FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   00218/96 FET
01789/96 SD

CLAIMANT:		Mr Suresh Deman	

RESPONDENTS:	1.	Association of University Teachers and Officers at Queen’s University
2.	Duncan Mercer
3.	Richard Jay
4.	Max Goldstrom
5.	Paul Hudson

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims of unlawful discrimination, whether on the grounds of sex, religious belief, political opinion and/or by way of victimisation are dismissed against all respondents.

Constitution of Tribunal:
Chairman:		Mr S A Crothers
Members:		Mrs McCormick
			Mr Gourley

Appearances:
The claimant was represented during part of the hearing by Mr Sharma.  During the remainder of the hearing he represented himself and was assisted by Mr Graham.
The respondents were represented by Mr Francis O’Reilly, Barrister-at-Law, instructed by Francis Hanna & Company, Solicitors.

1.	The claimant alleged that the respondents discriminated against him on the grounds of sex, religion and political opinion.  The claimant also alleged victimisation.  The respondents denied all of the allegations and asserted that the claimant’s claims were out of time.  The claimant’s claims were presented to the Tribunal on 19 April 1996.  The proceedings were the subject of a number of interlocutory hearings and Case Management Discussions.  The cases were initially listed for a pre-hearing review on 3-4 October 2005 to consider four preliminary issues.  In a Case Management Discussion on 27 September 2005 the pre-hearing review was removed from the list in order for the case to be re-listed for a full hearing.  After further Case Management Discussions on 18 May 2006 and 4 September 2006 a final Case Management Discussion was held on 20 March 2007 and the cases timetabled for hearing.  The issues for the substantive hearing were set out in the record of that Case Management Discussion.

The Issues

2.	The issues before the Tribunal, as amended, were as follows:-

(i)	Whether the claimant should be given leave to amend his Originating Applications.

(ii)	Whether the letter of 1 May 1996 constituted a valid appearance.

(iii)	If not, whether the respondent should be debarred from defending the proceedings.

(iv)	Whether the claimant’s claim to the Fair Employment Tribunal in respect of his allegations of sex discrimination, religious discrimination, political discrimination and victimisation were presented within the time limits provided (to include the time limit for a continuing act).

(v)	If not, whether it is just and equitable for the Tribunal to exercise its discretion to extend time to allow the applications to be presented.

(vi)	Whether the Tribunal has jurisdiction in the context of these applications to consider the allegations against the respondent, Mr Mercer, having regard to the capacity in which he was acting at the time and the fact that the claimant had issued separate proceedings concerning the subject matter of these allegations.

(vii)	Whether the claimant was discriminated against as alleged on the grounds of his sex.

(viii)	Whether the claimant was discriminated against, as alleged on the grounds of religious belief, and/or political opinion.

(ix)	Whether the claimant was victimised.

(x)	If the answer to either question (v) or (vi) is yes, whether the claimant is entitled to any award.

The written submissions in relation to the above issues are appended to this decision.  The Tribunal also took into account brief oral submissions made by both parties on 25 January 2008, and relevant authorities referred to.

Strike Out Application

 3.	In his written submissions to the Tribunal, the respondents’ Counsel invited the Tribunal to exercise its powers under Rule 18(7)(c) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and Rule 17(7)(c) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, to strike out the claims of the claimant on the grounds that the manner in which the proceedings had been conducted by the claimant had been scandalous, unreasonable and vexatious.  In making such an application the respondents’ Counsel invited the Tribunal to have regard to its detailed notes of the evidence and various events that occurred during the hearing.  He referred to the manner in which the claimant, on occasions, addressed the Tribunal and the accusations of impropriety he made against the Tribunal and against the Chairman in particular and also against Counsel for the respondents.  In his further submissions, Counsel, Mr O’Reilly, also referred to what he regarded as verbal abuse by the claimant of his initial representative, Mr Sharma, and his subsequent friend, Mr Graham.  Furthermore, Counsel referred to a written statement produced by the claimant at the outset of the hearing which alleged that he did not consider that he would receive a fair hearing.  Taking all of these matters into account, Counsel submitted that even at the submission stage, the claims of the claimant should be struck out for the reasons set out above.  The Tribunal considers it appropriate to deal with this submission at the outset of its decision.  The Tribunal had regard to Harvey on Industrial Relations and Employment Law (“Harvey”) Volume 5 at T647ff and in particular to paragraph 653 where, referring to Burton J’s judgement in Bolch –v- Chipman 2004 IRLR 140 EAT, and taking account of the judgements in Bennett –v- London Borough of Southwark 2002 EWCA Civ 223 and De Keyser Ltd –v- Wilson 2001 IRLR 324 EAT, four matters are to be addressed as follows:-

(1)	There must be a conclusion by the Tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on his behalf in such a manner.

(2)	Even if such conduct is found to exist, the Tribunal must reach a conclusion as to whether a fair trial is still possible.

	(3)	Even if a fair trial is not considered possible, the Tribunal must still examine what remedy is appropriate, which is proportionate to its conclusion.

	(4)	Even if the Tribunal decides to make a striking out order, it must consider the consequences for the claimant.

	The Tribunal also considered the House of Lords decision in Anyanwu and anor -v- Southbank Student’s Union and anor 2001 IRLR 305 HL which held that discrimination cases should not be struck out except in the very clearest circumstances.  Although at times the claimant did conduct his case in a disruptive and unruly manner and showed blatant disrespect for the Tribunal, and its attempt to conduct a fair hearing in accordance with its overriding objective, the Tribunal, following the case of De Keyser Ltd -v- Wilson (supra) considers that a fair trial was still possible, and, also taking into account the remainder of the factors outlined above, refuses to strike out the claims.

Guidance Taken into Account

4.	In the course of the hearing the Tribunal reminded itself of some relevant comments made by Lord Justice Mummery in the case of Bache -v- Essex County Council 2000 IRLR at paragraph 35, as follows:-

“I would add the following general comments in view of the particular difficulties sometimes encountered by Tribunals hearing cases conducted by lay representatives as well as by parties acting in person.

(1)	At the hearing the Tribunal must follow a procedure which is fair to both sides.  It must normally allow each party to call relevant evidence, to ask relevant questions of the other side’s witnesses and make relevant submissions on the evidence and the law.

(2)	The Tribunal is responsible for the fair conduct of the hearing.  It is in control.  Neither the parties nor their representatives are in control of the hearing.

(3)	Procedural fairness applies to the conduct of all those involved in the hearing.  Just as the Tribunal is under duty to behave fairly, so are the parties and their representatives.  The Tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side’s evidence and making submissions.  The rulings of the Tribunal on what is and is not relevant and on what the fair and appropriate procedure is ought to be respected even by a party and his representative who does not agree with a ruling.”  

The Tribunal is satisfied that it conducted the hearing in accordance with the above guidance. The claimant essentially represented himself from 11 November 2007 until the conclusion of the case.

Recusal Application

5.	On 15 November 2007, the claimant made a recusal application before the Tribunal on the basis of apparent bias.  The Tribunal had previously considered various allegations made by the claimant earlier in the hearing and had stated in open Tribunal that it was satisfied that the claimant’s allegations were unsubstantiated and that the Tribunal could give him a fair hearing.  The Tribunal carefully considered the representations of both parties and relevant authorities in relation specifically to the allegation of apparent bias.  This included a consideration of the section in Harvey Volume 5 at T 960ff and the relevant cases referred to therein.  The Tribunal also considered recent case law including the decision of the Court of Appeal in London in the case of Paul Jonathan Howell, John Neal Thompson, Alison Robinson -v- Marcus Lees Millais, Lorna Millne Joicey, Fiona Lees Millais [2007] EWCA, Civ 720.

At paragraph 4 of his judgement Judge Anthony Clarke states as follows –

“The claimant’s submission is that this is a case for apparent bias.  The relevant test is now well established.  In Porter -v- Magill [2002] 2AC 357, especially per Lord Hope at paragraphs 102 – 103, the House of Lords endorsed the approach set out by Lord Phillips MR giving the judgement of this court in Re Medicaments and Related Class of Goods (No 2) [2001] 1 WLR 700 at [85] as follows:

“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the Tribunal was biased””.

The Tribunal was unanimously of the view that the allegation of apparent bias was not substantiated and that a fair hearing could proceed in accordance with the Tribunal’s overriding objective.  The application for recusal was therefore declined and the hearing proceeded.  Quite separately, and in light of the evidence to date, the Tribunal was satisfied that the allegations of victimisation constituted an issue before the Tribunal.  At that stage the Tribunal also pointed out that, subject to any submissions on the point at the end of the case, both parties would be given reasonable time to prepare any submissions for the Tribunal to consider.

Amendment Application

6.	The claimant presented two Originating Applications to the Tribunal on 19 April 1996 alleging religious/political discrimination and victimisation, and sex discrimination and victimisation respectively.  In correspondence of 31 January 1997, the claimant requested leave to amend the Originating Application and furnished a document entitled “Grounds in Support of the Originating Application”.  It appears that this amendment request has been outstanding since that date.  Counsel for the respondents did not oppose the amendment application subject to any time limit issues which may arise.  The Tribunal is satisfied that leave should be granted to amend the Originating Applications to include the additional matters referred to in the document entitled “Grounds in Support of the Originating Application”.  Insofar as the amendment purports to include a new claim or claims, the Tribunal is satisfied that it is just and equitable to extend the time limits accordingly.  In exercising its discretion the Tribunal has taken into account the section in Harvey at T 311ff and the relevant case law referred to therein.

Appearance

7.	The next issue before the Tribunal was whether correspondence from the respondents’ solicitors dated 1 May 1996 constituted a valid appearance and, if not, whether the respondents should be debarred from defending the proceedings.  This was an issue taken by the claimant at an early stage in the proceedings and was one of the issues to be dealt with at the pre-hearing review which was originally listed for 3-4 October 2005.  The text of the correspondence of 1 May to the Tribunal reads as follows –

“Dear Sir,

Re: Mr Suresh Deman –v- Association of University Teachers

We write to advise you that we have been instructed on behalf of the Association of University Teachers in respect of the above Applications.

We understand that in addition to naming the Association the Applicant has also named a number of the Officers of the Association at paragraph 3 of his Originating Applications.  We can confirm that we are also instructed on behalf of the individual Officers that have been named.

We are writing to you at this time to ask you to let us have a copy of the Applicant’s Applications together with a number of blank Appearance Forms to enable us to formally respond on behalf of the various Respondents.  In order to avoid any possible future confusion we would ask you to let us have details of all persons or bodies who have been registered as Respondents in these matters.

We would also ask you to treat this letter as the Appearance on behalf of each of the Respondents pending submission of the formal Appearance Form.  Please note that the Respondents and each of them intend to vigorously defend these proceedings and therefore deny each and every allegation made by the Applicant in his Applications, both expressed and implied.

We have in our possession a faxed copy of the Applicant’s Applications which is extremely difficult to read and we suspect therefore that before we are able to properly respond we may require the Applicant to provide a typed transcript of paragraph 13 of his Applications.  In any event in view of the number of Respondent’s involved in this matter we will require some time to take instructions before we can file a detailed defence.

In the circumstances we look forward to hearing from you with the copy Applications as soon as possible.

Yours faithfully,	

Francis Hanna and Company”.

	The correspondence was accepted by the Tribunal shortly afterwards as a notice of appearance on behalf of all respondents.

	The Tribunal has considered the submissions by both parties in relation to this issue. It is satisfied, consistent with its overriding objective, that the correspondence of 1 May 1996 does indeed constitute a valid appearance in accordance with Rule 3 of the Schedule to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989 and Rule 3 of the Schedule to the Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) 1981 and that there was a deemed application for an extension of time under the respective Rules.  However for the removal of doubt, the Tribunal extends time so as to constitute the said letter as a valid notice of appearance.

Time Issues

8.	The Tribunal has now to consider the issues at paragraph 2 (iv) and (v) (supra) in relation to time limits.  Section 24 of the Fair Employment (Northern Ireland) Act 1976 inserted by s.50(1) of the Fair Employment (Northern Ireland) Act 1989 and further amended by the Fair Employment (Amendment) (Northern Ireland) Order 1991, being the legislation in force at the time of the material circumstances in this case, provided as follows:-

“24.—(1)	A complaint by any person (“the complainant”) that another person (“the respondent”) has committed unlawful discrimination against him may be presented to the Tribunal.

            (2)	Subject to sub-section (3), the Tribunal shall not consider a complaint unless it is brought before whichever is the earlier of—

(a)	the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of, or

(b)	the end of the period of six months beginning with the day on which the act was done.

		(2A)	For the purposes of sub-section (2)—

(a)	where the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract, and 

(b)	any act extending over a period shall be treated as done at the end of that period, and

(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.

(3)	The Tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

The Fair Employment and Treatment (Northern Ireland) Order 1998 repealed both of the above enactments but re-enacted similar provisions relating to the period within which proceedings must be brought (Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998).

	Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) states (insofar as relevant to this case), that –

“(1)	An Industrial Tribunal shall not consider a complaint under Article 63 unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.”

There are similar provisions in Article 76 of the 1976 Order to the Fair Employment legislation in relation to:-

(i)	extending the time limit when the Tribunal considers that it is just and equitable to do so.

(ii)	acts extending over a period; and

(iii)	deliberate omissions.

The Tribunal also considered the relevant statutory provisions in relation to the allegations of victimisation as found initially in section 16 of the Fair Employment (Northern Ireland) Act 1976 (and re-enacted in substantially similar terms in Article 3(4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998), and, in relation to sex discrimination, in Article 6 of the 1976 Order.

9.	The Tribunal heard evidence from the claimant.  In addition he submitted a witness statement from Jennifer Mayo – Deman which was read by the Tribunal.  This witness did not give oral evidence.  The Tribunal also heard evidence from Dr Duncan Mercer, Lecturer in the School of Biological Science at Queen’s University Belfast (“Queen’s”), Dr Paul Hudson, who retired as a senior lecturer in Operational Research at Queen’s on 30 September 2006, and Mr Richard Jay, Acting Director of Education in the School of Education at Queen’s.  Although opposed by the claimant, the statement of Dr Goldstrom, retired senior lecturer in economic social history at Queen’s, was admitted and read by the Tribunal.  Dr Goldstrom did not give oral evidence.  Mr Albert Titterington, retired senior lecturer from Queen’s, also gave evidence on behalf of the claimant.  The Tribunal was presented with bundles of documentation.  

In relation to issues at paragraph 2 (iv) and (v) (the out of time issues), the Tribunal makes the following findings of fact in so far as same are relevant to those issues, as follows:-

(i)	The claimant took up a position as a lecturer at Queen’s on 14 February 1994.  He was assisted by Mrs Beverley Carroll who provided research support to teaching staff.  The claimant’s perceived religion is Hindu.  He is of Indian origin and he described his political opinion as left liberal.  From 1995 up until the date of the Tribunal hearing, the claimant has had disputes with his past employers, the University of Pittsburgh, Queen’s University of Belfast, the University of Greenwich, the Association of University Teachers and others.  The claimant is a very experienced and intelligent litigant who has brought claims in Great Britain (where he has been banned as a vexatious litigant) and in this jurisdiction.  He had brought at least 20 cases against Queen’s alone.  He has had extensive experience in discrimination cases before Tribunals.

(ii)	The claimant became a member of the Association of University Teachers (“The Union”) in October 1994.

(iii)	In or about February 1994 while staying with his wife at the Common Room at Queen’s a camcorder belonging to the claimant and his wife was stolen.  At all material times relevant to the out of time issues, each of the individual respondents was an officer of the local branch of the Union based in Belfast.  Dr Duncan Mercer was at all relevant times, both the President of the local Union and the Honorary Secretary of the Queen’s Common Room.  There was an issue regarding compensation for theft of the camcorder which involved Dr Mercer and Mr Jay.  The claimant was outside the jurisdiction for a period from November 1994 until in or about the 7 February 1995 when he returned to work at Queen’s, having been successful in a racial discrimination case against the University of Pittsburgh.  He alleges that when his Director, Professor Moore, heard of the outcome of the Pittsburgh case, a conspiracy subsequently arose together with collaboration against him involving Queen’s, the Union through its officers, Mr Jay, Dr Mercer and Dr Goldstrom, (and Mrs Carroll as a “scapegoat”), and this led to the termination of his employment.  Upon his return to Queen’s in February 1995, issues involving Beverley Carroll and himself were manifesting themselves.  On 9 March 1995 Mrs Carroll became a Union member. Various meetings, telephone calls, and exchanges of correspondence ensued both before and after 9 March.  The claimant was suspended from his employment at Queen’s on 6 June 1995 and his employment ended on 29 June 1995.  The Tribunal is satisfied that Dr Mercer was acting in his capacity as Honorary Secretary of the Queen’s Common Room and not in his capacity as President of the local Union when he forwarded correspondence to Queen’s involving the claimant, in June 1995.

(iv)	Subsequent to the cessation of his employment, the claimant sought a judicial review against Queen’s in relation to what he described as the termination of his employment.  On 20 October 1995 Dr Paul Hudson as Treasurer of Queen’s local AUT changed the status of the claimant’s membership on the basis that the claimant had left the University.  The claimant maintained that his employment subsisted at this stage and that the judicial review proceedings were still ongoing.  Subsequently, on 24 October 1995 Dr Mercer wrote to the claimant and his wife indicating that as he was no longer a staff member of Queen’s, their Staff Common Room membership had lapsed.  This was terminated by Dr Mercer on 8 February 1996. Issues also arose involving correspondence by Mr Jay and Dr Goldstrom to the National Union offices in relation to Legal Aid Committee proceedings regarding the claimant’s case against Queen’s which he had presented to the Tribunal Office, signed by him on 12 May 1995, alleging religious and sex discrimination and victimisation against him by Queen’s and certain members of its staff, including Mrs Carroll. The claimant had also received advice from the Fair Employment Commission in March 1995 in relation to his case against Queen’s, and also sought legal advice from a firm of solicitors.  He issued statutory questionnaires on or about 19 April 1995. 

(v)	The claimant inspected documentation in relation to his case against Queen’s at the offices of L’Estrange and Brett Solicitors some time in February/March 1996.  His claims were then presented to the Tribunal on 19 April 1996 and a statutory questionnaire served thereafter.

10.	Within the framework of the above facts the claimant made various allegations of less favourable treatment and relied, in the first instance, on a continuing act under the statutory provisions (supra) which according to the claimant crystallised after discoverable documentation was sent to him by the Queen’s solicitors L’Estrange and Brett, towards the end of March 1996.  The Tribunal has carefully considered its approach to the issue of a continuing act as set out in the case of Hendricks -v- Commissioner of Police for the Metropolis 2002 CWCA Civ 96, 2003 IRLR 96 and endorsed in the case of Doctor Vivienne Jean Lyfar -v- Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548.  The claimant’s Originating Application to the Tribunal alleging religious/political discrimination and discrimination by way of victimisation was presented to the Tribunal on 19 April 1996.  He alleged that the matter of which he was complaining was still ongoing and that he first knew about the matter in February/March 1996 during the discovery.  The claimant also accepted in evidence that in this Originating Application the last material reference is the allegation regarding Dr Hudson changing his Union status in October 1995.  The separate Originating Application alleging sex discrimination by way of victimisation (presented to the Tribunal on 19 April 1996) also states that the matter of which he is complaining is ongoing and that he first knew about the matter in February/March 1996 during the discovery.  Both applications to the Tribunal were signed on 15 April 1996.  Again the last allegation is in respect of Dr Hudson changing the status of the claimant’s Union membership.  The Tribunal in assessing the evidence on the out of time issues and having considered the submissions both oral and written on this point, found it difficult to establish precisely all of the allegations of less favourable treatment being made by the claimant.  The Tribunal therefore finds it useful to set out in full the text of the document now treated as an amendment to the Originating Applications and entitled “GROUNDS IN SUPPORT OF THE ORGINATING APPLICATION”.  This document relates to all claims and reads as follows:- (following the text literally even though it contains certain errors).

“IN THE INDUSTRIAL TRIBUNAL

CASE NO 00218/FET/96
& 01789/SD/96
Between:

SURESH DEMAN                       
Applicant
v

ASSOCIATION OF UNIVERSITY TEACHERS AND OTHERS
  Respondent

GROUNDS IN SUPPORT OF THE ORGINATING APPLICATION

1.	Various complaints appear in the originating application lodged herein.  The applicant seeks herein to summaries the complaint concisely.

2.	The Applicant, a probationer who commenced employment at the Queen’s University of Belfast (QUB), has made repeated complaints of religious, political and sex discrimination since February, 1995.  Mr Richard Jay was dealing with couple of issues on my behalf since early February 1995.  In particular, I approached Mr Richard Jay, Local Secretary about my treatment by a female staff member of Christian origin in the Department of Accounting & Finance (now called School of Management) at the Queen’s University.  Despite my numerous calls Mr Jay refused to speak to me about my complaint.  Prior to that complaint, and thereafter, there has been a continuing failure to investigate the applicant’s complaints.  By reason thereof, the Respondents have subjected the Applicant to a continuing detriment on religious, political and sex grounds.

3.	The Respondent further discriminated against the Applicant on religious, political and sex ground in that:

3(1)	Mr Max Goldstrom contacted me to set up a meeting with him and Mr John Lynch to discuss my complaint in his office at the University Street.  In this meeting, they told me that in view of religious and political situation in Northern Ireland, I should not be raising issues of discrimination as these matters are very sensitive and people get very set about it.  In general, they not only discouraged me from perusing my legitimate complaint but threatened me that Mrs Carroll may falsely accuse me of sexual harassment (eventually thrown out of University) if I persist in my claims.   Mr Goldstrom also told me that he would speak to Mr Chris McNairney, Senior Personnel Officer to explore whether something can work out to resolve this matter.  When I asked them whether she was a member of AUT, I was told that she was not.  They dismissed me in ten minutes and straight went to see Mrs Carroll who was waiting for them in Mr Richard Jay’s office.

3(2)	After a couple of days I was informed by Mr Goldstrom over the telephone that Mrs Carroll  has become a member of AUT and that Mr Richard Jay will be representing her.  I expressed surprised that Mr Jay has taken her case even though I contacted him first.  I believe, this amounts to discrimination on the ground of my religion and sex.  I was also informed by Mr Goldstrom that he had spoke to Mr McNairney who said he was not interested in any resolution of this problem.

3(3)	Mr Richard Jay in consultations with the officers of the QUB orchestrated complaint of sexual harassment against me from Mrs Carroll.  Mr Jay knew all along there was no substance in her complaint yet continue to let her persist with her complaint to black mail me.  Despite solicited complaints and tainted and religiously motivated investigation by Mr Paul Brown, QUB Equal Opportunity Manager, Mrs Carroll could not substantiate her complaint against me.

3(4)	I lodged a complaint to Dr David Triesman, General Secretary of National AUT in London against the local AUT about my treatment by the local AUT leadership at QUB.  My complaint against the Local AUT was assigned to Mr Everett, Assistant General Secretary, AUT and case was transferred to national unit.  It appears to me that then Mr Everett tried to speak to local leadership about my complaint.  As a result of this the relationship further deteriorated and the local leadership got very annoyed with me and started victimising me.

3(5)	They stopped sending circular of the General Meetings and other activities of the AUT.  In the absence of information about the general meetings, to this date, I could not discuss issues of discrimination and victimisation on grounds of my religion, political opinion and sex.

3(6)	Mr Paul Brown, EO officer and Mr Chris McNairney, Senior Personnel officer at QUB had solicited complaints against me.  Mr Duncan Mercer, President of the AUT at QUB, Lecturer at QUB, and Secretary of QUB Senior Common Room had sent copies of correspondence (without investigation) from me and my wife to them which were used by the Queen’s University officers for my dismissal from the University.  This amounts to discrimination by way of victimisation.  I became aware of this and several other matters when I recovered some documents from QUB personnel files on or about    February – March, 1996.

3(7)	Mr Paul Hudson changed the status of my AUT membership from full member to attached member without any notice, despite my objection and the fact, my case of judicial review and unfair dismissal were yet to be adjudicated.  He wrongly described my termination as though I left the employment at the Queen’s University on my own will.  This shows local AUT’s collaboration with the Queen’s University in termination of my employment.  This was further confirmed by the High Court attendance of Mr Goldstrom accompanied by Mr Chris McNairney, Senior Personnel Officer on behalf of QUB.

3(8)	Mr Paul Hudson and the local AUT refused to give coverage for my cases of discrimination and victimisation in their NEWS Letter despite the wider importance of my case and its implications on all probationers and other people who are due for promotion in the Universities in UK.

3(9)	Mr Duncan Mercer, President of Local AUT, other officers and employees of QUB also took part in expulsion of me and my wife from the QUB membership without regards to rules of natural justice.

4.	The Applicant would not have been so treated had he been a female of Christian origin.

5.	Further or alternatively, the Applicant was victimised and treated in the manner aforesaid by reason of the fact that he made repeated complaints of religious, political and sex discrimination”.  

This document is signed by the claimant and dated 31 January 1997.

11.	For the purposes of considering whether there has been a continuing act, and given the additional complaints raised by the claimant in his evidence, which are not fully reflected in either the Originating Applications or the amendment, the Tribunal has categorised the complaints into five groups according to each Respondent.  However before doing so the allegations of less favourable treatment are set out as follows:- (to be read alongside the claimant’s Originating Applications as now amended).

