1997 interviewing panel was clearly put forward in the evidence of Professor Owen to the second Tribunal, but it is not mentioned in the 1998 decision, still less was it then the subject of a finding.  

42.	The second topic raised by the second Tribunal in paragraph 73 is an attempt which Mr Deman made to have HHJ Prophet, the then President of Employment Tribunals, testify or alternatively, to have a draft witness statement put forward on his behalf.  In paragraph 7 of their Decision, the second Tribunal said:
“Mr Deman sought a witness order to secure the attendance of His Honour Judge Prophet…A draft statement was provided which the Applicant admitted had been drafted for Judge Prophet’s signature.  This, he said, had not been approved by Judge Prophet but he, Mr Deman, was quite confident that it contained what Judge Prophet would be content to say were he attend to give evidence.  Judge Prophet, it should be added, had declined to become involved and had given no authorisation in respect of the statement.
…
No order was made to require Judge Prophet’s attendance”.

43.	This episode strongly suggests that Mr Deman conducts litigation in a way which may be considered vexatious or an abuse of process, but it does not, as it seems to us, amount to a basis for a finding of bad faith, particularly not bad faith in the making of an allegation.  

44.	Thirdly, the second Tribunal went on, in paragraph 73, to say that while Mr Deman “is perfectly entitled to bring actions however often against whoever he believes deals unlawfully with him, the number of applications he has made against higher education establishments paints a picture of someone who is not prepared to accept that the system works fairly in relation to himself”.  

45.	Again, as with the issue concerning HHJ Prophet, there is a difference between a vexatious litigant and a liar.  We cannot see that Mr Deman’s prolific litigation is a basis for establishing that any less favourable treatment of him in 2000 by reason of having done a protected act was, nevertheless, not unlawful because the allegations he made in those proceedings were false and not made in good faith.  

46.	The serial and unreasonable, but misguided, litigant is sadly a familiar feature of the Tribunal system.  S2(2) of the Race Relations Act 1976 and the equivalent in other discrimination legislation might have said that subsection (1) does not apply if the person victimised has behaved wholly unreasonably either in the litigation or otherwise, but it does not do so.  

47.	We consider that the majority decision of the Tribunal on the victimisation issue cannot stand.  Mr Brown valiantly sought to argue that his first question - was Mr Deman less favourably treated by reason of having done a protected act? –could clearly be answered “no” on the evidence and so, as he put it, one never gets to question 2.  The Employment Tribunal could have dealt with the case in that way, but then, we ask, why did they go on at such length about bad faith?  

48.	It is not clear to us what their answer to question 1 was.  We therefore decide with some reluctance that the victimisation claim must be remitted for a fresh hearing.  We record that Mr Davies QC, when asked by us what the heads of claim would be in the event of Mr Deman’s appeal on direct discrimination failing, but his appeal on victimisation succeeding, confirmed that the only head of damage he could think of was injury to feelings.  It is also the only head of damage which any of us can think of.  

49.	Mr Davies did go on to submit that the material was available to us to allow the appeal outright and make a finding of victimisation in Mr Deman’s favour, but we entirely reject that.  It may very well be that when the fact finding Tribunal comes to consider the case on remission, it will answer Mr Brown’s first question “no”.  If it answers Mr Brown’s first question “yes” it may go on to make a finding against Mr Deman on question 2.  These are not matters on which we wish to say anything more.  

50.	We do, however, wish to say something on procedural issues.  The Tribunal considering the remitted case should, in our judgment, be freshly constituted.  We are immensely sympathetic to the members of this Tribunal who had to sit through 16 days of hearings spread over no less than two years largely, so far as we can make out, because of Mr Deman’s prolix evidence and even more prolix cross-examination.  The adjournments, when they came, were several months at a time.  The Chairman had the added difficulty that he had taken part in a previous case and it is not always easy, when one has heard more than one case involving the same parties, to separate accurately the evidence given in one from the evidence given in the other.  

51.	All in all, we think it would be better if a fresh start was made.  But we consider that the Tribunal hearing the victimisation claim should take as their starting point, and not permit to be reopened the findings of fact made by the first Tribunal on the direct discrimination claim leading to the conclusions which we have upheld.  We consider that evidence-in-chief should be in the form of witness statements and that the length of the hearing while, of course, as ever, within the discretion of the Tribunal itself should be severely limited; particularly having regard to the limited scope of the remedies now available to Mr Deman, even if he is successful on liability.  

52.	We would be inclined to think that the Tribunal would be justified in fixing a three-day hearing and limiting the time available for cross-examination and submissions accordingly, but we leave that to them.  If there are any directions which either of the experienced Counsel now before us consider that we could and should make which would assist the Tribunal in their task, we should be very glad to do so.