(i)	(i)	The allegation of conspiracy and collaboration as between Queen’s and the Union and Mrs Carroll as a scapegoat leading to the termination of the claimant’s employment on 29 June 1995.  This involved various allegations of discrimination on the grounds of religion, political opinion and sex and/or victimisation.
(ii)	
(iii)	(ii)	Mr Richard Jay’s action in not investigating the claimant’s complaints against Mrs Carroll (a non Union member) even though the claimant had approached him first as a Union member for assistance in relation to his complaints against her, and further not representing him but instead helping Mrs Carroll in her case against him. The claimant alleged that this constituted discrimination on the grounds of religion, political opinion and sex and/or victimisation.

(iii)	The action of Dr Goldstrom and Mr John Lynch at a meeting arranged with the claimant on 15 March 1995 in discouraging him from pursuing his complaint against Mrs Carroll because of the religious and political situation in Northern Ireland, by threatening that she may falsely accuse him of sexual harassment, and subsequently assisting Mrs Carroll who he was told was not a Union member at that stage. The claimant claimed that this constituted discrimination on the grounds of religion, political opinion and sex and/or victimisation.

(iv)	The admission of Mrs Carroll as a member of the Union on 9 March 1995 and representing her and subsequently permitting her to use an non Union solicitor of her own choice.  This was followed by a recommendation for the reimbursement of her expenses by Mr Richard Jay.  At the same time the claimant also alleged that Mr Jay obstructed the claimant’s choice of his own solicitor.  The claimant alleged that this constituted discrimination on the grounds of religion, political opinion, and sex and/or victimisation.

(v)	The supply by Dr Mercer, in his capacity as President of the local Union and not as Secretary of the Queen’s Common Room of correspondence involving the claimant to Queen’s University in June 1995 in order to facilitate the claimant’s dismissal from Queen’s and then failing to inform the claimant of the time and place of the meeting of the Union’s AGM in June 1995 to discuss his complaints of religious, political and sex discrimination against the officers of the local Union.  The claimant alleged that this amounted to discrimination by way of victimisation.

(vi)	The change of Union membership status from full member of the Union to attached member by Dr Paul Hudson on 20 October 1995 in light of the fact that he had been informed that the claimant’s dismissal from Queen’s was the subject of a judicial review and that his employment still subsisted.

(vii)	Dr Hudson falsely describing the claimant as having left the employment of Queen’s on his own account instead of referring to the termination of the claimant’s employment by Queen’s. The claimant claimed that these complaints (to include the complaint referred to at (vi) above) against Dr Hudson amounted to discrimination by way of victimisation.

(viii)	The one sided coverage by the Union as to the alleged failure of the claimant to attend annual general meetings of the Union on 28 June 1996 and February 1996, refusing to give coverage to his cases of discrimination and victimisation, and further inflammatory coverage by Dr Paul Hudson in the Union’s newsletter in May 1995 and February 1996.  The claimant alleged that this amounted to discrimination by way of victimisation.

(ix)	The action of Dr Duncan Mercer as President of the local Union and other officers in the expulsion of the claimant and his wife from Queen’s University Common Room membership on 8 February 1996.  The claimant alleged that this amounted to discrimination on the grounds of religious belief and/or political opinion and/or discrimination by way of victimisation.

(x)	Officers of the Union pressurised the National Union and prejudicial letters were issued by Mr Richard Jay on 6 March 1996 and Dr Goldstrom on 30 March 1996 to the National Union in relation to not assisting the claimant in his case against Queen’s.  The claimant also added within this issue the previous issue of the Union through its officers, opposing reimbursement of out of pocket legal expenses and refusing him a solicitor of his own choice because of an earlier grudge.  The claimant claimed that this amounted to discrimination by way of victimisation.

(xi)	In general terms the claimant therefore contended that the acts (and omissions) of the respondents extended over a period from February 1995 until March 1996.

12.	Dr Duncan Mercer

The Tribunal finds that, in relation to Dr Mercer, the substantive complaints against him involve the period up to June 1995.  Thereafter, there are allegations of collaboration made against him in correspondence sent by the claimant to Dr Geoffrey Talbot, Secretary of the Union’s Legal Aid Committee based in London which is dated 25 November 1995.  Apart from this, the other complaint relates to correspondence forwarded by Dr Mercer to the claimant on 8 February 1996 regarding termination of his membership of the Common Room at Queen’s.  This followed earlier correspondence on 24 October 1995 regarding lapsed membership of the Common Room.  

Richard Jay

The complaints against Mr Jay end before June 1995, apart from correspondence sent by him on 6 March 1996 to Dr Geoffrey Talbot, Secretary of the Union’s Legal Aid Committee.

Dr Max Goldstrom

The complaints against Dr Goldstrom relate to a period up to April 1995 apart from his attendance with Mr Chris McNairney at a judicial review hearing involving Queen’s.  This is referred to in the last paragraph of correspondence from the claimant to Dr Joanna De Groot, President of the Union dated 23 January 1996.  However, the Tribunal had no evidence before it as to when this episode occurred.  The claimant also complained about correspondence forwarded by Dr Goldstrom to Dr Talbot on 30 March 1996.

Dr Paul Hudson

The principal complaint against Dr Hudson is that on 20 October 1995 he changed the status of the claimant’s Union membership.  The other complaints relate to publications in the Union’s newsletter in May 1995 and February 1996.

The Union

	The claimant made a number of complaints against the Union itself and through its officers which is reflected in the foregoing analysis, including the amended Originating Applications.

13.	The Tribunal focused on the substance of the complaints that the respondents were responsible for an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably on the grounds of religious belief, political opinion, and sex and/or that he was also victimised.  The question before the Tribunal is whether that is an act extending over a period as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.  The Tribunal concludes that there was not a continuing act ending with Dr Goldstrom’s correspondence to Dr Talbot on 30 March 1996 or that the act crystallised in March 1996 as the claimant claimed.  The written submissions, which are appended to this decision, refer to the out of time issues and the relevant case law.  The Tribunal refuses to exercise its discretion to extend time on just and equitable grounds.  The claimant was well aware of the issues as they arose except for his claim that he discovered in February/March 1996 that correspondence had been forwarded by Dr Mercer to Queen’s in June 1995.  The Tribunal refers to its finding of fact in this regard that Dr Mercer forwarded this correspondence in his capacity as Honorary Secretary of the Queen’s Common Room and not as President of the local Union as alleged by the claimant.  The claimant offered no credible explanation for his delay in presenting the claims to the Tribunal on 19 April 1996.  The Tribunal will therefore only consider his complaints from 19 January 1996 as being in time.  The Tribunal is also aware that the allegations which are ruled out of time potentially emerge as evidential issues pursuant to the judgement of Mummery J in the EAT decision in Qureshi –v- Victoria University of Manchester (2001) ICR 863, which is cited with approval in Anya –v- University of Oxford and Another (2001) IRLR 377 CA (“Anya”).  In this context the claimant also relied on events subsequent to 19 April 1996.

The Remaining Issues

14.	Having carefully analysed the evidence before it in relation to the remaining issues set out above the Tribunal found the following facts proved on a balance of probabilities:-

(i)	The claimant commenced employment in Queen’s on 14 February 1994.  He was assisted by Mrs Beverley Carroll who provided research support to teaching staff.  The claimant’s perceived religion is Hindu.  He is of Indian origin and he described his political opinion as left liberal.  From 1995 up until the date of the Tribunal hearing in this case, the claimant has had disputes with his past employers, the University of Pittsburgh, Queen’s University of Belfast, the University of Greenwich, the Association of University Teachers and others.  The claimant is a very experienced and intelligent litigant who has brought claims in Great Britain (where he has been banned as a vexatious litigant), and in this jurisdiction.  He has brought at least 20 claims against Queen’s alone.  He also brought claims against the Union in London – 2 in 1996, 2 in 1999, and another in 2002.  He has therefore had extensive experience in discrimination cases before Tribunals.  The claimant became a member of the Union in October 1994.

(ii)	In or about February 1994 while staying with his wife at the Common Room at Queen’s a camcorder belonging to the claimant and his wife was stolen.  At all material times each of the individual respondents was an officer of the local branch of the Union based in Belfast.  Dr Duncan Mercer was at all relevant times, both the President of the local Union and the Honorary Secretary for the Queen’s Common Room. There was an issue regarding compensation for theft of the camcorder which involved Dr Mercer and Mr Jay.  The claimant was outside the jurisdiction for a period from November 1994 until in or about 7 February 1995 when he returned to work at Queen’s, having been successful in a racial discrimination case against the University of Pittsburgh.  The Tribunal accepts that Queen’s, through Professor Moore, the claimant’s Director, was aware of the successful outcome of the claimant’s case against the University of Pittsburgh.  The Tribunal is satisfied that the claimant was subsequently given a salary increase on or about 6 February 1995 solely based on merit and for no other reason.

(iii)	The Tribunal also accepts that the claimant had certain issues with Mrs Carroll in the context of the administrative support she was giving him.  The claimant had already written to Dr Mercer on 15 February 1995 complaining about lack of progress in resolving the camcorder issue.  Further correspondence ensued between Mr Jay and the claimant culminating in correspondence from the claimant to Mr Jay of 28 February 1995 complaining about harassment by Mrs Carroll and asking the Union for assistance.  The Tribunal accepts Mr Jay’s evidence on this point and is satisfied that he had not seen this correspondence prior to Mrs Carroll becoming a Union member on 9 March 1995.  The Tribunal found Mr Jay to be an honest and straightforward witness and accepts his evidence that his first contact with the claimant regarding issues with Mrs Carroll was on or about 9 March 1995 when the claimant left a message on his answer machine.  By this time Mr Jay had already consulted with Mrs Carroll in or about the beginning of March and 9 March regarding issues she had raised involving the claimant.  However, because she was not a Union member he could not progress the matter and therefore assisted her in completing the necessary application form leading to Union membership on 9 March 1995.

(iv)	Owing to the possibility of conflict of interest, Mr Jay referred the claimant to Dr Goldstrom, membership Secretary of the local Union.  The claimant met with Dr Goldstrom and Mr John Lynch, also an official of the Union on 15 March 1995.  At that stage the claimant made specific allegations against Mrs Carroll that she was treating him less favourably on the grounds of race and religion.  It is clear to the Tribunal, on the evidence before it, that had the claimant been able to do so at the time, he would have included a racial discrimination complaint in the proceedings before this Tribunal as his primary complaint. The Tribunal accepts that Dr Goldstrom discouraged the claimant from making allegations of discrimination without independent advice.  The claimant was not satisfied with the advice he was receiving and requested a non white official from the Union to assist him.  Attempts were made by Dr Goldstrom to obtain such an individual.  Ultimately, in late March 1995 Dr Goldstrom confirmed that Mr Brian Everett a regional official would provide assistance for him.  

(v)	Earlier in his correspondence to the claimant of 23 February 1995 Mr Jay had recommended the services of Francis Hanna & Company, Solicitors whom the claimant subsequently contacted.  However, it was because the claimant had already contacted that firm of solicitors that Mrs Carroll was subsequently offered the services of another solicitor with the payment of all necessary fees being covered by the Union.  The Tribunal sees nothing exceptional in this arrangement.  The Tribunal is also satisfied that the claimant had a dispute with Francis Hanna & Co, Solicitors, and made serious allegations against the firm.  In consequence efforts by the Union to provide him with legal advice were terminated.  
	
	(vi)	The claimant sought advice from the Fair Employment Commission in March 1995 in relation to taking a case against Queen’s, and also obtained advice from a firm of solicitors.  He issued statutory questionnaires on 19 April 1995 and signed an Originating Application to the Tribunal which he dated 12 May 1995 alleging religious and sex discrimination and victimisation against him by Queen’s and certain members of staff including Mrs Carroll.  It is clear to the Tribunal that in parallel with his Tribunal proceedings against Queen’s, he had developed a strategy for establishing a case against the respondents in these proceedings.  The Tribunal does not accept, on the evidence, the claimant’s allegations that there was a conspiracy as between certain members of staff at Queen’s and officers of the Union, using Mrs Carroll as a scapegoat in terms of encouraging her to make a complaint of sexual harassment against him and then by assisting her as a Union member in lodging a formal complaint with Queen’s against him.  The Tribunal formed the view that the claimant was deliberately attempting to conflate and confuse issues (which were really separate) as if they were part of an overall plan and conspiracy to get rid of him, in the first instance, from Queen’s.  The Tribunal was shown documentation relating to the claimant’s suspension and the cessation of his employment on 29 June 1995 and finds that it has no reason to support the claimant’s further contention that a conspiracy and collaboration involving Queen’s and the Union somehow influenced or led to the cessation of his employment.

	(vii)	The Tribunal is satisfied that the claimant’s complaints relating to the agenda for the general meetings of the Union on 28 June 1995 and in February 1996 are without foundation, particularly in light of Mr Titterington’s evidence in chief relating to his attendance at one such meeting on 26 June 1996, some time after the claimant lodged his Originating Applications in this case.  Mr Titterington had received written notice of this AGM and had noted that there was an item on the agenda to discuss a complaint by the claimant.  The Tribunal accepts his evidence that some days after this AGM he met the claimant in Botanic Avenue in Belfast and expressed surprise that he had not been at the meeting.  The claimant stated to Mr Titterington that he had not known that the matter was going to be on the agenda.  This item appeared on the Agenda of the Union’s AGM on all three occasions.  The Tribunal is satisfied that the claimant did know of the dates for the Annual General Meetings and that these were circulated to him and others with the Union newsletter.  

	(viii)	The Tribunal examined the allegations against Dr Hudson in relation firstly to the Union AGM newsletters of May 1995 and February 1996 and again, in the context of the allegations by the claimant relating to a Union newsletter article on 8 July 1996 referring to the claimant’s non-attendance at the AGM earlier in the year.  The Tribunal has also had regard to the claimant’s allegations against Dr Hudson covering the period from May 1999 to October 2000.  The Tribunal sees nothing exceptional in anything published by Dr Hudson in the context of the serious allegations made by the claimant.  An example of these is contained as a written footnote to correspondence forwarded by Mr George Dunn, Honorary Secretary Belfast AUT dated 29 April 1996 regarding the agenda for the next general meeting which states:

		“IN CONFIDENCE

		Yes, I would like to carry forward items which were placed on the agenda last year in June and also this year in February.  Unfortunately, I did not receive any notification for AGM because of deceitful dishonest, religious fanatic, sexist and also racist bias in the AUT at QUB unit.  I hope I get a chance to express my views on the subject matter and expose the collaborators such as Mr Duncan Mercer and others.  

		Sincerely yours,

		S Deman
		14.5.96”.

(ix)	Dr Hudson changed the claimant’s status within the Union to attached member in correspondence to him of 20 October 1995.  There is no evidence before the Tribunal that the claimant’s employment at Queen’s, subsisted beyond 29 June 1995.  Dr Mercer was also entitled, in such circumstances, to indicate to the claimant and his wife in correspondence of 24 October 1995 that:-

“Mr Black has asked me to write to you to clarify your position with regards to membership of the Common Room.  As you are probably aware the membership year ends on 30 August and we are now advised that you are no longer a current member of the Queen’s academic staff.  Indeed at the recent hearing in the Small Claim’s Court you stated that you had decided to leave QUB.  In the circumstances I am writing to inform you that your memberships have lapsed and that you should at the earliest convenience return your membership cards to the Office in the Common Room.  To avoid embarrassment you should make no further attempt to enter or use the facilities provided by the Club for its members.

		Yours sincerely,

		Dr. W. D. Mercer
		Honorary Secretary”.

	The Tribunal is satisfied that it was entirely appropriate for Dr Mercer to forward further correspondence regarding termination of the claimant’s membership of the Common Room on 8 February 1996.  

(x)	Having carefully examined the evidence, both oral and documentary, up to and including 8 February 1996, the Tribunal accepts Dr Mercer’s evidence that he was acting, at all relevant times, solely in his capacity as Honorary Secretary of the Queen’s Common Room in correspondence between the claimant and himself and between himself and Queen’s.

(xi)	The Tribunal has examined the evidence in relation to the correspondence from Mr Jay on 6 March 1996 to Dr Talbot, Secretary of the Union’s Legal Aid Committee.  This correspondence is entitled “Private and Confidential” and because of the importance attached to it by the claimant, the main substance of the correspondence is reproduced below:-

	“I understand from informal remarks that the Legal Aid Standing Appeal Committee has referred Mr Deman’s claim for legal assistance back to the Legal Aid Committee.  I also understand that some of the reasons behind this are based upon claims made by Mr Deman about the way in which the Legal Aid handled its relations with him and with Mrs Carroll at an early stage in this business.  May I say that, in general terms, I find it bizarre that the Appeal Committee should have acted as if it accepted Mr Deman’s version of events without cross-checking these with other relevant parties.  As one of the relevant Legal Aid officers, who is currently being subject to a scurrilous and possibly defamatory public campaign of abuse by Mr Deman, I take great personal and professional exception to the implication that Legal Aid Appeal Committee is taking Mr Deman’s account on trust, and that it is not worth even consulting myself or my colleagues.

	If I have misunderstood the nature of this decision, then I should be grateful for your help in correcting the error.  In case there should be any doubt, I have provided my own account of my entire dealings with Mr Deman for the record, and the immediate matters raised by his allegations about Mrs Carroll.

	Yours sincerely

	Richard”.

	The Tribunal is satisfied that there is nothing out of the ordinary in relation to this correspondence given the context in which it was written.  

	(xii)	Dr Goldstrom’s correspondence to Dr Talbot dated 30 March 1996 is in the context, first of all, of correcting certain statements made by the claimant to the Legal Aid Appeal Committee which, according to Dr Goldstrom’s correspondence “were untrue or misleading and I wish to correct those of which I have personal knowledge”.  Secondly Dr Goldstrom furnished a chronological account of how the Union’s Legal Aid Committee dealt with the claimant’s case.  The Tribunal is also satisfied that there is nothing out of the ordinary in relation to this correspondence given the context in which it was written, and is therefore satisfied that the correspondence from Mr Jay and Dr Goldstrom was not an attempt to influence the Legal Aid Committee nor could it be interpreted as prejudicial correspondence as alleged by the claimant.  

	(xiii)	Although the Tribunal does not have evidence as to the precise date involved, it finds that the mere attendance by Dr Goldstrom along with Mr McNairney of Queen’s University at a judicial review involving the claimant and Queen’s University is not in its very nature, an event which could be interpreted as the Union somehow siding with Queen’s University against him, or that it is capable of constituting an act of unlawful discrimination.  

	(xiv)	Statutory questionnaires were served on Dr Mercer alone as appeared from the claimant’s correspondence of 2 May 1996.  The respondents did not furnish replies to the questionnaires.  This, however, was against the background of the respondents’ contention that the claimant’s claims were out of time and that there were preliminary issues in the case.  Furthermore, the claimant does not appear to have raised any issue regarding the questionnaires in Case Management Discussions preceding the hearing of the cases.  There was no evidence before the Tribunal of a breach of any relevant Code of Practice.

(xv)	The Tribunal did not consider the claimant to be a credible witness, and, in areas of conflict of evidence, preferred the respondent’s evidence.

The Law and Burden of Proof

15.	(i)	The relevant law in relation to these claims is to be found in section 16 of the Fair Employment (Northern Ireland) Act 1976 as amended by the Fair Employment (Northern Ireland) Act 1989, (similar provisions were re-enacted in Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998), and Article 3 of the Sex Discrimination (Northern Ireland) Order 1976.  The law in relation to victimisation is found in section 16 of the Fair Employment (Northern Ireland) Act 1976 (and was re-enacted in substantially similar terms in Article 3(4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998), and, in relation to sex discrimination, in Article 6 of the 1976 Order.  The Tribunal also considered Article 7 of the 1976 Order in relation to the basis for comparison.

	(ii)	In contrast to the comparison exercise to establish less favourable treatment in direct discrimination claims, the comparison exercise involved in victimisation claims does not take into account factors such as the sex, religious belief or political opinion of the claimant.  The correct comparison is with a person who has not done a protected act and factors such as that person’s sex, religious belief or political opinion are immaterial.

	(iii)	Regulation 24 of the 2003 Fair Employment Regulations inserts a new section 38A in the 1998 Order.  It deals with the burden of proof and provides:-

“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant; 

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case maybe, is not to be treated as having committed that act”.

	Regulation 24 applies in relation to proceedings instituted before 10 December 2003.

	Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (as substituted by the Sex Discrimination (Indirect Discrimination of Burden of Proof) Regulations (Northern Ireland) 2001, makes similar provision.  These Regulations also provide that Article 63A applies in relation to proceedings instituted before the commencement date of the Regulations.

(iv)	In the case of Igen Ltd (formerly Leeds Carers’ Guidance) and Others -v- Wong; Chamberlain Solicitors -v- Emokpae; Brunel University –v- Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance also applies to cases of discrimination on the grounds of religion/political opinion and victimisation and states as follows:-

(1)	Pursuant to Section 63A of the 1975 Act, it is for the claimant who complains of [sex] discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant.  These are referred to below as ‘such facts’.

(2)	If the claimant does not prove such facts he or she will fail.

(3)	It is important to bear in mind in deciding whether the claimant has provided such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5)	It is important to note the word ‘could’ in Section 63A(2).  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see where inferences of secondary facts could be drawn from them.

(6)	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(8)	Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act.  This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(9)	Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10)	It is then for the employer to prove that they did not commit, or as the case may be, is not to be treated as having committed, that act.

(11)	To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12)	That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)	Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of poof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

Case Law and Conclusions

16.	The Tribunal has considered the relevant claims of victimisation and the protected acts referred to by the claimant in his evidence.  Although it is likely that each of the respondents was aware that proceedings had been instituted against Queen’s and a number of individuals, it is satisfied that a causal nexus has not been established by the claimant between the fact of having done any of the protected acts he referred to in his evidence and the alleged decision by the respondents or any of them to impose less favourable treatment.  In this respect the Tribunal had regard to the cases of Aziz -v- Trinity Street Taxis Limited [1988] ICR 534, Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830, and the House of Lords decision in St Helen’s Metropolitan Borough Council –v- Derbyshire and others [2007] IRLR 540.  The claims of victimisation are therefore dismissed.

17.	(1)	The Tribunal considered the Northern Ireland Court of Appeal decision in McDonagh & Others -v- Hamilton Thom Trading as the Royal Hotel Dungannon (2007) NICA 3 together with the cases of Madarassy –v- Nomur International PLC (2007) IRLR 246 (“Madarassy”), Laing –v- Manchester City Council (2006) IRLR 748 EAT and Mohmed –v- Westcoast Trains Ltd (2006) UK EAT O682053008.  It is clear from those authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57 -

“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

‘Could conclude’ in s.63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of inadequate explanation’ at this stage …, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by S.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.

(2)	In his Originating Applications, as amended, the claimant relies on Mrs Carroll whom he termed “a female staff member of Christian origin”, as his comparator.  In his written submissions to the Tribunal he refers, in addition, to any hypothetical comparator.  The Tribunal considered the recent House of Lords decision in Watt (formerly Carter) (sued on his own on behalf of the other members of the Labour Party) –v- Ashan [2007] UKHL 51, [2008] IRLR 243 and in particular the judgement of Lord Hoffman at paragraph 36 where he states:-

“The discrimination which section 12 makes unlawful is defined by section 1(1)(a) as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon –v- Chief Constable of the Royal Ulster Constabulary (2003) ICR 337.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

(1)	The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.

(2)	The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be, or be assumed to be, the same as, or not materially different from, those of the complainant: section 3(4).

(3)	The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case”.

(3)	The claimant laid no evidential basis for a hypothetical comparator other than Mrs Carroll.  The Tribunal is not satisfied, having also taken into account the principles in Anya, that the claimant has proved facts from which conclusions could be drawn that he was treated less favourably on the grounds of sex, religious belief or political opinion (and/or victimisation, had these claims not 

already been dismissed on another basis).  The claimant’s claims against the respondents are therefore dismissed.

Chairman:

Date and place of hearing:	6th, 7th, 8th, 9th, 12th, 13th, 14th, 15th, 16th, 20th, 21st, & 22nd November 2007 and 25th January 2008.

Date decision recorded in register and issued to parties:

Case No. 00218/96/FET&01789/96/SD
The Fair Employment Tribunal 
Sitting In Belfast

S. Deman

Claimant 

v

AUT, Dr. Duncan Mercer, Richard Jay and Paul Hudson
  
         Respondents

C’S SUBMISSIONS
______________________________________________________________

A:	JURISDICTION:

1.	Claimant and the Respondents will be called as “C” and “R” respectively. C has put a chronology of factual matrix in his witness statement.  

2.	C is not going to rehearse the chronology. It is accepted that R have not replied to RR65 questionnaires although two of the Respondents are or have been the lay members of the Tribunals in Belfast and they also had benefit of the counsel and solicitor’s legal advice.   

(i)	JUIRISDICTIONAL ISSUE:

3.	There are no jurisdictional issues. Under the sections 50 and 76 of the FE [NI] Act 1989 and SD [NI] Order 1976 respectively any aggrieved person can bring proceedings against a party in an Employment Tribunal within 3 months time.  

(ii)	TIMELINESS ISSUE:

A.	INSTITUTIONALISED OR GENERALISED DISCRIMINATION:

4.	The Claimant would rely that the Respondents have put in place a discriminatory regime to carry out discrimination and victimisation against him. In this regard he draws attention of the Stephen Lawrence enquiry Chaired by Sir William McPherson of Cluny, in which in paragraph 6.34 the following definition was given of institutionalised racism: 

"The collective failure of an organisation to provided a appropriate and professional service to people because of their colour, culture, or ethnic origin.  It can be seen or detected in process, attitude and behaviour which amount to discrimination through unwittingly prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people."   

The above principles apply even if every one in organisation is not individually racist. Respondents may rely upon the EAT decision in Commissioner of Police for the Metropolis v J Hendricks [2002]. The essential point is not whether the EAT’s view of institutionalized racism and its relevance in the above case was correct, (although it is noted that the EAT’s decision has been overturned by the Court of Appeal, see below: 

“To describe an ongoing situation or state of affairs was, the Court of Appeal said, a more precise way of characterising Ms Hendricks’ case than to use “institutionalised racism” or a “prevailing way of life”, a “general policy of discrimination”, or a “climate” or “culture” of unlawful discrimination”.  

The Employment Appeal Tribunal sidetracked into focusing on whether a policy could be discerned. 

B.	CONTINUING ACTS EXCEPTION UNDER SECTION 76(5)(b):	

5.	In Littlewood Organisation plc v Traynor [1993] IRLR 154 the Claimant had complained of racial abuse by his supervisor. The employer had agreed to certain remedial measures, but failed to carry out, and conditions remained the same. The EAT held that the complaint was made in time. Paragraph 11 of their decision EAT, Chaired by Lord Coulsfield, has this to say:

"The decision whether there is a single act having continuing consequences or a continuing act is one that must involve consideration of the particular circumstances …a situation involving racial discrimination continued and allowing that situation to continue amounted to a continuing act." 

6.	Next consider Owusu v London Fire & Civil Services [1995] 574.  This case provides helpful definition and explanation of the phrase "act extending over a period” that has been approved by Court of Appeal.  

"What is continuing is alleged in this case to be practice which resulted consistent decisions discriminatory of Mr. Owusu." 

7.	The EAT in Derby Specialist Fabrication v Burton also refers to the well- known dicta in Driskel v Penninsular Business Services Ltd [200] IRL 151 in relation to the importance of having regard to the impact of totality of successive incidents and not adopting a fragmentary approach to the evidence, see, Qureshi v Victoria University of Manchester [unreported] 21 June 1996:

	"We agree with that approach. An employment tribunal in successive cases should have regard to the totality of a number of successive incidents, because the may well be a cumulative effect. If looking at them overall as a breach of contract they can be seen to be or inferred to be based on racial grounds, so that the complainant would have been treated differently but for his race, then the repudiation by the employer of the contract of employment is to be treated as racially discriminatory."   

8.	Anya v University of Oxford [2001] EWCA Civil 405; [2001] ICR 847 (CA), at 854E (citing with approval the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863, note, which, in turn, was citing the CA in Chapman v Simon [1994] IRLR 129, at para 43, and at para 10, 855E;

"When determining a complaint of discrimination which involves a number of incidents, the tribunal should not just consider the incidents in isolation, but should look at the totality of the evidence”[Anya at 854E-855B]. 
	
9.	Claimant would also rely upon the “continuing act” exception under Section 76(b) that act “shall be treated as done at the end of that period”.  In the Claimant ’s case 12 March 1996 is the turning point when the act of discrimination crystallised when the QUB disclosed the documents consisting of correspondence of Mr. Jay & Dr. Mercer with the QUB officers [C1: p.173-174]. There are number of authorities in support, for example, Commissioner of Police for the Metropolis v J Hendricks [2003] IRLR 96, March v AIB Group (UK) PLC, EAT 24 February 2003,Internationa Domestic Practice v Strathclyde Fire Brigade, EAT 17 January 2001, etc. 

IRL BULLETIN EDITOR COMMENTS: Hendricks like Owusu, highlights the distinction between individual acts of discrimination, and those which constitute a continuing act of discrimination, Hendricks provides a reminder that this distinction is often a fine one, and that frequently to reach a conclusion on this issue before all the evidence has been presented.  

10.	In relation to the suggestion that the claim was out of time, the Claimant will rely upon the decision on Clark v Hampshire Electroplating Company Limited [1991] IRLR 491. In course of disclosure by the QUB and the Respondents in London Claimant became aware of a number of series of actions of the Respondents.  On or about 1997 R provided the Claimant some documents in relation to time point, which was not a complete list [C1: p. ???]. The Tribunal should note the second paragraph of the head note in Clark:-

"…s 68(6) should be consider whether it was reasonable for the claimant not to realise that he had that cause of action or, although realign it, to think that it was unlikely that he would succeed in establishing a sufficient prima-facie case without evidence of comparison."  

11.	C would like to draw attention of the Tribunal to Section 76(5)© of the SD [NI] Order 976 which provides that:-
 
"A deliberate omission shall be treated as done when the person in question decides upon it;

and in the absence of evidence to the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might have been expected to do the omitted act if it was to be done."

The Claimant’s case is that there was a deliberate omission on the part of Respondents to provide services of the Union. Last five lines of Section 76 of SDA 1976 set out above when a person shall be taken as deciding upon an omission. 
C.	JUST AND EQUITABLE UNDER FEA 1989 & SDA 1989 SECTIONS 50((3) & 76(5):
 
12.	R does not argue that C’s all claims are out of time as they are within 3 months time limit. Claimant makes this application that the Tribunal consider whether, notwithstanding the Respondents’ argument on out time claim in relation to part of the claims, it was just and equitable to extent the time limit.  The jurisdiction arises under Section 50(3) & 76(5) of the FEA 1989 and DSA 1976 which provide that a Tribunal/Court may:-  

"nevertheless consider any such complaint, claim or application which is put out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."  

13.	There has been no prejudice to the Respondents if time were extended, as they have to defend other claims. So there is no additional cost to the Respondents. 

14.	On 2nd May 1996 Claimant served FE28 & SD questionnaires upon the Respondents. However, Rather than providing a reply to statutory questionnaires completely remained silent. Although the Respondents would normally expected to reply to statutory questionnaires in the Claimant ’s case chose to browbeat him into submission by aiding discrimination by joining the C’s employer in bringing proceeding against him and contributing to his dismissal and/or stifle his appeal and legal aid. The Claimant would invite the Tribunal to draw an inference from the Respondent’s conduct in above failures. There was no reason for the Respondents whatsoever for not to reply to C’s request in proper forms or at all.

15.	Claimant draws attention of the Tribunal to the decision of the Employment Appeal Tribunal in British Coal Corporation v Keeble [1997] IRLR 336 & EAT in International Domestic v Strathclyde Fire Brigade [2001] sets out.   The decision refers, of course, to the analogous provisions of Section 33 of the Limitation Act 1980, which deals with the exercise of discretion by the Courts in personal injury cases. According to the report in Keeble, Section 33 requires the Court to:-

"consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and, in particular, to

(a)	Relative Prejudice 

(b)	The General Circumstances of the Case 

(c)	The length of and the reasons for the delay;

(d)	The extent to which the cogency of the evidence was likely to be affected by the delay;

(e)	The extent to which the party sued had co-operated with any request for information;

(f)	The promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; 

(g)	The presence or absence of any remedy for the Claimant;

(h)	The conduct of Defendants/Claimant s subsequent to the act complained of and;

(i)	Medical condition.

16.	Now Claimant will go through each of the above factors:-

(a)	Relative Prejudice

There will clearly be prejudice to the Claimant if the part of his claim was not allowed and no prejudice to the Respondents, as they have been given an opportunity to defend that part of the claim, which is within time and also which purported to be out of time.  In fact, to date and during the course of hearing the Claimant has not seen any objective reasons from the Respondents what prejudice they have suffered? In contrast to C they not only had benefit of legal advice and representation but also full backing of the Tribunal.  

(b)	The General Circumstances of the Case

There is a long chequered history between the Claimant and the Respondents. This is not a case in which the Respondents can realistically or reasonably claim that they are taken by surprise. Apart from the earlier history, C already had claims against the National AUT but different individual Respondents in London. That date was certainly within the limitation period. It would be realistically for any potential Respondents to ensure that any record in respect of the matter was retained at that time. Claimant became fully aware when his employer, QUB and the National AUT disclosed documents containing prejudicial material sent to QUB and the AUT Head Office to cause detriment, namely; contributing to dismissal, denial of legal aid and other services. The Tribunal would expect the Respondents observe the FEC Code of Practice, which R failed to do so.  
 
(c)	The length of and reasons for the delay 

The delay, if there has been any, in lodging the claim as to part of the claim has not been considerable. C has acted immediately when the act of discrimination had been crystallised upon receipt of documents from the QUB and the National AUT and having acquired knowledge ofnewfctas. Had the Claimant jumped to a premature conclusion about the acts of discrimination and victimization, both the Respondents and the Tribunal would have accused him of being overly sensitive and unreasonable. Therefore, the Claimant wanted to have certain degree of certainty before a making a claim to the Tribunal.  

(d)	The Extent to which the Cogency of the Evidence is likely to Affected by the Delay

The Respondents have sensibly retained most of the documents [obtained from the National AUT in London] and were prepared to defend the claim in full.  If it has not, it may be that it only has itself to blame. The documents were still in the Respondents possession and their claim that they cannot find some of them then cogency of evidence is unlikely to be affected to any material factor by the delay. As to undisclosed documents, if the Respondents have defended without them other part of the claim then they have done the same with part, which appears to be out of time although they are not relying upon this reason. The Tribunal should draw an inference why the Respondents were unable to produce notes of Mr. Jay, Dr. Mercer and Dr. Hudson’s notes of Mrs. Carroll’s interview, copies of the Membership Rules, a copy of the QUB notification of employees who left and new employees who joined the QUB, etc.   

(e)	The Extent to which the Party Sued had Co-operated with any Request for Information

Clearly, the Respondents have not co-operated fully with the Claimant and the Tribunal and also have failed to respond to reasonable inquires, notes of interview and discussions with Mrs Carroll and QUB Officers`, access to fair complaints procedures, monitoring of complaints, failure to reply to FE28/SD questionnaires, etc. Further R failed to fully cooperate in compliance of the orders of the Tribunal in relation to preliminary point on the time issue, for example, Mr Jay and Dr. Goldstrom’s failure to disclose letters of March 1996 to national AUT officer, Dr Talbott were highly relevant [C1: p. 84-89, 97-99 & minutes of AUT EC re: agenda issue]. If the respondents had done so, the position would have been different. The respondents' policies and practices have reached the highest form of discriminatory practice as described by Court of Appeal in Hendricks and Dr. Singh and Ismail’s study at R’s institution. The Respondents chose to ignore perfectly reasonable requests of the Claimant. No argument has been put forth why the Respondents did not reply to Claimant’s FE28/SD questionnaires and inquiries. It is clear that this factor is very substantial and important and should go in Claimant ’s favour to a great deal.  It is a very important factor against the Respondents in the exercise of discretion.	

(f)	Promptness with which the Claimant Acted once he knew the Position

From the Claimant's point of view, he only knew the clear position on 12 March 1996 when he inspected the documents at the QUB’s solicitors’ office. He also served FE28/SD questionnaires on 2nd May 1996. The claim was presented on 16 April 1996. In the context of this matter, and bearing in mind that the Claimant is entitled to seek advice from his legal advisor in view of the Respondents’ threats, that does not seem to be a lengthy period.  Hence, the Tribunal should conclude that the Claimant acted promptly once he knew of the facts giving rise to the cause of action.

(g)	The presence or absence of any remedies.

Claimant has no other remedies against ongoing policies of discrimination and victimisation and exclusion over an extended period of time to deny him union services and contribution to his dismissal [hence livelihood].  

(h)	The conduct of Respondent/Claimants subsequent to the act complained of

The Respondents [two being lay members] tried to browbeat the Claimant into submission by treats of costs, refusing to reply to FE28/SD Statutory Questionnaires and joining the employers in disparaging campaign in AUT Newsletters, failure to nominate on TUC delegate and browbeat him for a very long time with the help of Tribunals’ staff and some members of the judiciary. 

(i)	Medical Condition

The conduct of the Respondents alongside with the QUB has caused a great deal of anxiety and depression to the Claimant for which he has been under medical advice due to anxiety depression and was off sick for a very long time from October 1995.    

D.	AMENDED GROUNDS OF ORIGINATING CLAIM 

17.	I made claims in the Fair Employment Tribunal and the Industrial Tribunal on 15 April 1996 outlining my complaints briefly on the basis of information available to me at that time. On 2 May 1996 I also served upon the respondents FET/SD statutory questionnaires, which have received no attention of the R to this date.

18.	C had applied to the Tribunal on 31st January 1997 to amend the grounds of his claim. The R had not yet entered a proper notice of grounds for resistance except a letter of 1st May 1996 to the Tribunal.  On 10th February 1997 the Tribunal copied C’s request for an amendment of ET1 to R. However, R had not taken any objections to the amendments although they had plenty of opportunity to do so. Rs by their conduct have acquiesced in the proceedings and it is too late now to raise any objection on time issue [C2: p. 47-49, 50].

19.	Harvey on Employment Law is very clear as the C could make an application to amend his claim at any stage of the proceedings. In fact, amendments could also include the basis of claim or remedies. For example, see Home Office v Bose [1079] ICR 481. However, in the present case C does not seek to amend his ET1 in the above respect excepting providing the further details of the particulars of the claim, which he prepared after speaking to the CRE counsel, Mr. Manjit Singh Gill following a directions hearing in London.  

Therefore, the Tribunal should allow the amendment of to his ET1 and the part of the claim, which R purported to think, could be out of time. Alternatively, given the material dispute of facts on the Respondents’ version of facts and the Claimant ’s now Tribunal has heard all the evidence and should rule in favour of the Claimant on time issue. 

E.	R’S FAILURE TO ENTER THE GROUNDS FOR RESITING THE CLAIM

20.	On 1 May 1996 respondents’ solicitor Mr Daly who previously some time in March 1996 advised C not to pursue his claims against Dr Mercer, President of the QUB-AUT and the AUT wrote to the tribunal giving erroneous excuse for not formally responding to my claims and asked that his letter should be treated as an informal response to my claims but did not request for an extension of time to enter a Notice of Appearance on behalf of the above respondents. R did not even complete the ET3 form on behalf of any of the respondents. On 14 May 1996 nearly after 4 months from the date of my claims Mr Daly also wrote to me complaining about legibility of FET/SD & IT1 although the tribunal did not have any complaints about the legibility of my claims as I personally hand delivered to the Office of the IT&FET.  On 18 May 1996 I referred Mr Daly to the Office of the IT&FET if they have any problems. I wrote to him as follows: “If the Tribunal determines that there is a problem with my complaint, I will be happy to provide another copy”.  In my above letter I expressed concerned about his past conduct and delaying tactics [C2: p. 1-8, 11-12, 13, 14-29, 30, 31]. 

21.	On 20 December 1995 I had applied to the tribunal for orders for discovery. On 6 January 1997 Mr Maguire, President of the IT&FET made an order against the Respondents to make discovery and allow inspection to the Claimant of the documents set out in the schedule with 21 days of the date of his order. On 10 January 1996 Mr Maguire also made an order that my claims be heard and determined together by the Fair Employment Tribunal rather than Industrial Tribunal. On 10 January 1996 I made an application to the tribunal under Rule 4(5) of the IT&FET requesting to debar the respondents from defending the proceedings.  In the same letter I also requested the tribunal to allow an amendment to include QUB, Board of Curators and the Senate Appeal Committee as respondents in my claims.  I provided my ground in support of my application. Unfortunately my letter of 10 January 1997 disappeared from the tribunal file but was found when I produce proof of delivery to the tribunal. After 9 months on 24 January 1996 the respondents’ solicitor formally provided a document to the tribunal entitled, “Grounds on which the respondents intend to resist the application’s claims”. Although R’s solicitor chose to threaten C for his claims being both frivolous and vexatious he failed to send a duly completed ET3 forms and to date they do not exist. On 31st January 1997 the Claimant provided voluntary particulars of his claims upon receiving further information from the disclosure from QUB and AUT although without the benefit of R’s grounds of resisting the claim [C2: p. 33, 35-36, 37, 38-39,42-45, 47-49, 53].

22.	The R has been represented by Hanna & Co., which is well known for its bullying behaviour, particularly claimant in person. R does not provide any explanation as to why it was not reasonably practicable for them not to provide grounds for resisting the claims along with duly completed ET3 form [earlier known as UT3] within 14 days of receiving the originating application. The Notice of Appearance must include R’s full names and address of the parties and must set out sufficient particulars to show upon what grounds they propose to resist the claim, see White v University of Manchester [1976] IRLR 218 & [1976] ICR 419, EAT. 

23.	Fair Employment Tribunals (Constitution & Rules of Procedure) Regulations 1989 Schedule 1 states as follows:

“(1)	A Respondent shall, within 14 days of receiving the copy of the originating application enter an appearance to the proceedings by presenting to the Secretary a written Notice of Appearance…  

(2)	A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except-

(a)	to apply to under rule 13(1) fro an extension of the time appointed by this rule for entering an appearance, 
(b)	to make an application under rule 4(1)(a);
(c)	to make an application under rule 10(2) in respect of rule 10(1)(b);
(d)	to be called as a witness by another person;
(e)	to be sent a copy of a document or corrected entry in pursuance of rule 9(3), 9(4), 9(7) or 10(5);

(3)	A notice of appearance which is presented to the Secretary after the time appointed by this rule for entering appearance shall be deemed to include an application under rule 13(1) [by respondent who has presented the notice of appearance] for an extension of the time so appointed.  Without prejudice to the rule 3(4), if a tribunal grants the application (which it may do notwithstanding that the grounds of the applicant are stated) the Secretary shall forthwith send an extension of time so appointed.  Without prejudice to rule 13(4), if a tribunal grants the application (which it may do notwithstanding that the grounds of the applicant are stated) the Secretary shall forthwith send a copy of the notice of appearance to any other party.   A tribunal shall not refuse an extension of time under this rule unless it has sent notice to the person wishing to enter an appearance giving him an opportunity to show cause why the extension of time should be granted”. 

24.	R did not make any application for an extension of time. On 10 January 1996 C requested the Tribunal under Rule 4(5) to debar the R but to date the tribunal has not taken any decision because two of the Respondents, Dr Mercer & Mr Jay are/were the lay members of the Tribunals in Belfast [C2: p. 38-39].  On 21 March 1997 C renewed his request to debar the R, which Mrs Price a Vice President of the Tribunals erroneously claimed to have not received [later Mr Robert Tiny confirmed that in fact it was received at the Tribunal on the same day]. Unfortunately, Mrs Price scheduled a P-H-R without first dealing C’s application to debar R.  C renewed his above application again on 31st August 2001, which fell on deaf ears..

ON BEHALF OF THE CLAIMANT 				11.01.08					

Case No. 00218/96/FET&01789/96/SD
The Fair Employment Tribunal 
Sitting In Belfast

S. Deman
Claimant 

v

AUT, Dr. Duncan Mercer, Richard Jay and Paul Hudson
  
Respondents
______________________________________________________________

WRITEEN SUBMISSIONS 
ON BEHALF OF THE CLAIMANT
______________________________________________________________

Unless otherwise, all references to pages numbers or documents, are to those in the Bundle.
C1 & C2:  CAIMANT'S BUNDLES  & R1: RESPONDENT'S BUNDLE 

1.	The Claimant, Mr Suresh Deman, is a man of American Citizen of Indian origin, and a man of colour of Hindu religious persuasion. His claims are for direct religious, political and sex discrimination and victimisation over an extended period of time by the respondents.

2.	FACTUAL MATRIX OF COMPLAINTS AND ALLEGATIONS 

2.1	In relation to the dates, approximate times and factual description of the treatment received and the circumstances leading up to the treatment, C refers to above bundles, ET1s and & a set RR65 questionnaires those referred to herein. C alleges that he was discriminated against on religious, political and sex grounds and victimised when he was tre4atee les favourably in the way R provided services of the Union [C1: p.   1-8 & 47-49, 14-29].  

2.2	The factual details have been set out in C’s submission as to time issue, amendment and validity of R’s Notice of Appearance.  However, brief chronology is as follows:

(1)	On 1st September 1989 Mrs Carroll became an employee of QUB as a part-time clerical staff in the Department of Accounting & Finance.  She did not apply to become the AUT member until 9 March 1995 she faced a complaint of discrimination [C1: p. 8].  

(2)	On 6th February 1995, Prof. Moore recommended confirmation in post with enhancement of salary [C1: p. 303-305].

(3)	On 14 February 1994 C commenced his employment at QUB as a Lecturer in the Department of Accounting & Finance in the School of Finance and Information.  In contrast to Mrs Carroll C joined the AUT on the 31st October 1994 [R1: p. ?].

(4)	On 20 February 1992, C’s Camcorder was stolen from the QUB Senior Common Room [QUB SCR].  This led to the long-running dispute between C and the SCR in and out of courts. Dr Duncan Mercer, then the President of the QUB local AUT, was also the Secretary of the QUB SCR.  The dispute is fully set out in numerous documents.  In the bundles [e.g. p.    ].  The relevance of this issue to C’s ET1 is that as a result of this issue, Dr Mercer and other officers of the QUB local AUT became hostile towards C and that gave genuine reasons for querying the impartiality of any advice given to him by Hanna & Co, AUT’s Belfast solicitors.  In fact, Mr Daly, R’s solicitor advised C that he could not assist him against Dr Mercer since he was the President of local AUT when he met him about the SCR matter [C1: p. 320-321]. 

(5)	C complained about Mrs Carroll to the effect that she was not providing him the same administrative support, in terms of quantity and quality, which she was providing to the other teaching staff in his department.  On 24 February 1995, C wrote to Mrs Carroll [C1: p. 145].  C raised the matter with Mr Jay in his letter of 28 February 1995 [C1: p. 6]. He also stated that he had telephoned Mr Jay and had left a couple of messages.  C was clearly seeking the local AUT’s assistance.  Mr. Jay did not respond. 

(6)	C met with Mr Nesbitt to resolve the problems but was disappointed by his handling of the matter.  On 8 March 1995, C wrote a draft letter which he proposed to send to Prof. Michael Moor, Director of the School of Finance & Information [C1: p. 161-164 & 127-159] raising a formal complaint against Mrs. Carroll. He referred to his being the only non-white member of the faculty.   

(7)	On 9 March 1995, Mrs Carroll applied for membership of the QUB local AUT and she became a member on the AUT on the same day.  The speed of her admission, bearing in mind the fact that she had opted not to join the AUT from 1 September 1989 to 9 March 1995, and the probability that she had joined the AUT in order to seek its assistance in her complaint by C against C, is a further source of complaint by C against the local AUT.  

(8)	On 9 March 1995, Dr Max Goldstrom, the Honorary Secretary of the national AUT and Membership Secretary of the QUB local AUT, was asked by Mr Jay to assist C in his complaints because he, Mr Jay, had been approached by another member of staff with a complaint against C and Mr Jay anticipated that there would be a conflict of interests and he could not represent both C and the other member of staff, Mrs Carroll who were in dispute with each other.  It was agreed that Dr Goldstrom and Mr. John Lynch would assist C and Mr Jay would assist other member of staff.  Surprisingly, initially Mr Jay approached Dr Mercer to agree to represent C but he was not successful. Dr Mercer describe Mr Jay’s attempt to involve him as “setting him up”.      

(9)	On 13 March 1995 Mr Jay wrote to Mr Nesbitt on behalf of Mrs Carroll and also met him although C was still waiting to her from him [C1: p. 10-11].   
	
(10)	On 15 March 1995, C met with Dr Goldstrom and Mr Lynch.   Mr Lynch’s notes of the meeting are at C1: p. 14.   It is not in dispute that they are not full notes of the meeting.  They discussed C’s complaints. C showed them the Draft letter which he proposed to send to Prof. Moore [C1: p. 161-164].  It is not in dispute that Dr. Goldstrom strongly advised C that in view of the religious and political situation in Northern Ireland he should not raise the allegations of discrimination as such allegations were likely to in counter allegations being raised to the effect that C was guilty of sexual harassment.  He advised C not to send the letter to Prof. Moore. C informed Dr Goldstrom at that meeting that QUB had not confirmed him in post. 

(11)	On 16 March 1995, the day after the meeting, Dr Goldstrom informed C that Mrs. Carroll had become a member of the AUT and that Mr Jay and another undisclosed member would be assisting her.  On the same day he sent the memo to [C1: p. 161-164] to Prof. Moore.

(12)	On 16 March 1995, Dr Goldstrom wrote to C [C1: p. 15].  He said that the AUT had a policy on racism [i.e. it would not be tolerated], however, C had to produce evidence before making such serious charges.  He expressed the hope that the matter could be settled informally.  He also advised that, if necessary, they could apply on his behalf for Legal Aid from the AUT.

(13)	On 16 March 1995, C wrote to Mr David Triesman, the General Secretary of the National AUT [C1: p. 12-13].  He complaint of the handling of his complaint by the QUB local AUT.  After various discussions it was decided by Mr. Triesman, in early April 1995, that Mr Brian Everett, the AUT Regional Offcial based at Chase shire who had responsibility for Northern Ireland, would assist C in relation to his employment dispute wit QUB and that Mr Triesman would deal with C’s complaint against the local AUT [C1: p. 26]. 

(14)	On 20 March Mr Jay wrote to Paul Browne, EO officer along with a copy of C’s letter to Mrs Carroll on the basis of which he suggested a case of sexual harassment [C1: p. 17, 148]. He also took Mrs. Carroll to meet with Mr Chris McNairney, a Senior Personnel officer who was dealing with C’s confirmation in post matter [C1: p. 22, 306].  

(15)	On 25 March 1995, C’s house was harassed and invaded by a stranger who had to be removed by Police [C1: p 229].  

(16)	On 30 March 1995, Ms Wilshin of Mr McNairney’s office postponed the formation in pots [C1: p. 306].

(17)	On 19 April 1995 FEC sent a list of questionnaires to QUB in relation C’s potential compliant of religious discrimination [C1: p. 29-31].         

(18)	On 6 April 1995 Mr Jay accompanied Mrs Carroll to lodge a complaint of sexual harassment against C, which she signed on 24 April 1995 [C1: p. 26(i)-(ii), 231-234].

(19)	On 26 April 1995 Mr Paul Browne wrote to Dr. Mercer as per their conversation and beliefs need to send him documents of his involvement with C [C1: p. 34].  Dr Mercer immediately complied with his request.  On the same day Mr Browne wrote to C asking him to contact him so that he could put Mrs. Carroll’s allegation in greater details to him [C1: p. 35]. 

(20)	On 14 May 1995, C commenced proceedings in the Fair Employment Tribunal and the Industrial Tribunal alleging religious and sex discrimination and victimisation against him by QUB [C1: p. 312-318].

(21)	On 6 June 1995 onwards Dr Mercer sent detailed memo to Mr Browne long with his written derogatory and prejudicial comments about C [C1: p. 40-43(i), 46, 52-54-58, 61-63]. 

(22)	On 7 June 1995 C was suspended which included allegations from Dr Mercer and Mrs Carroll [C1: p. 44, 238-239]. 

(23)	On 14 June 1995 Hanna & Co QUB local AUT solicitors refused to assist C [C1: p. 246-247].

(24)	On 21 June 1995 C wrote to Dr Mercer/Mr George Dunn asking them to put his item re: Religious/sexual/Racist and political discrimination and harassment by some of the leaders of local AUT at QUB on the agenda of AUT AGM [C1: p. 55]. 

(25)	On 24 June 1995 C’s wife wrote to Dr. Mercer complaining against SCR Committee member and AUT members Pauline Banna and a Creche staff for calling C’s daughter half Hindu and assault in SCR Creche [C1: p. 177]. 

(26)	On 28 June 1995 Local AUT AGM was held. Dr Mercer failed to inform AGM that C was away in an International Conference held in Jerusalem. It was agreed the item will remain on the table for the next meeting but was not put [C1: p. 56, 235-237 & R1: p. PH3]. 

(27)	On 29 June 1995 C’s employment was terminated subject to right of appeal [C1: p. 248-249].  C made an application in the High Court for judicial review of the QUB decision claiming his employment relationship continues to subsist. Lord Justice Kerr gave permission for JR. 

(28)	On 11 September 1995 Court ordered Dr Mercer to pay a sum of £945.00 with cots of £38.00 towards lots Camcorder. On 24 October 1995, Dr Mercer wrote to C and his wife that based on the information from QUB that he was no longer a staff member their SCR membership lapsed [C1: p. 63, 65, 179-180].  The membership of SCR is not limited to QUB employees. 

(29)	On 20 October 1995, Dr Paul Hudson, Treasurer of QUB Local AUT changed the status of C’s membership on the same basis that C had left the university [C1: p. 64, 65, 171].

(30)	On 27 October 1995, C complained to Mr Triesman about the discriminatory treatment by the QUB local AUT [C1: p. 66-67].

(31)	On 19 January 1996 Dr Goldstrom accompanied Mr Chris McNairney, who orchestrated disciplinary proceedings against C [C: p. 74(ii)].

(32)	On 31st January 1996, C wrote to Joanna DeGroot entitled “My Case of Religious Discrimination & Victimisation against Officers of Queens’ University of Belfast”.  C also gave a copy of the same to Dr Paul Hudson fro coverage in the AUT Newsletter [C1: p. 76(a)].  

(33)	On 2nd February 1996, Mr Geary, Law Lecturer and AUT member assaulted C’s wife.  Dr. Mercer refused to investigate the complaint and on 8 February 1996 terminated C & his wife’s SCR membership [C1: p. 93, 93a, 169-171].  

(34)	On 17 February 1996, C wrote to Joanna DeGroot complaining against Dr Mercer and Mr Jay [C1: p. 78].  

(35)	In March 1996 issue of AUT Newsletter, Dr. Hudson expressed up-surge in disciplinary cases involving academic staff. Newsletter was sent back to him with C’s comments “Collaborators Unmasked”, “AUT at Queen’s cries over split milk”.  [C1: p 79]. 

(36)	On 1 March 1996, Legal Aid Standing Appeal Committee [LASAC] gave favourable report on C’s application for legal aid to pursue his claims of religious, political and sex discrimination and victimsation against QUB, Mrs Carroll and others.  The LAC decided to refer the matter back to the LAC for the following reasons:
“After very careful discussion and much debate, the committee ought to have regard to the unusual circumstances unanimously concluded that the legal aid committee ought to have regard to the unusual circumstances of Mr Deman’s situation in deciding whether assistance should be given either with the cost of pursuing further appeals or with amounts expended as a result of the decision not to assist him.
It was it’s view but where a member was in serious dispute with his local association, it was unfortunate if the member was then offered legal assistance only from a firm who regularly acted on behalf of the local association. The committee considered that there were understandable grounds why Mr Deman might have felt that there was indeed a conflict of interest. The committee noted that the absence of any alternative firm of solicitors in Northern Ireland regularly briefed by the Association caused a particular local difficulty.” 

(37)	On 6 March 1996, Mr Jay wrote to Dr Geoffrey, Secretary of LAC to a highly prejudicial letter making outrageous and unsubstantiated allegation against C to cause detriment to his legal aid application to be reconsidered by LAC.  On 30 March 1995, Dr Goldstrom also wrote to him in similar terms [C1: p.80-84, 84(a)-88, 97-99]. 

(38)	On 15 March 1996, C wrote to Joanna DeGroot, President of National AUT complaining against Dr Mercer, Richard Jay and Dr. Paul Hudson [C1: p. 95-96]. 

(39)	On 15 April LAC refused legal aid to pursue claims against the QUB and others [C1: p. 107-108].

(40)	On 29 April 1996 Mr George Dunn, Honorary secretary asked C to submit his request in writing to put his item on the agenda although it should have been on the table for next GM. On 14 May 19956 C sent request in writing [C1: p. 113].  

(41)	On 8 July 1996 Dr Hudson reported in AUT Newsletter one-sided story alleging C’s failure to attend AGM [C1: p. 118, 120].

(42)	On 21 & 28 May 1999 THES covered a decision of Central London Tribunal criticising QUB Local AUT [C1: p. 190-191]. In June 1999 issue of AUT Newsletter & also in THES Dr Hudson published inaccurate and inflammatory material without obtaining C ‘s comments to discredit him [C1: p. 199, 228].  

(43)	On 21 September 1999 Mr Triesman wrote to Dr Goldstrom, Dr Mercer and Mr Jay about an investigation undertaken by Thomson Solicitors in Belfast [C1: p. 256-264]. 

(44)	On 29 October 2000 C wrote to Dianna/Samira of National AUT and copied to Paul Hudson that he be nominated for TUT Black Worker’s Conference and Black Ethnic Minority Seminar and Meeting fro Black Ethnic Minority Members [C1: p. 202-206, 220, 223-224]. 

(45)	On 6 May 2004, C wrote to Mr Dunn to refund attached membership money [C1: p 172]. 

3	ISSUES IN THE CASE

On the basis of the pleadings issues have emerged as to the time limit, amended grounds and validity of R’s notice of appearance, which are being dealt separately.  However, the following issues emerge for determination on merit: - 

1.	Whether the action of Mr. Richard Jay in not investigating C’s complaints against Mrs. Carroll (a non-member) and/or representing him and instead helping her against him because of religion, political views and sex amounted to discrimination and /or victimisation?

2.	Whether the action of Dr. Goldstrom and Mr. John Lynch in discouraging C to pursue his complaint against Mrs Carroll because of religious and political situation in Northern Ireland and then also threatening him that she may falsely accuse him of sexual harassment and then helping Mrs. Carroll who was not a member of AUT amounts to discrimination on religious, political and sex grounds and/or victimisation?

3.	Whether admitting Mrs. Carroll as member of AUT and representing her and then allowing her to use a non-AUT solicitor of her own choice and then recommending reimbursement of her expenses by Mr. Richard Jay and obstructing C’s choice of his own solicitor amounted to discrimination on the ground of religion and sex and/or victimisation? 

4.	Whether Mr Richard Jay’s proactive continuation with Mrs. Carroll’s complaint against C as a complaint of sexual harassment and investigation by Mr. Paul Brown amounted to discrimination on the ground of religion and sex and victimisation particularly when she did not even believe let alone substantiate that there was a complaint of sexual harassment.  

5.	Whether the supply of common room correspondence by Mr. Duncan Mercer, President of AUT to the QUB officers in order to facilitate C’s dismissal from the university and then failure to inform C time and place of meeting of the AGM to discuss complaint religious, political and sex bias against the officers of the Local AUT amounts to discrimination by way of victimization?

6.	Whether the change of C’s membership status from full member of AUT to attached member by Dr. Paul Hudson though he was informed that C’s dismissal from service was under judicial review and whether his falsely describing termination of service of C as leaving the employment on his own amounts to victimization? 

7.	Whether one-sided coverage as to alleged failure of C to attend AGM, refusing to give coverage of C’s cases of discrimination and victimization and other inflammatory coverage by Dr. Paul Hudson in the newsletter amounts to victimization?

8.	Whether the action of Mr. Duncan Mercer president of local AUT and other officers in taking part in expulsion of C and his wife from (QUB and/or QUB Common room) membership amounts to discrimination and/or victimisation?

9.	Whether pressurizing the national AUT including writing prejudicial letters by Mr. Richard Jay and Dr. Goldstrom to the national AUT for not assisting C in his case against QUB, siding with the QUB in judicial review and opposing reimbursement of out of pocket legal expenses and solicitors’ of C’s own choice because of earlier grudge amounts to victimization? 

10.	Everyone knew that C has done protected acts, which are set out above.   Whether the knowledge of the protected acts has consciously or unconsciously caused detriment to C.

4.	PROTECTED ACTS & COMPARATOR

1.	C’s complaint against Dr Mercer, President of AUT-QUB and its knowledge to other officers of the AUT including Mr Jay [C’s letter to Mr. Jay, Common Room, Wardenship, etc].

2.	C’s complaint of religious/sex discrimination against Mrs. Carroll, QUB & others.

3.	C’s complaint against Local AUT officer to David Triesman, General Secretary of national AUT [16 March 1995 & Mr. Everett’s investigation].

4.	FEC questionnaires of 19 April 1995 and Mr. Jay’s assistance to QUB in drafting replies.

C would rely upon Mrs Carroll as a comparator and/or any hypothetical comparator.

5.	DR. GOLDSTORM WITNESS SATEMENT

R invited the tribunal accept Dr. Goldstrom’s witness statement in evidence.  Although in spite of C’s objections the tribunal accepted his witness statement exercise its discretion Chairman invited parties to make further submission as what weight, if any, the tribunal could give it. C submits that the tribunal should give any weight to Dr. Goldstrom’s witness statement for the following reason:   

(i)	R produced a GP’s note as to Dr. Goldstrom’s medical condition, which could hardly be construed as an independent medical opinion by an independent observer given the fact; GP works at the QUB-Health,
 
(ii)	GP’s note simply says Dr. Goldstrom cannot attend the tribunal. It does not say he is not physically or mentally fit to given evidence for good and when he will be fit to do so,  

(iii)	R does not provide medical specialist’s report on Dr Goldstrom’s heart condition and loss of memory for the last 18 months. The quality of medical evidence is deficient therein:-

(a)	there no details and history of Dr Goldstrom’s medical conditions have existed, 
(b)	when he was likely to be fit to give evidence,   
(c)	whether 18 months treatment was for his memory loss or for heart condition,

(iv)	Clearly R’s medical report does not satisfy the test set out by superior courts in Teinzen v London Borough of Wandsworth [2002] IRLR 721 and Andrea v Lord Chancellor’s Department [2002] IRLR 728 as R unable to attend the tribunal is not the same thing as unable to given evidence, 

(v)	From the signature page it is clear Dr Goldstrom does not even remember the year let alone remember the contents of his witness statement. 

Dr Goldstrom is key witness in the case and without a cross-examination his evidence carries no meaning. If the GP to be believed that Dr Goldstrom has been undergoing memory therapy for the last 18 months clearly he has been incapacitated and could not confirm the content of his witness statement let alone standing under cross-examination. We therefore request the tribunal that it must completely discard Dr Goldstorm’s witness statement.

6.	EVIDENCE ON THE ISSUES 

ISSUE NO. 1

1.	Mr. Richard Jay was the secretary of the local AUT in Belfast. As secretary it was his primary duty to provide all support to AUT members. If an AUT member makes a complaint against a non-AUT member, he was obliged to take up the case and deal with it according to its merits. When the complainant began to have problems with Mrs. Carroll and when he came to know that Mr. Nesbitt was taking her side he tried to contact Mr. Richard Jay on telephone on 24 February 1995 [see C2: p.97, 139 @1(d)] for R’s response to F&BP leave it to within C’s knowledge]. When Mr Jay could not be contacted C wrote to him on 28 February 1995 [see, C1: p. 6]. In his written statement Mr. Richard Jay admits that he received C’s call on or about 9 March 1995. However, he has not denied the letter. He also says that Mrs. Carroll contacted him at the beginning of March 1995. Though, he did not make any notes. Thus, the letter of 28 February 1995 proves that the C was first to approach him. Still, admittedly Mr. Richard Jay did not take any steps to investigate the C’s complaint against Mrs. Carroll. When the C contacted him first he could not have taken up Mrs. Carroll’s case against C. Further, the question of who contacted him first becomes irrelevant when the case involves an AUT member on the one side and a non-AUT member on the other. In cross-examination he has admitted that when Mrs. Carroll first met him she was not a member of the AUT. Mr Jay says that he told her that he would arrange to have a form sent to her.  It leaves no doubt that at that time which according to Mr. Jay himself is not before March, 1995 he knew that she was not a member. For argument sake even if the case of the AUT member did not convince him still as the AUT Secretary he was obliged not to take any case against him. However, at that point of time it was not the question of representing C but was only to investigate it. Why it was not done? Was he not compromising his position as Secretary of the AUT? Was he not breaking the faith of AUT member? Moreover he not only took up the case of Mrs. Carroll against C but also pursued it as a case of sexual harassment, which was distorted to be so and was ultimately dismissed. By such a perverted bias the inference of discrimination can easily be drawn. R has not disputed Mrs. Carroll was a woman of Christian persuasion (whether a Catholic or Protestant is irrelevant). Mr. Richard Jay is also a Protestant Christian while C was a male and was a Hindu or non-Christian. These were the reasons for discriminating against C. Mr. Richard Jay has not given any explanation and the pretext that Mrs. Carroll contacted him first not only false but nonsense. It is well settled that the question of discrimination can only be ascertained by inference drawn from the facts and lack of any plausible explanation for different treatments. 

2.	In the letter of 28 February 1995 C had clearly mentioned the opinion of Mr. Nesbitt that the case of C, if taken, will involve religious difficulties and the gender of Mrs. Carroll. He neither replied to this letter nor refuted that opinion. It clearly meant that he also shared the same views. This further fortifies the inference of discrimination. 

3.	Further, during cross-examination when he speaks about Zionism and then his hostility towards Mr. McCue who picketed against the Queens University, the reasons for discrimination enters political arena. C though does not support Zionism himself but differentiates between Zionist and Jewish (a religious belief). He visited Israel for academic purposes, while the AUT boycotted Israel Universities. Similarly, in the presence of Mr. McCue in the picketing against the Queens University of Belfast along with C and the fact that in cross-examination Mr. Richard Jay says that picketing was against the AUT also exposes his political bias. Though, he had to admit afterwards that before the London Tribunal he had said under oath that the picketing was against the QUB. Thus, on the basis of documentary and oral evidence on record it is clearly established that the action of Mr. Richard Jay in not investigating C’s complaint against Mrs. Carroll and instead helping her against him amounted to discrimination on the grounds of religion, sex and political views. 

ISSUE NO.2

1.	C approached the AUT on 24 February 1995 about the problem he was having with Mrs. Carroll and the attitude of Mr. Nesbitt.  Dr. Max Goldstrom who was Treasurer of the National AUT and membership secretary of Local AUT at QUB should have tried to resolve the matter informally but he did not do it. C made a detailed complaint on 8 March 1995 along with 12 Exhibits in support of the complaint (C1: p. 161-164). After this Dr. Goldstorm contacted him and decided to discuss C’s complaint along with Mr. John Lynch at a meeting held on 15 March 1995.  Mr. John Lynch wrote the notes of the meeting (C1: p. 14). The notes are self- explanatory.  Instead of supporting C they both tried to discourage him contrary to FEC Code of Practice for Trade Unions because of so-called religious and political situation in Northern Ireland [C1: p. 301-302 @9.2]. C’s complaint was not precisely about discrimination on the basis of race but all the facts were narrated about her discriminatory treatment compared with the Christian colleagues in the department.  It was they who instead of investigating the factual aspect of the complaint made it out to be a racial complaint because there was no Race Relations Act in Northern Ireland and threatened that if C pursued his complaint the case may escalate and a counter claim (they meant accusation of sexual harassment) would be forthcoming from Mrs. Carroll.  However, Dr. Goldstrom’s letter of 16 March 1995 (C1: p. 15) avoids using the word “Racial“. It only mentioned different treatment and asked for evidence. Strangely, though in this letter dated 16 March 1995 it is not stated that Mrs. Carroll had become a member of the AUT but on telephone he informed C that as she had become a member of AUT Mr. Richard Jay and another AUT would be representing her [name of the second person has not been disclosed]. Thus, Dr. Goldstrom and Mr. Lynch deliberately sidelined C’s complaint which was about her non-performance of duties, not assisting C and her ill-tempered behaviour but were keen to discourage him to pursue the matter and threatened him of a counter allegation on the one hand but working to encourage Mrs. Carroll and accepting her membership of the AUT on the other hand and were happy with the fact that she was being represented by the AUT. On 16 March 1995 [received on 22 March 1995] C immediately had brought these developments to the notice of Mr. David Triesman, General Secretary National AUT (C1: p. 12). They tried to highlight racial issue knowing that the Race Relation Act did not apply in Northern Ireland but suppressed the fact of the behaviour of Mrs. Carroll and though she herself did not make any complaint of sexual harassment but they threatened C of such an allegation and made all types of pretext about political and religious situation in Northern Ireland. Thus, clearly the actions of Dr. Goldstrom and Mr. Lynch amounted to discrimination on religious, political and sex grounds. 

ISSUE NO. 3

1.	Mr Jay claimed that Mrs. Carroll contacted him first but he did not recall exact date and time. In the first meeting Mrs Carroll told him that she just wanted an apology from C, which was not forthcoming.  She was upset with the process. She gave no details of her complaints. 

2.	In her second meeting Mrs Carroll talked to Mr. Jay about various complaints against C although she was not yet member of the AUT.  She did not provide any proof and/or documents in support of her allegations. He went along with her version of complaints without carrying out any investigation he said she looked fairly plausible. Being an experienced QUB local AUT officer Mr Jay should have taken notes of his conversation with Mrs Carroll but he did not do so. In contrast Dr. Goldstrom asked for a proof before making a complaint of discrimination. Therefore there was contract legal or otherwise to commit himself to her case hoping she would became a member.   

3.	Mrs Jay was unsure about whether membership form was sent or given to her.  He did not know what Mrs Carroll did after she had left his office when came to see him second time. Mrs Carroll did not have it when she spoke to him on or about 9th March 1995 for the second time.  She straight went to AUT secretariat office. She did not come back to tell him whether she actually handed in her membership form to become a member.  Mr Jay accepted that categories of memberships existed but he did not make checks on her category of membership.  

4.	Dr Hudson says there were about 6-700 members of the QUB local AUT.  It is difficult to remember everyone’s face but certainly would ask if they are member and check membership status at some stage.  Mr Jay did not do this. He said if somebody approached him to discuss a problem I would hear it but would not do anything until he/she became an AUT member.  In case of conflicts other qualified officers could advise.  

5.	Dr Hudson outlined the procedure for approving the membership of the AUT.  The Secretariat Centre would send the completed form to him for checking direct debit to make sue that it was checking account and not the saving, as direct debit cannot be set-up against saving account.  However, he could not recall when he actually got Mrs Carroll’s membership form but agreed like Mr Jay that it may take a couple of days via internal mail.  Mr Jay accepted that Mrs Carroll did not have the from on or about 9 March 1995 and when she came to see him about C’s 10 March 1995 memo she went straight to the Secretariat office to complete it although he had sent her membership from in early March 1995.         

6.	Mr Jay allowed Mrs Carroll to get advice from a solicitor of her own choice and then recommended reimbursement to her out of pocket expenses. He did so in spite of the she had benefit of QUB solicitor/personnel’s advice who were preparing a response to FEC questionnaires and the fact Hanna & Co., QUB local AUT solicitors in Belfast were available fee of charge to AUT members for half an hour. 

7.	In contrast on 6 March 1996, Mr Jay wrote to Dr Geoffrey a prejudicial letter to obstruct C’s application for reimbursement of his out of pocket expenses from seeking independent legal advice. In his attachments to his letter of 6 March 1995 he not exaggerated but were also fabrication of Mrs Carroll’s allegations of sexual harassment although she herself never made such allegations when she spoke to Mr Paul Browne and signed the complaint on 24 April 1995.  

8.	The document at Page (i) may be referred to show as to the status of Mrs. Carroll. This document relates to her job description, which is dated 22 February 1995. It is important first for the purpose of ascertaining that her nature of duties did not qualify her for membership of AUT and then secondly for showing that her duties were precisely those, which she was not doing deliberately for the claimant and for which the claimant complaint against her. She was actually a staff Assistant, she was supposed to provide research support to teaching staff of which the claimant was one of the member. The claimant was member of the AUT since October 1994. It was in the middle of February that the claimant was compelled to be involved any dispute with Mrs. Carroll. She failed to photocopy papers for which request made by the complainant. She was willingly doing this work for other faculty members, who were either Roman Catholics or Protestants of Irish Origin. She scheduled C’s seminars contrary to the instruction on 14 February 1995. When C contacted her she became aggressive and abusive and clearly told him that she did not have to assist him in his research work. She also made veiled threat concerning the religious and political situation in another Ireland.

9.	Therefore, on 15 February 1995 C made a complaint against the Mrs. Carroll to the Head of the Department Mr. Nesbitt. When C became aware that Mr. Nesbitt was siding with Mrs. Carroll when he asked C to apologies to Mrs. Carroll and therefore, C approached the AUT on 24 February 1995. He also wrote a letter to Mr. Richard Jay on 28 February 1995. All these facts have been narrated by the complainant in his written statement and have not been refuted by the respondent. Mrs. Carroll was not and could not be a member of AUT. However, it was because the AUT officials wanted to go out of the way to help her against C that Mr. Richard Jay admitted in cross examination that it was he who promised to send a membership form to Mrs. Carroll. As according to nature of her duties she was not qualified for a membership, her job description was deliberately got changed. The document at C1: 8 is the membership form, which Mr. Richard Jay admitted to sent to her she filled this form on 9 March 1995, i.e., during the period when C filed a complaint was lying with the AUT including Mr. Richard Jay and he instead of taking steps to investigate the matter, contacted Mrs. Carroll, helped her in becoming member so that she may get support from AUT and then he himself went on the represent Mrs. Carroll against C. 

10.	The inference is clear that though Mrs. Carroll was employed by the QUB from September 1989 yet she may made no effort to become a member of AUT for all these years and then she was made to become a member of AUT only for the purpose of giving her AUT assistance against C. At least until 9 March 1995 she was not a member and therefore, Mr. Richard Jay as Secretary of Local AUT on 28 February 1995 had no option but to investigate C’s complaints but he did not do it though he was duty bound to do it and waited for Mrs. Carroll for becoming a member so that she can be helped by him against the complainant.

11.	The document at C1: 5, which are the notes of meeting between E.O. unit and Mrs. Carroll held on 27 February 1995 makes a strange pleading, it has been recorded that she said the she had no job description, which clearly means that she was derailing live and was preparing ground for change in her job description. The memorandum of Division of Accounting and Finance of 22 February 1995 at C1: p. 2(i)) was already there, which details her job description, therefore on 27 February 1995 she says that she had no job description it is nothing but a blatant lie. Thus her job description was also changed for the same purpose. 

12.	Not only this Mr. Richard Jay recommended that her expenses for independent legal advice be reimbursed, when the complainant requested for the same benefit it was vehemently opposed. All these facts clearly established that the process of admitting Mrs. Carroll as member of the AUT when C’s complaint was already pending with the AUT and for this purpose even her job description was changed and then Mr. Richard Jay went own to represent her that the complainant was discriminated against vis-a-vis Mrs. Carroll on the ground of religion and sex.

ISSUE NO. 4

1.	Mr Jay actively supported and helped Mrs Carroll even before she became a AUT member. He hurriedly took Mrs Carroll’s case without investigating the merit of her allegations of sexual harassment. He not only wrote to Mr Nesbitt on 13 March 1995 but also personally met him. On 20 March he wrote to Paul Browne and also met Mr McNairney, Senior Personnel officer to stall C‘s interview for confirmation in post, which was eventually postponed on 30 March 1995 even before Mrs Carroll made a formal complaint. He made no attempts to resolve the dispute informally. 

2.	On 6 March 1996, Mr Jay wrote to Dr Geoffrey Talbott, Secretary to LAC.  A three page long attachment to his letter of 6 March 1995 was designed to deny C assistance against the QUB and Mrs Carroll before or at committee stage.  He puts the unsubstantiated and prejudicial material in paragraphs 15, 18, 19, 20 and 25 of his witness statement. For example, there is no reference to C’s memo of 8 March 1995 [he described a famous memo) in her complaint, which allegedly caused her to go off on two weeks sick leave and her harassment of other female clerical staff.  There is no reference to these allegations in Mrs Carroll’s written complaint of 24 April 1995 to EO officer in which Mr Jay accompanied her.  How could he not remember what she said to Mr Browne on 6 April 1995 as opposed to what she allegedly had told him in his second meeting with her?  

3.	On the other hand he was slow in respond to C’s telephone calls and written requests for assistance in relation his less favourable treatment by Mrs Carroll and his confirmation in post. He accepted that he subconscious affected by his relationship with Dr Mercer. His hostility towards C was so obvious that he even chose to set Dr Mercer up to represent C knowing fully well there was ongoing conflict between Dr Mercer and C. Dr Goldstorm first met with C on 13 March 1995 but made no progress either to resolve the dispute informally and/or wrote to any of the officers of the QUB and/or to Mr Jay.  Dr Mercer accepted he had some discussion with Jay regarding C’s representation.  Althoguh mR Jay was sleint in his witnes statement about it but he accepted that he does not dispute Dr. Mercer’s evidence.    

ISSUE No. 5

1.	Dr. Mercers was the President of QUB local AUT at the relevant time.  His hostility personal animosity or antagonism became obvious when C received copies of his poison pen memos to Mr Browne, McNairney and Mr Camlin some time in mid March 1996 from the QUB solicitors as part of discovery.  He stated that he had no recall of coversation with Mr. Chirs McNairney and Mr Camlin (Seniro Personnel Officer and Director of Personnle) and/or sending them his correspondence.  Then he accpted that he had sent his corresponedence to both when C showed him his poison pen memos re: complaint against C who was due for confirmation in post.

2.	Dr Mercer accpeted that he had conversationz with Mr Paul Browne about how to deal with abuse of the Senior Common Room staff by C. He stated that purpose of  Mr Browne letter of 24 April 1995 was different but he did not ask him wht he was asking him to send documents related to his involovment with Deman. Tribunal must reject this explanation as Dr Mercer was ot only presidnet fo QUB local AUT at that tiem but was/is also lay memebr of the tribunal with considerbale experience. Thesee emeos weree designed to facilitate C’s dismissal. 

3.	Dr Mrecr was aware of C’s absence fromm 25-29 June 1995 and yet he failed to inform the AGM [C1: p. 61].  Dr Huson said he would have informed the AGM had he bene aware that C was out of country. He stated that he had made ararmegement to invite Mr. Burgess, Penny Holloway and Alan Carr to Chair the AGM to discuss C’s item on the agenda.  When Dr Mrecer was asked how this arragement was made he stated, “This was on the agenda”.  Howver, when C showed him a copy of the ageda he accepted there was no reference to any special arrangements on it.  On this Mr Riley [prompted] gave evidence stating that it was there in the minutes, “Guest speaker Burgess”, which is not the same thing  that he was specficaly invited to Chair the C’s item. Further there is no erneec to this mattre and refernce of Panny Hollowway and Alan Carr in any of the QUB local AUT Execuitve Committes’ meetings. In fact, Dr Hudson accpted that there was no reference to contingencies or special\arrangements in the Agenda or in the minutes of the EC meetings. He did not recall who did the planning of special arrangements.

4.	Contarry to agreement in the Exectuive meeting following 28 June 1995 AGM that the item will reamain on the table Dr Merecer he ddi not do so. Dr Hudson said AGM was held between June and December 1995 but he did not know why C’s item was not put again in autumn meeting.  Main meetings of the AGM are scheduled to meet deadlines. 

5.	 When C aksed the status of his item of complaint to be put on the agenda Dr Mercer thorugh Mr Dunn asked C to write formally to put agian his item on the agenda in the June 1996 AGM alomost one year latter.  Once again he failed to ensure that C was informed the date and time of the AGM. Dr Hudson was present at the AGM and accepted that Dr Mercer did not say anything why C was not persent. Mr Titterington gave evidenec that he was present at the AGM and sat besdie Mr Nesbitt he saw no voting on the item therfore it could not have been said that the motion failed.  However he accepted that it was possible that C had not received the notifications of the meetings.

ISSUE NO. 6

1.	On 20 Ocotber 1995 Dr. Hudson changed the status of C’s AUT membership wrongly beleiving that C was leaviing the QUB although he was granted permssion to judiclaly review the QUB’s decision to terminate his employment.  Dr Hudson accepted that he was aware of C’s JR application against QUB decision.. The implication of permission to judicially reviwe the decision was that C’s employment relationship with QUB continued to subsist. 

2.	Dr Hudson releid upon alleged list of the QUB informing AUT about the members of staff who left the QUB and also who joined the QUB.  He was unbale to provide such lists conteporanoeusly or recent one confirming QUB practice.  

3.	When Dr Hudson was asked in cross exmination whether he had sent similar letter chaning Mrs Carroll’s memebsrhip whe she left QUB in 1996. His telling reply was, “he cannot recall about the status of her membership”.  He did not recall whether he wrote to her although he accepted he was Honorary Treasurer of the AUT until 1997.  Tribunal must reject his selective memory and explanation. 

ISSUE NO. 7

1.	Dr Hudson complained to THES about the publication of two stories following the decision of the Central London Employment Tribunal criticising the QUB local AUT on C’s claims of discrimination. His complaint in his letter to the editor with inaccurate facts was that the QUB local AUT was not given an opportunity to comment and that the Tribunals in London have no jurisdiction in Northern Ireland. However, when as an editor of the AUT Newsletter he published inaccurate and inflammatory stories about C he did not invite C to comment. Surprisingly, now Dr Hudson and his colleagues inviting the tribunal to rely upon the same tribunal in London. 

2.	When he was referred to paragraphs 8(ii) & (iii) of Mr Titterington’s witness statement.  He claimed he had no recollection.  In his reporting in the AUT Newsletter Dr Hudson wrote, “As nobody spoke in support the matter fell”, which was contrary to Mr Titterington’s evidence.  Dr Hudson failed to invite C to comment because his Newsletter coverage about C was designed to discredit him.  

3.	On the other hand Dr Hudson failed to give coverage in the AUT Newsletter about C’s judicial review and/or claims religious and political and sex discrimination against the QUB and other fellow Christian members. In re-examination Mr O’Reilly tried suggested that item 1-9 of C’s ET1 were not relevant to Mrs Carroll.  However, he failed to point out that entire first paragraph is about Mrs. Carroll’s acts of religious discrimination in failing to provide C support and victimisation occurred as a result of C’s complaint against Mrs Carroll.  Both he QUB and the local AUT officers sided with her because of C’s religious persuasion and sex.

4.	Dr Hudson also failed to nominate C for the TUC Black Worker’s Conference and Black Ethnic Minority Seminar and Meeting for Black Ethnic Minority Members from QUB local AUT on the pretext that C was not an employee of the QUB.  This nomination was open to all AUT members and there was no such requirement under the AUT rules.  If Dr Hudson is right about it he would have written to either Ms Samira/Diana of the National AUT or to C explaining his position.   

ISSUE NO. 8

1.	Dr Mercer accepetd that C and his wife’s comaplints and the names of Mrs White, Pauline Banna, Mr Geary and Mr JB Bridge were identified.  He gave evidence that no one spoke to him about C’s complaints, then accepted Joanna DeGroot, and Brian Everett did speak to him. He also denied Thomson Solicitors never contacted him dspite the eviden to the contrary. The Tribunal must reject Mr Jay, Goldstrom  and Dr Mercer’s evidence that they were not contcated by Mr Triesman, President of Nationla AUT about an investigation of discrimination against  them for which he appointed Thomsons Solicitors in Belfast. 

2.	On 24 Ocotber 1995 Dr Mercer terminated C and his wife’s SCR membership on the basis that C had left the QUB and latre in evidenec on the basis of alleged QUB list of staff. He claimed that he has boxes full of SCR docuemtns and yet  has not produced one to support his stories.  

ISSUE NO. 9

1.	Dr Goldstorm and Mr. Jay wrote to Dr Geoffrey Talbot, Secretary of LAC, which was reconsidering C’s application for legal aid against QUB, Mrs. Carroll and others.  These letters and attachments were designed to cause C detriment so that eh could not pursue his claims of discrimination.

ISSUE NO. 10

3.	C has been discriminated in relation 1-9 for the reasons thta he carried out the proetced acts as oulined.  It is matter of record Mr Jay, Goldstorm, Dr. Hudson, Dr. Mrecer all were  involved in the religous discmrnation cliams and counter clains wihtin the C’s department of School of Finance [titteringtons’e videnec].  They did not want to disturb their politically correct equation by assisting C.

6.	INFERENCE OF DISCRIMINATION 

The Claimant would invite the Tribunal to draw an inference from the Respondent’s conduct as follows: 

(2)	All the Respondents who are subject of these proceedings are protestant Christian white. In addition the religious composition of the entire AUT-QUB is also Christian. 

(3)	The Rules of the Union were not applied to Christian and non-Christian members uniformly and objectively.

(4)	The AUT-QUB did not monitor statistic on the basis of religious persuasion, political opinions and sex. In cross-examination Mr Jay showed a great degree of naiveté about the FEC Code Practice for Trade Unions.  

(5)	No notes despite being repeatedly told to do so (Mr Jay’s evidence – “ I wish we could have taken notes). 

(6)	The respondent claims to have adopted an Equal Opportunity Policy and yet failed to monitor members’ religious persuasion, political opinion and sex.

(7)	R’s failure to reply to RR65 questionnaires and erroneous claim that they could not read C’s ET1 

4.0	THE RELEVANT LAW

	Before considering the detailed findings that the Tribunal should make relevant to the issues, it is convenient to set out in short, summary from the relevant principles of law.  It is hoped that they should not be in dispute:

4(1)	The section implements in relation to religious and political discrimination burden of proof provisions similar, if not identical to, the provisions of section s.63A of the Sex Discrimination Act 1975. Accordingly if (as is submitted here) C shows facts from or on which an inference of religious and political discrimination could be drawn, the Tribunal will find such discrimination unless R’s produce entirely non-discriminatory explanations, which the Tribunal accepts. The relevant authorities include Barton [2003] IRLR 332, Woolf [2004] IRLR 534, Chamberlain [2004] IRLR 592 and Heard [2004] IRLR 763;

4(2)	the point made above in relation to the shifting of the burden of proof must be read as a gloss on the classic expositions in King v Great Britain-China Centre [1992] ICR 516 esp. at 528-9, Qureshi v University of Manchester [2001] ICR 863 esp at 873-876, Anya v University of Oxford [2001’ ICR 847 esp at 852-855.  To these may be added the judgement of the Court of Appeal (paras. 27-32);

4(3)	In cases of victimization as well as “direct” or other forms of discrimination it is not necessary for the complainant to show that there was any “conscious” motive. In this sense victimisation under s. 2(1) of the 1976 act is to be judged by precisely the same test as any other form of discrimination – see Nagarajan v London Regional Transport [1999] IRLR 572 and paras. 33 and 34 of the decision of the Court of Appeal in Deman v AUT and others – see IRLR [2003].  In the circumstances of the present case there can be no question of R’s seeking to avail themselves the decision in the Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830. None of R’s witnesses has suggested or sought to suggest that they acted at any time to take steps to preserve their position in any pending discrimination proceedings;

4(4)	subject to the observations made above concerning s.54A of the 1976 Act, the relevant sections are sections 1(1)(a), 2 and 11 of the 1976 Act.  It is not thought helpful or necessary to set them out in detail since they will be well known to the Tribunal.

5.	The Claimant wishes to make brief comments concerning the meaning and effect of the decision of the Court of Appeal in Igen Ltd v Wong (2005) EWCA Civ 142 given on 18th February 2005.

6.	The relevant points are as follows:

(1)	At the Annex to the decision in Igen Ltd v Wong the Court of Appeal set out what must now be regarded as the authoritative version of the guidance offered in the Barton case. That guidance is now extended to 13 sub-paragraphs rather than the previous 12;

(2)	it is plain that precisely the same guidance is to be applied whatever species of discrimination is alleged – see paragraph 15 of the Wong case;

(3)	although it is not obligatory for the ET to set out the Barton guidance or to go through it paragraph by paragraph (see paragraph 16), it is submitted that:

(a) 	that guidance sets out the relevant approach;

(b)	good practice would suggest that there should be sufficient reference to the revised Barton guidance to demonstrate to the parties (and to any appeal Tribunal) that the ET has had the relevant guidance in mind in reaching its decision;

(4)	it is now clear that the statutory amendments were intended to change the law and went beyond mere codification – see paragraph 18 and the reference to Nelson v  Carillion Services Ltd [2003] ICR 1256;

(5)	whilst the burden of proof remains on the Claimant to prove facts from which the ET “could” conclude that there has been discrimination (see e.g. paragraphs 17 and 25 to 28 leading to the expression at paragraphs 30 and 31), in considering that question of ET must assume that no adequate explanation has been or may be given – see paragraph 23 and the addition of paragraph (6) to the revised Barton guidance;

(6)	once the burden has passed to the Respondent(s), that burden requires that the ET is satisfied on the balance of probabilities that:

“the treatment was in so sense whatsoever on the grounds of [sex, race or as the case may be], since “no discrimination whatsoever” is compatible with the Burden of Proof Directive”,

see paragraph (11) of the revised Barton guidance and paragraphs 35 to 37 of the decision. The suggested gloss in Emokpae is, in fact, incorrect;

7.	while there is no absolute requirement for the ET to identify a hypothetical comparator or to specify the characteristics of such a comparator, to fail to do may  lead the ET into error. This aspect may vary in importance from case to case – se paragraph 34. 

7.	All in all it is that the Wong decision is helpful to Mr Deman in the circumstances of the present case, perhaps particularly so in the addition of sub-paragraph (6) of the revised Barton guidance and in the clarification that the suggested gloss in Emokpae does not represent the law.

8.	In essence the Claimant does suggest that the Respondents cannot hope to show that the treatment they meted out on the Claimant was in no sense whatsoever on the ground of his religious persuasion, political opinion and/or sex particularly given the religious composition of the R’s Union & its officers at the QUB and, in particular, those who made or were party to or sought to influence the decisions adverse to him culminating into various decisions outlined in C’s claims, especially given the evident hostility of a number of those persons which was expressed so clearly in oral evidence of R’s witnesses.

It is highly disappointing that the things are done in the same way because they have always been done that way this is not a satisfactory explanation and confirms C ‘s worse fears about the absence of proper and defined procedure. If R does not have any procedure let alone fair procedures it shows that R is far from applying a fair procedure when considered C for any of the Union services. There is a potential and perhaps significant possibility of C being discriminated and victimised in the absence of any knowledge and compliance with the FEC Code of Practice.  

Equally the mere assertion by a respondent (what is known as Duff syndrome or more bluntly put as bastard defence in jurisprudence-A Barrister’s view from Matrix Chamber’s) that he would treat others in the same manifestly unreasonable way but with no evidence that he has in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.

FEC’S CODE OF PRACTICE FOR TRADE UNIONS

Both in their failure to Replies to FE28/SD Questionnaire and in their oral evidence the Respondents showed they had failed to follow and/or apply the FEC’s Code of Practice for TUs (Qureshi v London Borough of Newham CA ; Ali v Pindersfield Hospital NHS Trust; Richards v Brighton B.C (20/5/92 case no. 14213/91 . Section 47(10) RRA 1976.

The Tribunal is now referred to Code of Practice in section 7(5) of the Fair Employment (NI) Act 1989, which states that a failure on the part of any person to observe any provision of Code shall be admissible in evidence and if the provision appears to be relevant to any question arising in the proceedings, the tribunal shall take it into account in determining that question. In this respect the Tribunal is referred to the decision of Morrison J (President, as he was then) in Ali v Pindersfields Hospital NHS Trust (EAT/184/87 –22.5.97)).

Those carrying out their duties officers of the AUT-QUB were either wholly ignorant of or reckless as to complying with the most basic requirements of FEC’ s Code of Practice for TUs.

The treatment the Applicant received was a classic example of "institutional discrimination”, which is defined as: 
… the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. (McMacpherson Report)
Hence, the picture that emerges from the above is that the claim has not been short-listed and/or appointed despite he was superior or as good as all appointed candidates.  It appears top jobs are reserved for only whites including membership on the selection panel who would decide that no one from non-white ethnic minorities particularly from Indian sub-continent could get appointed without shining the shoes of their white masters. The above picture of the departments is supported by Steve Fenton and Tariq Modood report funded by the CRE, NATFHE, AUT and Higher Education Funding Council of England & Wales (HEFCE) that there exist institutionalised discrimination in the Higher Education evening the School which claims to be at the forefront of RAE organised by HEFCE. Although the terminology of  Institutionalised Racism may not have been liked by the Court of Appeal in Hendricks it conveyed it messages under a different   concept of “an act extended over a period of time”.  In Hendricks v Commissioners of Police of Metropolis [2002] EWCA Civ. 1686 in which Lord Justice Mummery puts as follows:  
“…evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period." I regard this as a legally more precise way of characterising her case than the use of expressions such as "institutionalised racism," "a prevailing way of life," a "generalised policy of discrimination", or "climate" or "culture" of unlawful discrimination”. 

Claimant believes the respondents have engaged in continuing acts of discrimination against me on the grounds of my perceived racial origin. Alternatively, A was victimised and treated in the manner aforesaid by reason of the fact that A made repeated complaints of racial discrimination and carried out protected acts.  A is aware that none of the selected/short-listed candidates for the posts have made any complaints of race discrimination and victimisation. A believes a discriminatory regime was in place at the University of Bradford because of my protest against the respondent’s discriminatory policy contrary to the Race Relation Act, 1976.  A has been denied livelihood contrary to the Human Rights Act 2000. The Tribunal should find that none of R’s explanation are satisfactory and draw an inference from the above.  For the above reasons the Tribunal should find in favour of Applicant on all claims.

ON BEHALF OF CLAIMNT  	CEM  

IN THE FAIR EMPLOYMENT TRIBUNAL
CASE REFS 218/96 FET 
1789/96 SD
BETWEEN
SURESH DEMAN
Claimant
-and-
1. ASSOCIATION OF UNIVERSITY TEACHERS & OFFICERS AT QUEEN’S
UNIVERSITY BELFAST
2. DUNCAN MERCER
3. RICHARD JAY
4. MAX GOLDSTROM
5. PAUL HUDSON
Respondents
_____________________________
SUBMISSIONS
on behalf of the Respondents
_____________________________

INTRODUCTION

The Claimant, Suresh Deman, commenced employment at Queen’s University Belfast (QUB) in 1994.  Together with his wife and child he initially stayed at the Queen’s Common Room until he found alternative suitable accommodation.  While he was staying at the Common Room a camcorder belonging to the Claimant and his wife was stolen.  The Claimant was and had been for some time a member of the Association of University Teachers (AUT) and each of the individual Respondents was an Officer of the Local Branch of the AUT, based in Belfast. The second Respondent, Duncan Mercer, was at all relevant times, both the President of the local AUT and the Secretary of the Queen’s Common Room.

After some correspondence and discussions between the Claimant and Dr Mercer, the Claimant sought assistance from Mr Richard Jay in his efforts to obtain compensation for the loss of the camcorder.  Mr Jay suggested that the Claimant should seek legal advice from the AUT’s then solicitors in Belfast, Francis Hanna & Co.

At or about the same time matters were coming to a head between the Claimant and a female Research Assistant employed in the same Department as the Claimant, Mrs Beverly Carroll. Mrs Carroll, who did not become a member of the AUT until 9 March 1995, sought guidance from Mr Richard Jay prior to that date. The Claimant alleges that he had written to Mr Jay prior to 9 March 1995, enclosing various complaints relating to Mrs Carroll, but Mr Jay emphatically denies that he ever received any such correspondence.  Mr Jay had advised Mrs Carroll that as she was not, on the occasion of her first visit, a member of the AUT, that there was little he could do for her.  He subsequently advised her to complete the necessary application form and this was effected on 9 March 1995.  Subsequent to that date the Claimant had a conversation with Mr Jay and Mr Jay then indicated that the Claimant should obtain advice from Dr Max Goldstrom who was at that time also an Official of the AUT.

Subsequent to 9 March 1995 there was a meeting between the Claimant and Dr Goldstrom and a Mr John Lynch who was also an Official of the AUT.  At that meeting the Claimant suggested strongly that Mrs Carroll was treating him less favourably than other colleagues and that he believed such treatment had been brought about as the result of his race and/or religion. Dr Goldstrom cautioned the Claimant against making any such allegations without having obtained independent evidence, but the Claimant was clearly unhappy with this advice.  He suggested that he should be represented by a non-white Official or Officer of the AUT and Dr Goldstrom made attempts to obtain the services of such an Official. 

In late March 1995 Dr Goldstrom wrote to the Claimant to inform him that he (Dr Goldstrom) had asked Mr Brian Everett, who was a paid full time Regional Official for the Regional Office for Northern Ireland, to provide assistance to the Claimant. Mr Everett subsequently met with the Claimant in Belfast and there was little, if any, further meetings or correspondence between the Claimant and the individual Respondents after that date. 

The Claimant alleges that the AUT, by itself, and through its Officers, and the individual Respondents have committed acts of discrimination against him on the basis of sex, religious belief and political opinion. Each of the Respondents, individually and collectively, denies each and every such allegation. 

ISSUES

At a Case Management Discussion held on 20 March 2007 it was ordered that the following issues should be determined by a Fair Employment Tribunal at the substantial hearing, namely:

1. Whether a letter of 1 May 1996 from the Respondent’s solicitors, Francis Hanna & Co. constituted a valid response.
2. If not, whether the Respondents should be debarred from defending the proceedings.
3. Whether the Claimant’s claim to the Fair Employment Tribunal in respect of his allegations of sex and religious discrimination are presented within the time limit provided.
4. If not, whether it is just and equitable for the Tribunal to exercise its discretion to extend time to allow the application to be presented.
5. Whether the Tribunal has jurisdiction in the context of these applications to consider whether the allegations against the Respondent, Mr Mercer, having regard to the capacity in which he was acting at the time and the fact that the Claimant had issued separate proceedings concerning the subject matter of these allegations.
6. Whether the Claimant was discriminated against as alleged on the grounds of his sex.
7. Whether the Claimant was discriminated against as alleged on the grounds of his religious belief.
8. If the answer to either question 4 or 5, is ‘Yes’, whether the Claimant is entitled to any award.

To the above this present Fair Employment Tribunal ordered an additional issue to be determined namely:
9. Whether the Claimant was victimised by the Respondents or any of them.

Before continuing with these submissions, the Respondents invite the Fair Employment Tribunal to exercise its powers under Rule 18(7)(c) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and Rule 17(7)(c) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, to strike out the claims of the Claimant on the grounds that the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable and vexatious.  The Respondents are fully aware and accept that the Tribunal has detailed notes of the evidence that was given in the hearing and also at various events that occurred.  They would, respectfully however, remind the Tribunal of the manner in which the Claimant, on occasions, addressed the Tribunal and the accusations of impropriety that he made against the Tribunal and against the Chairman in particular and also against Counsel for the Respondents.  He verbally abused both his initial representative and his subsequent “friend”.  At the outset of the hearing he produced a written statement which alleged that he did not consider that he would receive a fair hearing. Taking all of these matters into account the Respondents respectfully suggest that, even at this late stage that the claims of the Claimant should be struck out for the reasons set out above.

THE LAW

Before continuing with these submissions, the Respondents recognise that a considerable period of time (12 years) has elapsed since the events, which are the subject matter of this hearing, occurred and that there have been many changes in the relevant legislation since those events. The changes in the legislation have been, for the most part, of benefit to Claimants. The Respondents are content that the Tribunal determines matters in accordance with the relevant legislation as it now exists.

TIME

Since the legislation relating to Fair Employment and Sex Discrimination first came into operation in 1976, there has been imposed upon Claimants a time limit within which a complaint must be presented to a Tribunal as otherwise the Tribunal will not consider such a complaint. The Respondents submit that in essence the time limits relevant to claims under the Fair Employment and Sex Discrimination legislation (including victimisation) can be summarised as follows:

“A complaint must be presented to a Tribunal before the end of:
a) The period of three months beginning when the act complained of was done
b) A Tribunal may nevertheless consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so
c) Any act extending over a period shall be treated as done at the end of that period.”

For the reasons set out below, the Respondents contend that each act (or omission) complained of by the Claimant, is out of time and that it is not just and equitable to extend that time. Accordingly, the Respondents set out immediately below what they understand to be the relevant acts of which the Claimant makes complaint, the date or dates of their commission or omission.  The Respondents respectfully remind the Tribunal that the claims of discrimination (and victimisation) were received by the Tribunal on 18 April 1996.  The Respondents say that generally, all the relevant events occurred in February/March/April 1995 with the exception of the “change of status” of membership of the AUT which was effected in October 1995.

DUNCAN MERCER

It is abundantly clear from all the relevant documentation that correspondence between the
Claimant and Dr Mercer and Dr Mercer and QUB arose out of Dr Mercer’s position as Secretary of the Common Room and was not in any way connected or related to Dr Mercer’s position within the AUT.  It is true that the Claimant alleges that Dr Mercer (and other Respondents) collaborated with QUB in bringing about the termination of the Claimant’s employment with QUB, but from the documents presented to the Tribunal it is clear that such allegations of collaboration by Dr Mercer (and other Respondents) were being made by the Claimant in late 1995. The Respondents therefore submit that the Claimant’s complaint against Dr Mercer is out of time and that the Claimant has not provided any reason why the Tribunal should exercise its discretion to extend the time.

RICHARD JAY

The complaints against Mr Jay relate to events that occurred in February/March/April and possibly May 1995 and, additionally, a letter written by Mr Jay to the National AUT in early 1996.  The Claimant alleges that Mr Jay discriminated against him on the grounds of sex, religious and political discrimination by refusing to provide him with appropriate advice, by providing advice to Mrs Beverly Carroll, by encouraging Mrs Carroll to make a complaint of sexual harassment against the Claimant and by assisting Mrs Carroll in the making of that complaint to QUB.  The documents provided to the Tribunal clearly indicate that all of these relevant complaints ended before the summer of 1995 and that again the Claimant has failed to put forward any reason to justify the exercise of the Tribunal’s discretion.

The remaining complaint relates to a letter written by Mr Jay in early l996 but, as is clear from the letter, it was marked “Private and Confidential” and written to express Mr Jay’s annoyance about the treatment that had been meted out to him by the Claimant and his associates.  Mr Jay was a member of Committees which considered applications by the Claimant for legal assistance, but declined to attend meetings of those Committees when such applications were being considered.  There is no evidence that he sought to influence the deliberations of any such Committee and indeed his letter specifically refers to being written “in his personal capacity”. The Respondents therefore say that this letter could not in any sense be construed as an act of discrimination and is therefore not relevant to the present proceedings.

MAX GOLDSTROM

The complaints against Dr Goldstrom all relate to a period which ended, at the latest, in April 1995 save that a further complaint is that Dr Goldstrom, together with an Officer of QUB, attended a hearing of an application by the Claimant for Judicial Review of a decision of QUB. The Respondents say that when the Claimant first met Mr Brian Everett, then any relationship that he had had with Dr Goldstrom came to an end and that any alleged acts of discrimination by Dr Goldstrom had been committed before that time.  Again, the Claimant has not put forward any reason to justify the Tribunal in exercising its discretion.

In relation to Dr Goldstrom’s attendance at the Judicial Review hearing, the Respondents say that by its very nature an application for Judicial Review is based upon Affidavits filed by the respective parties and which are in the Judge’s papers before any hearing begins.  It therefore follows that Dr Goldstrom’s attendance, even with an Officer of QUB, cannot in any way have influenced the decision of the Judge and cannot, even in the most liberal sense, be construed as an act of discrimination.

PAUL HUDSON

The principal complaint against Dr Hudson is that he changed the status of the Claimant’s membership of AUT in October 1995.  Leaving aside Dr Hudson’s contention that be was entitled, and indeed obliged to change the nature of the Claimant’s membership because of the termination of the Claimant’s employment with QUB, Dr Hudson informed the Claimant in writing of that change of membership but the Claimant failed to object to that change or indeed to correspond with Dr Hudson in any shape or form. This change of membership occurred approximately six months before the Claimant presented his complaint to the Tribunal and is therefore out of time.  Again, no reason is forthcoming from the Claimant as to why the Tribunal should exercise its discretion to extend the time.

THE ISSUES

1. The Appearance of the Respondents
By letter of 1 May 1996 Francis Hanna & Company signified its representation for the Respondents. There was no requirement at that date to provide an Appearance in any particular specified form. By virtue of Rule 13 of the Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1989 a Notice of Appearance which is presented to the Secretary after the time appointed (14 days) shall be deemed to include an application for an extension of the time so appointed. Therefore, even if the letter of 1 May 1996 can be considered to be outside the 14 day time limit, it was clearly treated by the Tribunal as including an extension of time and a subsequent letter from the Tribunal confirmed that it had been accepted as a valid Appearance. However, insofar as it is necessary, the Respondents now ask the Tribunal to grant any extension of time that may be necessary so as to constitute the letter of 1 May 1996 as a valid Appearance.

2. Should the Respondents be debarred from defending the proceedings?
This only arises if the Tribunal considers that the letter of 1 May 1996 did not constitute a valid Appearance. For the reasons set out above, it is submitted that the letter did constitute a valid Appearance and this was accepted at an early stage by the Tribunal.

3. Whether the Claimant’s claims (of both sex and religious discrimination) are presented within the time limit provided?
For the reasons set out above the Respondents say that no genuine complaint of any such discrimination was presented within the relevant period.

In response to the Claimant’s vague contention that the acts (and omissions) of the Respondents extended over a period and that the acts (and omissions) should be treated as done at the end of that period, the Respondents refer to the following authorities, namely:

a) Robertson v. Bexley Community Centre 120031 IRLR.434 which held that to establish a continuing act it must be shown that the employer had a practice policy or a regime governing the act said to constitute it

b) Hendricks v. Metropolitan Police Commissioner L20031 IRLR.96 in which Mummery LJ stated:

“Instead the focus should be on the substance of the complaint that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed”.

There is absolutely no evidence to suggest that the AUT by itself, or through any of the Respondents, had a practice policy or regime which discriminated in any manner against any of its members.  While strenuously maintaining their contention that no act or omission of the Respondents, at any time whatsoever, could be said to constitute an act of discrimination, the end of the relevant “period” must have been the date that Mr Jay wrote his letter in early 1996. Leaving aside for the moment the Respondents’ further contention that no detriment could have been caused by the writing of that letter, and further, that even if the letter did cause a detriment it can only have been caused when the letter was read, and since that was
outside Northern Ireland, it does not fall within the jurisdiction of this Tribunal, the letter was not in any way connected with Mr Jay’s “support” for Mrs Carroll, but rather to highlight the treatment that he was suffering at the hands of the Claimant and his associates. At best therefore, it was an isolated or unconnected act and accordingly the “period” application is irrelevant.

4. Exercise of Tribunal’s discretion
If the Tribunal considers that all the complaints of the Complainant are out of time, then it is submitted that there is a burden placed upon the Claimant to satisfy the Tribunal that it is just and equitable to extend the time.  The Claimant has failed to provide any reason for his failure to present his complaints in time.  This is all the more striking because the Claimant has acknowledged that, well before April 1996, he had lodged similar proceedings against QUB and other named Respondents.  It follows that the Respondents say that no basis has been established by the Claimant which would enable the Tribunal to exercise its discretion to extend the time.

5. Dr Duncan Mercer
The Claimant has acknowledged that he issued civil proceedings against Dr Mercer (and others) arising out of the theft of his camcorder from his room within the Queen’s Common Room.  As set out above the Respondents say that all correspondence to Dr Mercer from the Claimant and all correspondence from Dr Mercer to the Claimant and indeed to QUB, was plainly and clearly written to Dr Mercer and by Dr Mercer in his capacity as the Secretary of the Common Room. His current Presidency of the Local AUT was clearly coincidental and was neither the reason for the Claimant writing to him nor the reason for Dr Mercer replying to the Claimant or providing information and correspondence to QUB.  For these reasons it is submitted that Dr Mercer should not have been and should no longer be a party to these proceedings.

6. Sex Discrimination and
7. Religious Belief
The present legislation, as the Respondents understand it, is as follows:
a)	 It is unlawful to discriminate against another on the ground of religious belief or political opinion (Article 3(7) of the Fair Employment and Treatment (Northern Ireland) Order 1998)

b) It is unlawful to discriminate against another on the ground of sex (Article 3(1) Sex Discrimination (Northern Ireland) Order 1976)

c) Discrimination on the grounds of religious belief or political opinion is to treat someone less favourably than another on the ground of religious belief or political opinion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998)
d) Discrimination on the grounds of sex is to treat a woman less favourably than a man (or a man less favourably than a woman) on the ground of sex (Article 3 of the Sex Discrimination (Northern Ireland) Order 1976)

e) It is for the Claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of  an adequate explanation, that the Respondent has committed an act of discrimination against the Claimant which is unlawful by virtue of Part Ill or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the Claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976)

f) It is for the Claimant who complains of discrimination on the grounds of religious belief or political opinion to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination against the Claimant which is unlawful by virtue of Part III or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998 is to be treated as having committed such an act of discrimination against the Claimant (Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998).

g) In McDonagh and Ors. v. Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA.3 the Court of Appeal in Northern Ireland stated that Tribunals, when considering claims of discrimination, must have regard to the burden of proof. That Court followed and approved a decision of the Court of Appeal in England in the case of Igen v. Wong [2005] 3 All ER.812 para(h), the guidance set out in the Igen case is as follows:

i.	Pursuant to Section 63A of the Sex Discrimination Act, it is for the Claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination against the Claimant which is unlawful by virtue of Part 11 or which by virtue of Section 41 or Section 42 of the Sex Discrimination Act is to be treated as having been committed against the Claimant.

ii.	If the Claimant does not prove such facts, he or she will fail

iii.	It is important to bear in mind in deciding whether the Claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
iv.	In deciding whether the Claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

v.	It is important to note the word “could” in Section 63A(2). At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

vi.	In considering what inferences or inclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

vii.	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw from an evasive or equivocal reply to a questionnaire or any other questions that are relevant.

viii.	Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

ix.	Where the Claimant has proved facts from which conclusions could be drawn that the Respondent has treated the Claimant less favourably on the ground of sex, then the burden of proof moves to the Respondent.

x.	It is then for the Respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.

xi.	To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever, is compatible with the Burden of Proof Directive”.
xii.	That requires a Tribunal to assess not merely whether the Respondent has proved an explanation for the facts from which such inferences can be drawn, but further, that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

xiii.	Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

A further discussion on the guidelines set out in Igen occurred in the case of Madarassy v. Nomura International plc [2007] EWCA.33
at paragraphs 56, 57 and 58 Mummery LJ stated:

“The Court in Igen v. Wong expressly rejected the argument that it was sufficient for the Complainant simply to prove facts from which the Tribunal could conclude that the Respondent could have committed an unlawful act of discrimination, the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the Respondent has committed an unlawful act of discrimination.

“Could conclude” in Section 63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the different treatment. It would also include evidence adduced by a Respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage ... the Tribunal would need to consider all the evidence relevant to the discrimination complaint, for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the Complainant to prove less favourable treatment, evidence as to whether the comparisons being made by the Complainant were of like with like as required by Section 5(3) of the 1975 Act and available evidence of the reasons for the differential treatment.”

Similar views on the “burden of proof’ and “inferences” can be found in:
Chief Constable of West Yorkshire v. Vento [2001] 1RLR.124 and 
Shamoon v. Chief Constable of the RUC [2003] ICR.337

VICTIMISATION
Both relevant statutes provide that:
“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purpose 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

b) 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, or

c) by reason that the discriminator knows that the person victimised intends to do any of those things or suspects that the person victimised has done or intends to do any of them.”

It is right to say that before April 1996 the Claimant had issued similar proceedings against QUB and others and it is likely that each of the Respondents were aware that such proceedings had been instigated. However, the cases of Aziz v. Trinity Street Taxis Limited [1988] ICR.534 and Chief Constable of West Yorkshire Police v. Khan [2001] IRLR.830, clearly demonstrate that a person claiming to have been victimised must show a causal nexus between the fact of having done the protected act and the decision of the Respondent to impose less favourable treatment.

In these present proceedings the Claimant has, in essence, alleged a conspiracy by Mrs Carroll, the AUT and QUB.  He alleges that QUB somehow persuaded Mrs Carroll to treat the Claimant less favourably than she treated his colleagues and did so with a view to enabling QUB to terminate the Claimant’s employment.  Furthermore, he alleges that the AUT assisted Mrs Carroll to bring a complaint against the Claimant and again did so with a view to enabling QUB to terminate the Claimant’s employment.  The Respondents say that it is difficult to understand how such an outrageous and fantastic claim can be made by the Claimant but does, of course, take into account that it has been clearly established that the Claimant is a serial applicant in relation to discriminating cases, both in Northern Ireland, the United Kingdom and elsewhere.  He has alleged conspiracy by Chairmen of Tribunals, by Tribunal staff, by the Press and by other Respondents in similar cases.  He has been declared a vexatious litigant in other jurisdictions.  In these proceedings the complaints of the Claimant are of sex and religious discrimination, but in another jurisdiction and in proceedings against the AUT, his complaints were of race discrimination.  The Respondents contend that he chooses a particular type of discrimination complaint when he feels that it suits that complaint and that, in fact, he goes shopping for jurisdictions.

From the above, and unless the Tribunal accepts the Claimant’s conspiracy theory, there is no causal nexus sufficient to ground a claim of victimisation and as such this claim should be rejected by the Tribunal.

STATUTORY QUESTIONNAIRE

It is right to say that no replies have been furnished to statutory questionnaires issued by the Claimant.  However, as can be seen from the Claimant’s letter of 2 May 1996, it can be seen that the questionnaires were sent to Dr Duncan Mercer and do not appear to have been “served” on any other Respondent.  In any event, the Respondent’s solicitors indicated at a very early stage that matters relating to “time limits” were of considerable importance and should be the subject matter of a preliminary hearing.  The Respondents contend that it is usual practice for Respondents to be permitted to forego completion of a reply to such questionnaire while preliminary issues are still outstanding.  In any event, despite many Case Management Discussions in these proceedings, the alleged failure on the part of the Respondents or any of them to provide replies to the statutory questionnaires, has never arisen.  This is understandable because of the Claimant’s other complaints against the AUT and its Senior Officers outside Northern Ireland which have related to events immediately following the events which are the subject matter of the present proceedings before this Tribunal.

APPLICATION OF THE LAW TO THE FACTS

The Respondents are mindful of the helpful information provided by the Tribunal, at the conclusion of the hearing, that the Tribunal had made detailed notes of the evidence and would prefer that the parties directed their submissions to the issues as previously directed at a CMD and the additional issues directed by this present Tribunal. Accordingly, these Respondents will refrain from rehearsing their views on the evidence and are satisfied that the Tribunal will find all the relevant facts from the entirety of the evidence.

Recognising the test and guidelines provided in the Igen case and approved in subsequent cases, the Respondents submit:

1. The Claimant has failed to prove any facts from which conclusions or inferences could be drawn that the Respondents have treated the Claimant less favourably on the grounds of sex, religious belief, or political opinion or have victimised him and therefore that the burden of proof has not moved from the Claimant to the Respondents.

2. That even if the Claimant has proved facts from which conclusions or inferences could be drawn that the Respondents, or any of them, have treated him less favourably, the Respondents say that they have proved, not only on the balance of probabilities, but beyond reasonable doubt, that their “treatment” of the Claimant was in no sense whatsoever on the grounds of his sex, religious belief or political opinion or indeed that they victimised him.

IN PARTICULAR

a)	Even if Mrs Carroll had not become a member of the AUT on 9 March 1995 and had not received specific advice from Mr Jay on that date, Mr Jay nevertheless could not possibly have provided advice to the Claimant as his earlier meeting with Mrs Carroll had provided him with general information about her dispute with the Claimant.

b)	Mr Jay quite properly sought representation for the Claimant from Dr Goldstrom and Dr Goldstrom agreed to, and did meet with the Claimant.

c)	Dr Goldstrom, quite properly, advised the Claimant to proceed with caution and underlined the difficulties associated with allegations of discrimination.

d)	Upon realising that his advice to the Claimant had not been well received, Dr Goldstrom then contacted the Senior Official in the AUT with responsibilities for Northern Ireland.

e)	Mr Jay (and the other Respondents to a greater or lesser degree) were subjected to a campaign of vilification by the Claimant and his associates and, as such, Mr Jay was perfectly entitled to write a letter, in his personal capacity, setting out his distress and upset brought on by the effects of that campaign.

f)	The Claimant has not challenged the assertion of Dr Hudson that the Rules of the AUT provide that there must be a change in the nature of membership, when an existing member ceases to be employed by a higher Education Authority. The Claimant’s assertion that there was still an employment relationship in existence between him and QUB as of October 1995. is without foundation or substance.

g)	The discharge of Mrs Carroll’s legal costs by the AUT was entirely appropriate in that she could not have sought or obtained advice from Francis Hanna & Company as the Claimant had already spoken to one of the solicitors in that firm.

h)	Efforts by the AUT to provide the Claimant with legal advice from Francis Hanna & Company were terminated after a period of time due to serious allegations made by the Claimant against the firm.

i)	Complaints by the Claimant that he was not informed of various meetings of the AUT are baseless and the witness statement of Mr Titterington clearly demonstrates this to be the case. In particular, that statement reveals that shortly after one of the relevant meetings the Claimant explained his absence from the meeting on the basis that he was not aware that a particular item of interest to him would be on the Agenda. He expressly failed to state or allege to Mr Titterington that he had not been aware of the date of the meeting.

j)	Dr Mercer’s involvement with the Claimant plainly arose from his position as Secretary of the Common Room and was not in any way related to his office in the AUT.

k)	On no less than three occasions the AUT tabled, in its Agenda, the issue raised by the Claimant relating in general to discrimination within the AUT.  It also provided additional officials who would chair the meeting in the event that the item was raised and discussed.

l)	Dr Hudson has clearly demonstrated his entitlement to write the article in the magazine which disputed a version of events which had appeared in the Times Higher Education Supplement.
m)	The Claimant cannot be considered a credible witness. At the opening of this hearing he produced a document which, in essence, stated that he did not have any faith in obtaining a fair hearing. However, during the course of the hearing he suggested strongly that he never had any preconceived view on this subject. Furthermore, he attempted to play down his friendship and relationship with Mr James McCue but could not challenge evidence that he had jointly demonstrated with Mr McCue outside QUB and that he was listed as a witness on behalf of Mr McCue in proceedings brought by Mr McCue and which were at hearing during the currency of these present proceedings.

n)	That anyone who disagreed with his views was branded a fascist, a bigot, a racist, a Zionist, Mafia, and a religious zealot.

The Respondents respectfully contend that the facts found by the Tribunal will clearly demonstrate fairness and even-handedness on the part of the AUT and the individual Respondents and will constitute a complete rejection of the allegations made by the Claimant.

FRANCIS E. O’REILLY
Bar Library

Case No. 00218/96/FET&01789/96/SD
The Fair Employment Tribunal 
Sitting In Belfast

S. Deman
Claimant 

v

AUT, Dr. Duncan Mercer, Richard Jay and Paul Hudson
  
Respondents
______________________________________________________________

CLAIMANT’S REPLY SUBMISSIONS 
______________________________________________________________

Unless otherwise, all references to pages numbers or documents, are to those in the Bundle.
C1 & C2:  CAIMANT'S BUNDLES  & R1: RESPONDENT'S BUNDLE 

1.	The Claimant does not imagine that the Tribunal was extending an invitation to the parties to make their reply submissions at length.  Accordingly the Claimant will not seek to do so and confine his reply submission limited to correction in errors and also on points arising from the R’s submissions. 

2.	Under subheading of C’s submissions he would like to correct and add a few additional points to the Factual Matrix, which were omitted due to an oversight.   

•	In item No. 3 R1: p. 84 should be noted. 
•	No. 4, in the first sentence, it must be read as On 20 February 1994 instead of 1992 and the third sentence should be read as, “The dispute is fully set out in numerous documents in bundle [e.g. C1: p. 1-2, 12, 33, 34, 40-43(i), 45, 46-47, 50-58, 60-63, 65, 66, 93, 93(a), 165-171, 175, 176-180, 260-261].
•	Dr Mercer also harassed C by telephone upon his return from Jerusalem He admitted because the call was traced to his private line [C1: p. 167] and did not produce a copy of the QUB list informing him about the C’s status of employment [C1: p. 65].  
•	4(a) be added in the factual matrix as: “Mrs Carroll’s job description was revised on 22 February 1995 following C’s complaint and her meeting with Mr Nesbitt [C1: p. 2(i)-(ii)].  
•	New item 4(b) be added to factual matrix: On 27 February 1995 Mr Nesbitt phoned EO Unit the chronology of his notes goes from bottom to the top.  Mr Nesbitt recoded in his notes as follows: “SD, a member of her dept is dissatisfied with her work. BC believes “ he is hassling her” but does not think it is because of her sex” [C1: p. 5].   
•	In item No. 6 it should be added before second sentence that, “On 7 March 1995 C sent a memo to Mrs Carroll outlining his dissatisfaction as to her services as a support staff” [C1: p. 148].
•	In No. 19 it should be added, “Dr. Mercer wrote a letter on the same day which has been recorded in the notes of a meeting between Michael Moore, Jennifer Wilshin and Chris McNairney (a Senior Personnel Officer) [C1: p. 33].
•	25(a) be added to factual matrix as follows: “On or about 25 June 1995 Mr Paul Browne produced the report of his investigation of Mrs Carroll’s erroneous complaint that, “ …I conclude that it is not possible to substantiate the allegation made by Ms. Carroll that she was subjected to sexual harassment” [C1: p. 48]. 
•	Item 27(a) be added to read as follows: “Dr Mercer also harassed C by telephone upon his return from Jerusalem He admitted because the call was traced to his private line [C1: p. 167].
•	Under C’s issues No. 3 (2) should read, “Therefore there was NO contract legal or otherwise to commit himself to her case hoping she would became a member.   
•	Both th QUB and AUT were going so fast against C that on 17 July 1995 Employment and Training agency wrote to C asked C to return his work permit [C1: p.250] to prepare grounds for deportation. 

3.	SPECIFIC COMMENTS ON R’s SUBMISSIONS: 

(1)	In R’s counsel’s introduction he asserted that, “Dr Goldstrom cautioned the Claimant against making any such allegations without having obtained independent evidence, but the Claimant was clearly unhappy with this advice”.  Contrary to his assertion there is no reference to “independent evidence”.  Further C’s complaint was not limited asking him to provide evidence despite 12 Exhibits attached to his draft complaint of 8 March 1995 and but he also complained about discouraging him to pursue his genuine complaint of religious and racial discrimination. In contrast to Dr. Goldstrom, his colleague who was selected by Mr. Jay believed Mrs Carroll’s allegations on her face value without any investigation and/or evidence at all. Clearly Dr Goldstrom acted contrary to FEC Code of Practice prescribed for TUs with regards to complaints of religious and other forms of discrimination [C1: p. 301-302].

(2)	ISSUES:

R’s Issue No.5: This issue was raised at very late stage in the proceedings in 27 September 2005 although the Tribunal has had identified a list of issues in various CMDs held on 20 March 1997, 20 June 1997, 22 December 1999, 14 June 2005, [C2: p. 50, 140, 164, 222, 280]. If R’s was serious about this issue they would have raised it an early stage of the proceedings but they not do so. C has not dealt with this as a separate issue in his list of issues although in he has partially covered this point under issues nos. 5 & 8 against Dr. Mercer in the list. It may be pointed out that Dr. Mercer was also President of the QUB local AUT and though his capacity was dual but the mental faculty was one and the same. When asked in cross-examination about his one body and two minds he gave evidence that it depends on the situation. In this scenario, C was due for an interview for confirmation in post and Dr Mercer availed himself of the situation to victimise C by sending prejudicial correspondence to QUB and its officers.  Certainly he has not done in his capacity as the Secretary of SCR because according his own evidence in cross-examination, he spoke to Mr Browne, an EO Officer to get his advice on the abuse of the SCR staff, therefore he could not have sent his correspondence with C in relation to SCR dispute.  He sent him correspondence due to the pressure that C was putting the university under, i.e., C’s complaints of religious discrimination and the FEC questionnaires of 19 April 1995, in which Mr Jay was assisting Mr Browne & Mr McNairney in drafting replies. This was further confirmed by Dr. Mercer’s harassing telephone at C’s residence when he had returned from Jerusalem on 30 June 1995. Mr Jay accepted he was subconsciously affected by his relationship with Dr Mercer and he was reciprocating as President of the QUB local AUT.  Therefore the tribunal must reject R’s assertion that Dr Mercer had two minds and one body depending upon the situation.

R’s Issue No. 7: In course of hearing the Tribunal had agreed that there is also a claim of discrimination on the grounds of political opinion, which R’s counsel has omitted.

R’s Strikeout Application:

Under the heading of Issues R has also invited the Tribunal to strike out C’s claims on the grounds that the manner in which the C has conducted proceedings has been scandalous, unreasonable and vexatious.  C is not going labour responding R’s application, which on face appears to be vexatious, therefore need any extensive comments.  However, it is worth mentioning both R’s solicitor and the tribunal are unanimous in denying access to transcript of hearing which is vital to prove or deny outrageous allegations.  C makes a few points below:

(1)	It is true C at the very outset of the hearing expressed orally and also written concerns about a fair hearing in Tribunals in Belfast in view of his past experience. However, Mr. Crother, Chairman assured C that he would remain open minded and C started his case with an open mind, 

(2)	It is nonsense that C verbally abused both his initial representative and his subsequent “friend”. Both will give sworn affidavits to say just the opposite,  

(3)	It is matter of record C has filed a Writ against the past and present Secretary of the Tribunals on religious and racial grounds and he has also lodged complaints against some members of the judiciary, which was outlined in C’s application for recusal,

(4)	C had serious concerns about the fairness of the Tribunal in course of hearing. After careful consideration, in the second week of hearing after an assault by R’s counsel in the Courtroom, he made an application for the Tribunal’s recusal outlining grounds in support. After hearing C’s application the Tribunal refused to rescue itself.  Although C has requested the Tribunal to State a Case for the Opinion of the Court of Appeal he did not make further application for recusal,

3.	Law & Time Issue:

C’s AMENDMENT TO ET1: 

Not surprisingly, R takes no objections to C’s amended ET1 of 31st January 1997.  They could not have done so having requested particulars of the same in their request of 7 April 1997 in question No. 21 [C2: p. 58-61].  On 7 July 1997 Tribunal made an order limited to 11 items, which C complied on 30 July 1997 [C2: p. 144, 194-195]. 
 
Dr. DUNCAN MERCER: 

C rejects R’s assertion that his each of claim is out of time. C and his wife were members of the QUB SCR.  The dispute as to QUB SCR was ongoing and connected to Dr. Mercer’s acts of sending his correspondence to QUB, Paul Browne, Mr Camlin and Mr. McNairney. Claimant would not have known about the causal connections between SCR dispute and close cooperation between QUB prosecution team [Paul Browne, Chris McNairney and Mr Camlin] and Dr Mercer without the realisation of discovery on or about mid March 1995 from Estrange & Brett (also QUB counsel, Mr Drennen, now one of the full time Chairman at the Tribunal), QUB solicitors and also from the National AUT Head Quarter in London pursuant Tribunal’s Order in London. On 15 March 1996 C wrote to   Dr Joanna DeGroot, President of National AUT, which has reference to correspondence between Dr. Mercer and the QUB officers [C1: p. 95-96, 173-174]. 

Again C would not have known the details of Mrs Carroll’s written complaint and the above causal links in the QUB disciplinary process without the realisation of discovery of documents on or about mid March 1995 from Estrange & Brett (also QUB counsel, Mr Drennen, now one of the full time Chairman at the Tribunal), QUB solicitors and also from the National AUT Head Quarter in London pursuant Tribunal’s Order in London.  C’s letter of 15 March 1996 also has reference to Mr. Richard Jay’s communications between the QUB and him [C1: p. 95-96, 173-174].  

MR RICHARD JAY:

The National AUT at the recommendation of the LASAC was reconsidering C’s application for legal assistance and reimbursement of out of pocket expenses of his own solicitor against the QUB.  However, it was because of the pressure put by the local AUT on the National AUT denies C’s application. In any case such a pressure against its own members by the local AUT without informing him or without disclosing these letters and any reasons to him clearly amounts to victimization.  Regardless of mentioning ‘Private & Confidential’ the purpose and content of Mr. Jay’s letter of 6 March 1996 and attachments on the AUT’s letterhead [major parts of the contents of his letter and 3 pages long attachment was not about his treatment but shows his support for fabrication of Mrs Carroll’s complaint which was not supported by Mrs Carroll’s own written complaint of 24 April 1995 to EO officer Mr Browne [C1: p. 26(ii) and 231-234]. Mr Jay accepted this in cross-examination. 

He also stated that he also meant to complain on behalf of Mercer and others [although he said they did not ask him to do so], clearly shows that he meant to make known his views to the LAC members through its Secretary Dr Geoffrey Talbot, who were scheduled to reconsider C’s application for legal assistance for the alleged reason of his conflict with QUB local AUT President, Dr. Mercer is very important. 

Further if he meant to complaint against C, proper course was either to write to Mr Brian Everett, Regional Official for Northern Ireland or to Mr Triesman, General Secretary, National AUT under the AUT Rules 25 0r 27.  This shows the long-standing grudge for which C as member of the AUT was entitled for fair consideration of his application for legal assistance was deliberately denied it. Obviously, these officials wanted to settle scores with C and this is a classic example of victimization.  Surprisingly, despite the Tribunal’s orders of 8 January and 30 April 1997 R’s solicitor failed to disclose the above documents although they were highly relevant to preliminary hearing on the time issue [C2: p. 35-36, 79-80, 94-96].

Dr. MAX GOLDSTROM:

The causal link between Dr. Goldstrom’s earlier contact with Mr Chris McNairney following a meeting with C on 13 March 1995 and his long march to the High Court of Justice with Mr Chris McNairney, a Senior Personnel Officer of the QUB, who orchestrated disciplinary proceedings against C, to attend a hearing of an application by the Claimant for Judicial Review of a decision of QUB became known only on 19 January 1996 [C1: p. 74(ii)]. Subsequently, like his colleague Mr Jay, on 30 March 1996 he also wrote a prejudicial letter to Dr. Geoffrey Talbot, Secretary to LAC [C1: p. 97-99]. The intent of the letter is to malign the LAC through Dr Talbot, a former colleague & local AUT official at the QUB who already came to have animosity to C, which he showed in his various written communications. However, unlike Mr Jay, Dr. Goldstrom’s letter and attachments, though on AUT letterhead, is not marked 'Private & Confidential’. He found it easy to write inaccurate documents knowing that they were likely to be acted upon or, at least, materially to affect LAC views. However, for the present purposes whether he did so on the basis of “tit for tat” or “an eye for eye” does not matter or, at least, does not matter very much. He accepted he wrote things that were not true or inaccurate. His motive was obvious: to disadvantage C. Hence, Dr Goldstrom had not ceased to cause detriment to C and therefore his last act in the series of acts was his letter of 30 Mach 1996. 

In relation to Dr Goldstrom’s attendance at the Judicial Review hearing, C says that by its very nature, it was an added insult to injury. Dr. Goldstrom’s open identification with Mr. McNairney (a leader of QUB prosecution team) demonstrated solidarity with the QUB action against C.  He never disclose to C that he was a personal friend of Mr McNairney and his close association with prosecution also confirms Dr Goldstrom’s heart was never been in C’s case, which explains why he straight went to see Mr McNairney after briefly meeting with C on 13 March 1995.   

Dr. PAUL HUDSON

Contrary to R’s counsel’s assertion the principal complaint against Dr Hudson is that he changed the status of the C’s membership of AUT on 20 October 1995 and he also failed to give coverage of C’s judicial review application and also of the complaints of religious discrimination and victimisation against the QUB & his previous clients Mr Nesbitt in the department of Accounting and Finance. As to change of AUT membership C complaint to Mr Triesman, General Secretary of National AUT, which was subject of investigation. C also complained to Northern Ireland Commissioners for Trade Unions along with other matters [C1: p. 369]. 

THE ISSUES:

R’s counsel claims that a subsequent letter from the tribunal confirmed that it had been accepted their letter of 1 May 1996 as a valid Notice of Appearance. In course of hearing C requested both, the Tribunal and R to provide a copy of this letter but no progress has been made.  In any event R’s letter of 1 May 1996 did not meet the requirement under the Fair Employment Tribunals (Rules of Procedure) Regulations 1989 or most current rules that it should also include the grounds on which R claims to resist the claims. In fact, there are none in R’s letter of 1st May 1996. Further R sent the Tribunal their grounds of resisting the claim on 24 January 1996 without explaining why it was nor reasonably practicable for them to provide the grounds of resisting the claim along with their letter of 1st May 1996 [C2: p. 44-44].  Therefore we invite the Tribunal to reject R’s reasoning that their letter of 1st May 1996 was a valid Notice of Appearance and debar R from defending these proceedings or enter a fault judgement under the new rules.  C would also rely upon EAT decision in Agrico UK Ltd. v Amanda Ireland EATS/0024/05. We believe R was counting on its clouts with the Tribunals in Northern Ireland.

CONTINUING ACTS: 

It is clear from C’s factual matrix that R has not ceased its thought process and acts of discrimination and victimisation. Mr. Jay, Dr Goldstrom and Dr. Mercer went behind C’s back to cause him detriment by sending their prejudicial letters and/or comments without his knowledge and without giving him an opportunity to comment on the accuracies and biased contents of their communications to Dr Talbot. The thought process of Mr Jay and Dr Goldstrom to cause detriment started in Belfast rather than in London. His letter of 6 March 1995 was not only supportive of Mrs Carroll but was also a fabrication of her complaints to prejudice LAC. They also failed to disclose these communications pursuant to the Tribunal’s orders. 

Similarly, Dr Hudson continued to write in AUT Newsletter about C one-sided inaccurate and inflammatory stories to discredit him without giving an opportunity to comment. In fact, both QUB local and national AUT leadership trawling around the Country to cause detriment and more recently R’s counsel gave a surprised disclosure by using e-mail correspondence from another branch of the AUT in London to discredit C. Further contrary to R’s claim that “…had practice policy or regime which discriminated in any manner against any of its members”, in cross-examination Mr Jay accepted the existence of numerous complaints discrimination against local and national AUT when C mentioned a number of names. The above conduct is consistent with C’s worst fear as set out in Hendricks v Metropolitan Police Commissioner [2003] IRLR, 96.    

EXERCISE OF TRIBUNAL’S DISCRETION: 

R suggests that C has lodged similar proceedings against QUB and other named respondents. Although R’s counsel does not specify which proceedings it appears he is referring to C’s claims against Dr Mercer and the QUB re: QUB SCR. C gave evidence to the Tribunal with supporting documents that his claims against QUB local AUT and its officers is pre-dated to his claims against QUB SCR.  His claim of religious discrimination against SCR, Dr Mercer and others were not heard and determined on merit due to lack of jurisdiction and sex discrimination part of the claim was withdrawn due to the jurisdictional issue. Therefore, C is at loss as to relevance of those proceedings [R1: p. ??].    

Although R’s counsel is opposing C’s Originating Application they are advancing the same arguments while dealing with the point on late 'Notice of Appearance.' Thus they are taking contradictory stand exposing their hypocrisy. 

Dr. DUNCAN MERCER:

C’s civil proceedings were against SCR and not against Dr Mercer, which was limited to recovery of cost of stolen Camcorder [C1: p. 63].  Again C did not lodge any civil proceeding as to Dr Mercer’s acts of discrimination as C had not yet realised discovery of prejudicial documents and comments sent to QUB and its officers.  Even if one believes for the sake of argument that Dr Mercer caused detriment to C in his capacity as Secretary of SCR (though C rejects it) R has not provided any cogent explanation why Dr Mercer sent correspondence related to SCR dispute to Mr Browne, Mr. McNairney and Mr Camlin (QUB prosecution team). C assumes R is not pleading insanity (automatism) or split personality (SP) or Obsessive Compulsive Disorder (OCD) on the part of Dr Mercer as a defence.  He appeared completely sane with one body and one mind and one thought process. Therefore Tribunal must reject R’s absurd reasoning that Dr Mercer should not have been a party to these proceedings.. 

STATUTORY QUESTIONNAIRES:

R provided a bizarre explanation for their failure to C answer statutory questionnaires. Although the questionnaires were served upon Dr Mercer none of the Respondents raised any objection. C’s ET1 was discussed in the local AUT Executive and there is no reference to any problem as to questionnaires in the minutes. On 14 May 1996 R’s solicitor acknowledged C’s statutory questionnaires and yet made no complaint was made for serving upon Dr Mercer alone except he wanted to have an opportunity to obtain respective clients’ instructions.  C replied to R’s letter right away of 18 May 1995.         

Further there is no legal obligation on the part of R to respond to statutory questionnaires.  R has not cited any legal principles and/or authorities under which the Tribunal could either order or waive reply to statutory questionnaires [C2: p. 34]. However, as the law stands, in Dattani v Chief Constable of West Mercia Police [2005] EAT/0385 held that “a respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure” (para 14), “

Therefore, it would be legitimate for the Tribunal to draw an inference of discrimination from R’s failure to reply to statutory questionnaires and other correspondence.   

RESPONSE TO R’S POINTS:

(1)	Dr. Mercer was the Secretary of QUB SCR as well as President of QUB local AUT. C’s expensive camcorder was stolen from SCR for which C & his wife made a claim. The insurance company paid money for the camcorder but SCR Management under the direction of Dr Mercer withheld that money

(2)	At that time C was in dispute with the QUB and its officials on the grounds of religious discrimination who were actively engaged in getting rid of him. Dr Mercer took advantage of this situation (his mindset) and to facilitate the action of the QUB authorities against C, he contacted Mr Browne and later sent correspondence of his dispute with C to the QUB, Paul Browne, Mr Chris McNairney and Mr Camlin. After some probing, in cross-examination Dr. Mercer admitted sending this correspondence with prejudicial comments to above officers. Mr Browne wrote to Dr Mercer on 26 April 1995 at C1: p.34 asking him to forward the documents right away [see, C1: p. 33] because according to him C putting the QUB authorities under sustained pressure. 

(3)	Dr. Mercer strangely had circulated an open letter of 19 June 1995 [C1: p. 52-54]. This letter shows that Dr. Mercer was bent upon to make the issue public and humiliate and defamed C. At the same time it was intended to invoke disciplinary procedures against C. This open stand of Dr. Mercer against C coupled with the supply of his documents related to his QUB SCR dispute to the QUB & its officers, who were considering C for confirmation of post interview, was nothing but an act of victimisation. It not only facilitated C’s dismissal from the QUB but also covenanted in not even any assistance to C in his case against the QUB mafia. He has been doubly discriminated and victimized by the AUT officials. 

(4)	Further, C and his wife were members of QUB SCR. They both were entitled for the membership. On 24 October 1995 Dr. Mercer as President of QUB-AUT & SCR terminated their membership on the pretext that C’s employment with the QUB has been terminated and allegedly left the QUB. On 27 October 1995 C clearly informed him that he has been granted permission by the High Court for a judicial review of the QUB decision terminating his employment and thus because of tendency of judicial review proceedings the employment relationship of C with the QUB was subsisting still he remained prevented C’s entry into QUB SCR. [QUB decision reviewed on procedural matters and breach of rules of natural justice by way of judicial review (see, REG V EAST BERKSHIRE HEALTH AUTHORITY, Ex Parte Walsh (1984) I.C.R.p155, 161), 

(5)	Moreover, Dr. Mercer accepted SCR membership was not limited to QUB staff.

(6)	 Though, C was to take part in the meeting of NI Professional and Students’ Organization of members from ethnic minority religion, mainly Hindus, of which he was the Secretary. He was also prevented to attend Mr. Trevor Phillips’s lecture, presently, Chairman, Racial & Human Rights Commission. Not only this C’s wife who was a member of SCR in her own right also did suffer expulsion from the SCR membership though there was no reason. 

(7)	On 2nd February 1996 a very humiliating incident occurred when one of his colleagues, Mr. R. V. Geary, a lecturer in Law & AUT member and a drinking partner of Dr. Mercer assaulted C’s wife by physically stopping her to enter the SCR where their daughter was in crèche. In cross-examination he admitted to have these incidents occurred but he could give any explanation for not investigating the same [C1: p. 93]. 

(8)	It may again be pointed out that Dr. Mercer was also President of AUT and though his capacity was dual but the mental faculty was one and the same. The tenor of the letter of 8 February 1996 written to C and his wife clearly exposes the attitude of Dr. Mercer. He does not spell out what was the breach of rules by them and no opportunity was given to them before issuing such an intimidating letter. It may also be pointed out that the earlier letters written C and his wife about the untoward activities of some committee members and the staff of the SCR at C1: p. 65 and 67 were not given any importance. Thus, C & his wife’s uncalled for arbitrary expulsion from SCR membership amounted to discrimination and victimisation. 

(9)	It is a matter of fact everyone had general information about the dispute between C & Mrs Carroll.  This was accepted Dr Hudson in cross-examination. This not a good a good reason not to assist C. 

(10)	Dr Goldstrom was previously involved in Mr Nesbitt v Barrett’s claims and counter claims in the Department of Accounting & Finance and the fact Mr. Jay accepted Mrs Carroll’s case against C and also purported to have Dr Mercer set up on C’s case, it was inappropriate for Mr Jay to sought representation from them. It would mean the prosecution picking up a defence counsel.  

(11)	It turned out Dr Goldstrom was also a friend of Mr McNairney, a leader of the prosecution Team.  His advice was contrary to the FEC Code of Practice for TUs. Although it is not automatically unlawful to fail to observe the Codes, but given composition of the QUN local AUT membership and leadership (all Christian white), if a complaint of religious discrimination or sex discrimination is taken to Industrial Tribunal evidence as to whether or not the employer has complied with the Code will be taken into account by the Industrial Tribunal. In Brighton Borough Council and Bishop v Richard [EAT 431/92] it was said that the employment tribunal was entitled to take into account the council's failure to follow Code of Practice. However what is being said in the decision is as follows: “Noting that the CRE Code of Practice recommends that "the  employer should regularly monitor the effects of selection decisions and personnel practices and procedures in order to assess whether equal opportunities is being achieved", it said: "discover whether they are practising what the preach."  This approach was reaffirmed in Anya, by making reference to guidelines under head (4) of Niell LJ in King.  Respondents all witnesses showed a great deal of ignorance about the FEC Code of Practice.  In fact, no one else has done nothing to realise the E.O. in practice except using it as a public relations exercise.    

(12)	In response to C’s F&BP No. 2(b), “please state precisely how and when Dr Goldstrom became aware that the applicant requested the transfer of his case to England.  Who gave his the instructions an under which rules of the AUT did he transfer the case”.  R’s evasive reply is as follows:  “Dr Goldstrom wrote an Asian former member of the local committee and requested his assistance. However, before further steps could be taken the matter was transferred to England”. 

(13)	Dr. Goldstrom’s evidence has not been tested.  C would not rehearse his arguments why his witness statement should be completely discarded.  His solicitor stated in his evasive reply to C’s F&BP that Dr. Goldstrom arranged an Asian representative for C but then R claimed he was black. However, his letter of 16 March 1995 makes no reference to it.  He purportedly sent two letters to Jim McCrae on 18 March & 26 March 1995. Since Mr McCrae did not contact C and R has not called as a witness therefore how could one say whether such representation was ever made?  Dr Goldstrom would not have known about C’s request for a transfer his case in his complaint of 16 March [received in Mr Triesman’s office on 22nd March 1995], on which he took action on 5 April 1995 [C1: p. 12-13, 20, 26].   C invites the Tribunal to reject R’s fairy tales.

(14)	Dr Goldstrom advice was of particular kind.   In effect it was “stay in line, stay in step”.  As QUB local AUT leader he was counselling C to remain dumb and to take whatever it took to avoid trouble.  As given by National Officer of a major Trade Union, and given FEC Code of Practice that cannot be acceptable advice. Of course, in one sense C was different tin that he was of an ethnic minority religious background.   
	 
(15)	The document at C1: p. 5 containing notes of meeting between EO Unit and Mrs. Carroll held on 27 February 1995 makes it clear that Mrs. Carroll never made a complaint of sexual harassment. At C1: p. 9 also confirmed this fact. In her complaint signed on 24 April 1995 she does not say about any sexual harassment either. 

(16)	Mr. Jay has shown is preference for women over men as he took another case of a woman who was not a QUB local AUT member. It was Mr. Richard Jay who was bent upon to make it a case of sexual harassment and Mr. Paul Browne, who investigated as such, shows that the tried to give her complaint a colour of sexual harassment. The letter written by Mr. Richard Jay on 20 March 1995 at C1: p. 17 exposes this attempt. In this letter Mr. Richard Jay is asking Mr. Paul Browne to “investigate the matter as a possible case of harassment“, then he further goes on to suggest that “that could be held to constitute sexual harassment”. Then again in document at C1: p. 18, Mr. Paul Browne, in spite of hesitation of Mrs. Carroll, tried to persuade her to take advise of the Sexual Harassment Advisory Service. He refers to Mr Jay’s opinion that sexual harassment may have occurred.  Mr. Paul Browne again in his letter of 6 April 1995 asks Mrs. Carroll to meet him. He wrote to her that he has also prepared a report and refers the case as “complaint of sexual harassment”. 

(17)	On 25 April 1995 he wrote a similar letter to C. In this letter he has again referred the case as that of complaint of sexual harassment. However, in spite of all these futile efforts on the part of Mr. Jay and Mr Browne the allegations of sexual harassment could not be substantiated and Mr. Paul Browne had to conclude that it was not a case of sexual harassment and Mrs. Carroll, who was herself hesitant on this aspect initially had to agree that in fact she had not been subjected to sexual harassment [C1: p. 48]. 

(18)	Richard Jay and then investigating it as such by Mr. Paul Browne, though it was not at all, amounted to discrimination on the ground of religious and the tribunal should draw an inference was religious fraternity, eternity and favouring Mrs. Carroll because of her sex. Documents in relation above sequence were disclosed in course of discovery in mid 1996 [C1: p. 95-96, 173-174, C2: p. 144 reply to Q. 10 of F&BP]. 

(19)	The AUT officials were keen to see C out of the QUB it cannot be believed that they did not know the exact nature of his termination. In cross-examination Dr Hudson admits that many have heard from AUT officers involved in the case and these officers may include Mr. Jay, Mr. Goldstrom and Mr. Lynch, he also admits that such cases pass through the senate. Therefore, when he says that he was not aware of the actual status of cease employment after termination he is clearly telling a lie. Still when he writes letter to C on 20 October 1995, C1: p. 64 and says that, “I understand that you have left the employment of Queen’s”, he is entering into deceit and hypocrisy, just to deliberately change the membership status of C. Moreover, the change in status was effected arbitrarily and without inquiring from C, which is obviously against the principles of natural justice. This was done not only to create a ground for depriving C from effective assistance of AUT, to keep him in dark about day to day happenings and to somehow prevent him from taking part in general meetings and conferences [C1: p.  79, 118].

(20)	The case of deceased employee requires assistance from the union, as the union is duty bound to do so the status of a member remains the same as it was at the time of termination of employment by the employer. The status cannot be changed but when the union officials decide to change the status of the member instead, it means that they are supporting the action of the employer, and making it hard for the member to contest the case against the employer. This is come on record that the officials of the local AUT gave several grounds for the complainant to raise voice against them, these officials include Dr. Mercer, Dr. Richard Jay and Dr. Paul Hudson, it was in fact because of this grudge that the membership status of the complainant was deliberately changed and this clearly amounts victimization. 

(21)	The coverage of his judicial review application was of vital important as it had serious ramification of lecturers on probation.  In fact, C’s application was a test case in law whether academic staff on probationary have the same rights as tenured staff? C gave evidence that his cases of judicial review and discrimination were subject of main discussed in the Conference of the University Professional Association 1998 [UPA], which was attended by a large number of senior personnel staff all over the United Kingdom and QUB a personnel made a presentation to participants referring to C by name [see, paragraph 7 of C’s witness statement].  

(22)	Dr. Paul Hudson did not deliberately give coverage of C’s claims of discrimination in the AUT Newsletter even when C specifically referred them. Moreover, though he rebuked Dr Hudson for not asking his side of the story but did not make any attempt to ask his side of story. He published an in accurate account of the failed motion in the AGM and also published these letter in the AUT Newsletter. The mischief is two fold. The purpose of newsletter is precisely to circulate cases of discrimination and victimization particularly affecting members so that the concerned member can get wide support. By not giving coverage this support was denied to C. Secondly, by circulating wrong and inaccurate story attempt was made to damage C’s case. This was deliberately done in order cause harm to C in his fight against discriminatory treatment, which is nothing but a clear case of victimization. 

(23)	In contrast he published inaccurate news about C’s alleged failure to attend the AGM held in June 1996 without knowing his side of the story. In fact, Dr Hudson intensified his campaign against C following a receipt of his ET1 [R1: p. 364, Ex- PH4]. Therefore, Dr Hudson had not ceased his acts of discrimination and victimisation until October 2000 and continued to cause detriment and tarnish C’s credibility and image among AUT members throughout the country as his story appeared on the Yahoo, Goggle and other websites [R1: see, item no. 44 factual matrix and p. 368 Ex-PH7 of Dr Hudson’s witness statement].  

(24)	Hanna & Co., are official solicitors of QUB local AUT and failed to clarify the issue of conflicts of interest. This firm of local AUT was previously involved in Nesbitt v Barrett cases through Dr Goldsrtom and others. It was they who terminated the services and not C [C1: p.  246-247].  

(25)	It is nonsense that C expressly failed to state or allege to have to Mr Titterington that he had not been ware of the dates of meetings. Dr Mercers’ erroneous claims about the special arrangements made to chair AGM have been completely exposed.

(26)	Dr Hudson demonstrated nothing except telling he got some information about C’s cases from the Tribunal staff but produced no evidence. The same Tribunal failed to provide similar information to C about cases against the QUB and AUT although he has been requesting for the last 10 years.  He accepted that he had nit sought C’s comments before publishing his stories to defame and discredit C in Higher Education sector so that he cannot find a job. 

(27)	Contrary to R’s counsel’s assertion C challenge the suggestion that he jointly demonstrated with Mr McCue outside the QUB. C gave evidence that he picketed QUB along with many other people from the ethnic minority. Mr McCue appeared therein his own rights. In, fact Mr Jay accepted in cross-examination that Mr McCue already had a row with him prior to C’s case. R’s counsel produced a faded typed letter dishonestly suggesting it as C’s witness statement on behalf of Mr McCue. C gave evidence never gave any witness statement on behalf of Mr McCue during these proceedings. The letter contains a chronology of C’s dealings with Mr Paul Borne, which he wrote 10 years ago in course of investigation of Mrs Carroll’s false complaint of sexual harassment instigated by Mr Jay. It was unprofessional on the part of R’s counsel to sue migrated documents disclosed in unrelated matter by third parties. 

(28)	R’s lack of seriousness about the discrimination can be gleaned from the simple fact Mr. Jay asked Dr Mercer to represent C and the witnesses denied (falsely) having received letters from Mr Triesman who appointed Thomson solicitors to investigate C’s complaints of discrimination against the local AUT officers. It would mean either Mr Triesman [now Lord Triesman] is not telling the truth or Dr Mercer, Mr Jay, Dr Hudson and Dr. Goldstrom.  C believes the later is more likely to be true.

(29)	Mr. Jay has completely mixed up the dates of meetings with Mrs. Carroll and took no notes of such important meeting.  He did not even retained what he claimed to have jotted down on a piece of paper. On other hand C has produced a contemporaneous letter addressed to Mr. Jay, which he has also referred in his letter of 16 March 1995 to Mr Triesman. Mr Jay does not deny categorically and the Tribunal must accept C’s version. Moreover dates become less important when there is a duty towards an already existing member.

(30)	Mr. Jay, it is submitted, presented a different attitude and approach.  For him no sympathy at all is due.  First, he washed his hands of C at the earliest opportunity because he was not prepared to be engaged in an unseemly dispute with Dr. Mercer. He was then contacted by C in relation to the matter with Mrs Carroll (the AUT’s case about the letter make no sense) but declined to respond findings Mrs Carroll, a more appealing case.  To his (dis)credit he was a moss effective advocate fro Mrs Carroll in her complaint, no matter, even if he has to fabricate a complaint from nowhere. He was well more than match for either Dr Goldstrom or Mr Everett.  He had Mrs Carroll’s dispute with C whipped up into formal action within a short time.  He was a particularly malign influence against C not only in Northern Ireland, but also because of his membership of R’s National Executive, LAC and the Tribunal.  Mr. Jay’s contribution was as poisonous as Dr Goldstrom’s.  He had equally as personal motive as Dr Goldstrom and his effort   were ultimately successful in that the progress (or non progress) of matters concerning C and Mrs Carroll was relied upon by QUB in its decision not to confirm him in post and on appeal and then deportation [ C1: 248-250 ].

(31)	The conducts of Mr. Mercer, Dr. Goldstrom and Jay (particularly with regard to the comments and letters written by them to QUB and National AUT) could not be explained except with the funny pretext to have been done in 'personal capacity', which is neither here nor there. They wrote these letters after the writers had been subject of complaint by C. Moreover the real test is their mindsets and ultimate detriment on QUB claims of discrimination in Belfast and not in London. Their conduct has hurt the claimant and it was done knowingly and with the intention to hurt him (although it not necessary to prove the intension). This is victimisation even within the four corners of the legal definition as reproduced by them.

(32)	The evidence demonstrated that the AUT leadership is completely rotten to the core. R’s only defence is based on the credibility and credibility alone. Lord Justice Sedley in Anya v University of Oxford [200] held that the credibility is not the end of the world. 

(33)	Hence, the submissions of the respondents are nothing but a repetition of their averments. They are not based on evidence on record and an irrefutable transcript of hearing will confirm this, if the Tribunal would ever provide C a copy of it.  They have not been able to substantiate their submissions on the basis of material either in oral or documentary evidence. On the other hand they have tried to play up the irrelevant things like what C said about the Tribunal or to his representative or his friend. R’s Counsel’s in cross-examination tried to discredit the Council for Ethnic Minority. When the evidence was produced he had no choice but to accept that CEM was a bona fide. Despite repeated interruptions, as a layman he was trying to present his case in the best possible way. Apart from these things being baseless and there being nothing on record, what such things have to do with the merits of the case?  Surely they want to divert the mind of the tribunal from the facts of the case and want to arouse its ego. The tribunal must free itself from such cunningness and rather draw an adverse inference against them for this conduct.

REPLY SUBMISSIONS ON BEHALF OF CLAIMANT	 CEM

Case Nos. 00218/96/FET&01789/96/SD

IN THE FAIR EMPLOYMENT TRIBUNAL

Sitting in Belfast
Between 

Suresh Deman
Claimant 

-and-

AUT & others   

Respondent

CLAIMANT’S SUBMISSIONS ON LAW
________________________________________________________________________________
Law & Legal Authorities:
1.	In summary the cause of the allegations stem from the Respondents failure to provide services and /or in the manner they provided the Union services to C because they (1) adopted a policy and practice lacking transparent and objective criteria less favourably to C; (2) operated procedure and/ or alternatively made arrangements for the provision of union services contrary to section FEA 1989 and SD 1976; (3) Victimised C because he carried out the protected acts and/or after he had made complaints of discrimination against the QUB and AUT. The Respondents’ conduct is aggravated by the collusive behaviour of the Respondents’ witnesses with QUB officers and among themselves.    

2.	The first issue for the Tribunal to decide is was there less favourable treatment to C  as compared to Mrs Carroll and/or a hypothetical  comparator of different religious persuasion and sex. Using the nomenclature of Lord Nichols in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285, we will refer to the first issue as the “less favourable treatment” issue, and the second as the “reason why” issue. 

 Direct discrimination: undisputed principles.

3.	There are certain well-established principles of this law which, whilst not controversial or in dispute in this case, have been relied upon and need to be summarised. 

4.	First, the onus now lies on the claimant merely to show less favourable treatment compared to someone of a different religion//sex/ethnic group/race/colour or nationality.

5.	Second, the discrimination need not be conscious; sometimes a person may discriminate on the grounds of inbuilt and unrecognised prejudice of which he or she is unaware what is commonly accepted as subconscious discrimination.
6.	Third, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a “significant influence” [see Lord Nichols in King v Great Britain China Centre [1992] ICR 516].

7.	Section 54A of the Act, set out above, was added by the Race Relations Act 1976 (Amendment) Regulations 2003, enacting Council Directive 2000/43/EC of 29th June 2000, which implements the principle of equal treatment between persons irrespective of their racial or ethnic origin.  The Preamble to the Directive emphasizes, amongst other things, the need to provide an effective level of protection for those who have been subject to discrimination based on racial and ethnic origin and, in this respect, to the fact at paragraph (21) that:

“The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the Respondent when evidence of such discrimination is brought.”
The Directive is said at paragraph (25) to lay down:
“Minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions.  The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.”
Article 8 dealing with the Burden of Proof provides, so far as is relevant: 
“8.1  Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the Respondent to prove that there has been no breach of the principle of equal treatment.
…
8.5   Member States need not apply paragraph 1 to proceedings which it is for the court or competent body to investigate the facts of the case.”
In relation to Article 8.5 Employment Tribunals are adversarial, not inquisitorial and paragraph 8.1 therefore applies.  
Council Directive 97/80/EC had earlier dealt with the burden of proof in cases of sex discrimination and section 63A of the Sex Discrimination Act 1975 was introduced to give effect to this Directive.  It mirrors the provisions of section 54A of the Race Relations Act.  
8.	Prior to the implementation of these European Directives, the approach adopted by Employment Tribunals in determining whether direct discrimination had occurred in any particular case, was for many years that laid down by the Court of Appeal in the case of King v. Great Britain China Centre [1991] IRLR 513; and in particular the frequently quoted passage in the judgment of Neill LJ at page 518, as follows:
“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intentioned but merely based on the assumption that ‘he or she would not have fitted in’.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but as May LJ put it in North West Thames Regional Health Authority v Noone [1988] IRLR 195, 198, ‘almost common sense’.
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

9.	The above passage was subsequently approved in Glasgow City Council v. Zafar [1998] ICR 120, by the House of Lords, who acknowledged “the special problems of proof” presented for those complaining of discrimination, “… since those who discriminate on the grounds of race or gender do not in general advertise their prejudices; indeed they may not even be aware of them”. (See the speech of Lord Browne-Wilkinson at page 125C).  They emphasized, however, that Employment Tribunals were not bound as a matter of law to draw the inference that there was less favourable treatment on racial grounds where an employer had acted unreasonably and had offered no or no satisfactory explanation for such treatment. Rather, Tribunals had a discretion in deciding whether to draw such inferences, and in drawing such inferences as they considered proper from their findings of primary fact on the evidence.  
10.	In a number of other cases, decided prior to the legislative changes, the Appellate Courts have made further observations on the correct approach to be adopted by Tribunals in this area, having regard to the particular factual matrix before them; see, for example, Anya v. University of Oxford [2001] ICR 1205 CA and The Law Society v. Bahl [2003] IRLR 640 EAT.
11.	There is no doubt that section 54A and section 63A of the respective Acts introduced a new approach to determining complaints of direct discrimination, which meant that the King guidelines required adjustment, as this Appeal Tribunal recognised in the case of Barton.  
12.	Pursuant to section 54A the first stage of the process is for the Tribunal, having heard all the evidence, to determine the primary facts proved by the applicant, in order to see what inferences, or secondary facts, could be drawn from them, from which they could conclude that an unlawful act of racial discrimination had been committed, absent any explanation from the employers.  Such inferences could include, for example, inferences, which can legitimately be drawn from an employer’s evasive or equivocal replies to a questionnaire, pursuant to section 65(2)(b) of the Act.  
13.	This does not mean, in our view, that in a case involving alleged race discrimination, it will be sufficient at this first stage for an applicant who is black simply to show, for example, that a white comparator was promoted to a post for which he had applied.  In view of the “like for like” requirement in section 3(4) and the need for the relevant circumstances in the applicant’s case to be the same or not materially different in the case of the comparator, the applicant in such a case would have to show not only that he met the stated qualifications for promotion to the post, but that he was as least as well qualified as the successful candidate.  The relevant information as to the successful candidate’s qualifications could be obtained in the usual way, through correspondence or using the questionnaire procedure.  
14.	On such facts, assuming that the applicant could show this to be the case, an Employment Tribunal could conclude that an act of racial discrimination had been committed, absent any explanation from the employers as to why they had promoted the white candidate.  The important word in the section is “could”.  At this first stage the Tribunal has only to conclude that the facts found could lead them to the conclusion that there had been unlawful discrimination. 
15.	If the Tribunal has made this determination they proceed to the second stage, when the burden of proof will move to the respondent employer to prove on the balance of probabilities that he did not commit or, as the case may be, is not to be treated as having committed the act of unlawful discrimination.  If the Tribunal find that this burden is not discharged, they “shall”, i.e. must find that the respondent has unlawfully discriminated against the applicant.  This, in our view, represents a significant change from the previous approach established in the cases of King and Zafar.  The discretion afforded to a Tribunal to draw an inference that an employer had unlawfully discriminated on grounds of sex or race only if they considered it legitimate in all the circumstances to do so, having regard to the primary facts, has now gone.  If the employer fails to discharge the burden of proof placed upon him at this second stage, the Tribunal are compelled by statute to uphold the complaint that he has discriminated.
16.	They also directed themselves as to the guidance given recently by this Appeal Tribunal in the sex discrimination case of Barton v. Investec Henderson Crosthwaite Securities Limited [2003] ICR 1205, following similar legislative amendments to the Sex Discrimination Act 1975 dealing with the burden of proof, on how Tribunals should now approach the determination of claims of direct discrimination, as follows:
“'We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:
(1) Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part 11 or which by virtue of s.41 or 42 SDA is to be treated as having been committed against the applicant. These are referred to below as “such facts”.
(2) If the applicant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex. Discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
(4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word is “could”. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.
(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.
(7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(8) Where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.
(1I) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(I2) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.’”

17.	It is common ground that the Tribunal accurately set out the relevant statutory provisions and the relevant dicta in the Barton case.  Mr. Linden’s main challenge on behalf of the Appellants proceeds on the basis: (a) that the Tribunal followed the Barton guidelines so slavishly that they lost sight of the central question they had to decide in this case, namely whether the Appellants had treated this Applicant less favourably on racial grounds; and (b) that the guidelines given by this Appeal Tribunal in Barton are unhelpful and incorrect in a number of respects; and they create the risk that a Tribunal, in seeking to apply them, will become distracted from their task of deciding that “central question” in each case.  
18	Returning then to the factual example referred to above, if the employers in that case can show on the evidence that a transparent selection system, fairly carried out, resulted in a decision to promote the white candidate to the job for valid, non-discriminatory reasons, they will have discharged the burden placed upon them of proving on the balance of probabilities that they did not discriminate against the Applicant on racial grounds.  If, however, the employer’s explanation is, for example, that the Applicant was regarded as someone who would “not fit in” to a department where the entire workforce is white, or if the selection system in place is wholly lacking in transparency and either no or no adequate, non-discriminatory explanation for promoting the white candidate is shown, it is likely that the employer will be found not to have discharged the burden of proof upon him and the Tribunal shall then uphold the complaint that unlawful discrimination has occurred.  Inevitably, the outcome in individual cases will turn on their own particular facts and on the evidence called, both by the Applicant, who must prove the primary facts and by the employers who, if a prima facie case is shown, will find themselves having to prove that they did not discriminate on grounds of sex or race.  
19.	There is, in our view, a tension to be detected in the previous case law, where these issues have arisen, between the need to recognise and address the special problems of proof for victims of discrimination, in particular when the discriminators might not themselves be aware that they have discriminated, and the need to avoid the non-discriminating but incompetent or unreasonable employer being wrongly labelled with the stigma of having committed an act of race or sex discrimination.  This tension has been addressed, in our judgment, by the legislative reversal of the burden of proof, which now places firmly upon an employer the burden of proving to the civil standard that he has not unlawfully discriminated against an employee when, on the facts found, a Tribunal could conclude that he had; and when, if he fails to discharge that burden, a Tribunal must conclude that he has.  The statutory amendments clearly reflect the European emphasis on effective protection for those who are the victims of discrimination, and the need for the principle of equal treatment to be applied effectively. Whilst they demonstrate a significant change of approach however, the combined experience of all the members of this Appeal Tribunal suggests that they will not result in the placing of an unduly onerous burden on employers who have in place appropriate and transparent workplace systems and practices; and who conduct their businesses in accordance with what are now well accepted and established equal opportunities policies and procedures.  
19	It will make no difference to the Tribunal’s approach, in our view, where, as here, the Complainant also has an unfair dismissal claim and where the employers therefore call their evidence first, dismissal not being in dispute.  The primary facts will clearly be relevant to both complaints and, with the effective case management now being practised by Tribunals including the exchange of witness statements and appropriate orders for disclosure, the Tribunal will, by the date of the hearing, be well aware of the issues to be decided and the burdens of proof imposed on the parties by the different legislative provisions. 
20	The guidance given by the EAT in Barton has since been the subject of comment in further decisions of this Appeal Tribunal, to which we must now refer.  In University of Huddersfield v. Wolff [2004] IRLR 534, the EAT (Burton P. presiding) referred to the “very helpful” decision in Barton and adopted the guidance there set out.  In upholding the applicant’s complaint of sex discrimination an Employment Tribunal had concluded: “We are applying the statutory provisions and we do so in the light of the fact that once we have determined that there is an ostensible act of discrimination in that the Applicant has been less favourably treated and there is a difference in sex, we are required to look at the explanation given by the Respondent.  We are required to uphold her complaint unless we are satisfied on the basis of the explanation that the Respondent proves that it did not commit the act complained of”.  This was held, rightly in our view, to be a mis-direction and the tribunal were held to have erred in finding that the burden of proof had transferred to the employers.  The tribunal had not concluded, in accordance with section 63A of the 1975 Act, that the Applicant had proved facts from which inferences could be drawn that the employers had treated the Applicant less favourably on the grounds of sex.  At paragraph 28 of the judgment the EAT said:
“Once the burden is reversed, of course, the burden falls upon the Respondent in the manner described … in Barton and the explanations have to be looked at.  It is the more important that there be appropriate findings on the basis of which the prima facie case of less favourable treatment on the grounds of sex is made and, of course, above all that there is such a prima facie finding, because it is only once there is such a finding that the Respondent knows, and thus the Tribunal knows, what the Respondent has to justify.”

21.	Subsequently, in Chamberlin Solicitors v. Emokpae [2004] IRLR 592, the EAT (Judge McMullen QC presiding) dismissed an appeal from an Employment Tribunal’s decision in favour of an applicant on sex discrimination.  They decided that Barton remained good law, subject to their comments in relation to guidelines (10) and (12), where they said this, at paragraphs 32 to 38:
“32
…..We take, first, the criticism of the passage in guideline (10), which is founded on the Burden of Proof Directive. It was submitted by Mr Purchase that the tribunal had misconstrued the use of the words 'no discrimination whatsoever' in the Directive: that phrase does not concern the definition of, or the ingredients in, discrimination, but merely the forms of discrimination. We accept that submission. Where the phrase appears both in the Burden of Proof Directive and in the Equal Treatment Directive, it is followed by the words 'either directly or indirectly' which are words qualifying the term 'discrimination.'
33
The EAT in Barton appears to have been led to its conclusion by consideration of Article 2(1) of the Burden of Proof Directive (97/80/EC) which provides as follows:
'For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly.'
34
That formulation of the principle of equal treatment derives from the Equal Treatment Directive (Directive 76/207/EEC), Article 2(1) where the phrase 'no discrimination whatsoever on grounds of sex ...' first appears. Prior to the change in the burden of proof, pursuant to the Burden of Proof Directive and s.63A, it had already been decided in Nagarajan that there may be a range of causes contributing to discrimination, for Lord Nichols said as follows:
'decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.'
35
When transposing the Burden of Proof Directive into s.63A of the Sex Discrimination Act, Parliament did not intend to change the forms or the definitions of discrimination. The change in the burden of proof in direct discrimination, at least, is designed to remove some of the obstacles in the way of applicants. In the 1976 Directive the forms are direct and indirect (Article 2), and victimization (Article 7). In the Act, they include discriminatory practices, instructing and pressurizing others to discriminate, aiding discrimination and constructive and vicarious liability for others' discrimination (ss.37-42). Directive 2002/73 amends the 1976 Directive. In it, the forms and definitions include harassment, sexual harassment and instructions to discriminate. It must be transposed into our law by 5 October 2005. In both the earlier Directives where the word 'discrimination' appears, it means any form of discrimination, direct or indirect, and (by reference to Article 7) victimization. Thus sex discrimination in all its forms is unlawful.
36 
Where the respondent produces no adequate explanation for facts which the applicant has proved could amount to discrimination, the burden is transferred to the respondent of proving that it did not commit, or is not to be treated as committing, the act of discrimination. If it fails, it is taken to have 'committed an act of discrimination'. As we have pointed out, since the House of Lords decided Nagarajan, discrimination is unlawful if gender has a significant influence on the decision.
37
Although considering race discrimination, the authorities cited by Lord Nichols were based on sex discrimination. Given that there should be no difference in treatment of the same statutory language, it follows that for the purposes of sex discrimination, less favourable treatment is unlawful only if gender has a significant influence on the decision. So if it is a very small factor amongst a large number of predominant factors, it will not be a reason for the treatment. The principle of equal treatment in the Equal Treatment Directive applied in the Burden of Proof Directive does not require the eradication altogether of gender in a decision making process, merely its downgrading. In such a case, there will be 'no discrimination whatsoever' because gender had no significant influence on the decision. 
38
We do not consider the EAT in Barton was saying that that account of the law was changed to require the respondent to show gender had no effect whatsoever in the decision. Nagarajan was cited in the skeleton arguments and is anyway the leading authority well known to the EAT. It was not distinguished. In order to make this clear, for we accept there may be misunderstanding, we respectfully suggest that guideline (10) in Barton should be adjusted to read as follows:
'To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined in Nagarajan v London Regional Transport [1999] IRLR 572, by grounds of sex.'

Further, in relation to guideline (12) the EAT stated as follows at paragraph 40:
“40
We are also asked to consider guideline (12) which requires 'cogent evidence' to be adduced by a respondent shouldering the transferred burden, once a prima facie case has been made out by the applicant. The EAT in Barton justified this expression on the basis that the material facts necessary to prove this would be in the hands of the respondent. 'Cogent' means forceful or persuasive. Guideline (12) is the correct statement of the law, if we may respectfully say so, and so is the justification. Facts and arguments, which are forceful and persuasive, will discharge a burden of proof. The cogency of the evidence required depends on the standard of proof the law requires, and the nature of the allegation made. Lord Nichols in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563, 586 (a case not cited to us but upon which our judgment does not depend) approved as neatly expressed the proposition that 'the more serious the allegation, the more cogent the evidence required ... to prove it.' In discrimination, the (civil) standard is the balance of probability. Within that standard, the more unlikely the allegation, the more cogent must be the evidence to discharge the civil burden of proof. Once the burden has shifted, if the facts and explanation are not persuasive, the respondent will not discharge it. The respondent must prove its case on the balance of probability. To do so, it will produce evidence, which persuades the industrial jury to find for it. It is entirely appropriate, supported by high authority, to describe that evidence as 'cogent'.”

22.	In the case of Sinclair Roche & Temperley v. Heard [2004] IRLR 767, the EAT (Burton P. presiding) considered Barton again and said as follows at paragraphs 10 and 14, which we agree indicate the correct approach to be taken by tribunals in deciding these issues:
“10	611, 4370
The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02, and Chamberlin Solicitors v Emokpae [2004] IRLR 592 EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can understand what it is that it has to explain. It then explains, if it can. Such explanations, if any, must be fully considered and:
(i) It may be, either obviously or after analysis, that there is no explanation.
(ii) There may be an explanation, which only confirms the existence of discrimination.
(iii) There may be a non-discriminatory explanation, which redounds to its discredit - e.g. it always behaves this badly to everyone.
(iv) There may be a non-discriminatory explanation, which is wholly admirable.
But the employment tribunal must address the respondent's response.

…
14      In Wolff I said as follows:
‘26. [The tribunal] must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfies them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. ...
31. ...The reasons ... would ordinarily then be set out as to why the tribunal rejects the explanations and justifications put forward by the employer and concludes that the burden of proof has thus not been satisfactorily complied with, and thus that the only answer is that which was prima facie already found to exist when it transferred the burden under s.63A [of the 1975 Act] ...
23.	... We are satisfied that the failures by the tribunal to consider, set out and draw conclusions from the material facts related both to the establishment of the prima facie case, under s.63A, which was necessary even before the onus passed, and, even assuming it did correctly apply s.63A, to the consideration of the respondent's explanations after the passage of the onus.’”

24.	Since the Barton guidelines the Court of Appeal hears 3 test cases on burden of proof 

The Court of Appeal has, this afternoon, handed down judgment in the three test cases on the newly introduced shifting burden of proof in discrimination claims.

The Court has issued 'revised Barton guidelines' (as an annex to the decision).

The three key points arising from the judgment are:

(1) When deciding whether the complainant has proven facts from which the tribunal COULD conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination, it is IMPERMISSIBLE to take into account the employer's explanation at that stage. The employer's explanation only engages at stage 2, i.e. whether it proves it did not commit an act of discrimination (paras. 21-22)

(2) The case of Webster v Brunel University (see bulletin 14/1/05) should be overturned. The burden of proof does not shift just because somebody at the other end of the telephone says the word 'Paki', and that COULD have been an employee of the Respondent. The Claimant must still prove that the alleged discriminator has treated him/her less favourably (paras. 25-29).

(3) Paragraph 10 of the Barton guidelines, which requires the employer to show that its conduct was "in no sense whatsoever" on grounds of sex, race or disability, is correct. A later decision of the EAT amending paragraph 10, lowering the test to "not significantly influenced by", is wrong.

Nagarajan v London Regional Transport [2001] 1 AC 501 at 513.

25.	Fourth, as of 19th April 2003, the onus of disproving discrimination, is now squarely on the Respondents.

26.	The Tribunal should remind itself at all times in assessing the evidence that direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.  Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. See observations made by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] ICR 337 at para134.  

27.	Fifth, in deciding whether there is discrimination, the tribunal must consider the totality of the facts; see the observations of Mummery J giving the judgment of the EAT in Qureshi v Victoria University of Manchester, [2001] ICR 863, which were followed by the Court of Appeal in Anya v University of Oxford [2002] ICR [2001] EWCA Civ 405.   

28.	Where there is a finding of less favourable treatment, a tribunal may infer that discrimination was on the proscribe grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments of Neill LJ in King v Great Britain-China Centre [1992] ICR 516, approved by the House of Lords in Glasgow City Council v Zafar [1998] ICR 12  (Neill LJ in fact said that the inference may be made where the explanation was inadequate or unsatisfactory).

29.	Fifth, it is clear from the structure of the statutory provisions that the need to identify a detriment is in addition to finding less favourable treatment on the prohibited ground.  In many cases the detriment will be obvious, such as where someone alleges that he or she has been refused a job or promotion for unlawfully discriminatory reasons. Indeed, in most cases the fact that there is less favourable treatment will strongly suggest that there is a detriment.  

30.	The test for establishing detriment is in general easily met.  It was defined by Lord Hope in the Shamoon case as follows (para 35):

“As [Lord Brightman] put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence.”

31.	Lord Scott in the same case emphasised that the question whether or not a detriment exists must be looked at from the victim’s point of view.  He added that, “while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute “detriment”, a justified and reasonable sense of grievance about the decision may well do so.” (para 105).  Tribunal heard (and saw documentary) evidence from the witnesses and inadequacies of procedures and absence of any shortlisting comments and notes when assessed les favourably.

32.	The important decision of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120, said this (pages124A-E):

“The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances…. ”

33.	It is submitted that the analysis in Zafar should now be read together with certain comments of Sedley LJ in Anya v University of Oxford, a case to which we have made reference above.   In that case Dr. Anya was a black Nigerian academic who alleged that he had been discriminated against on grounds of race when he applied for the post as a postdoctoral research assistant.  The employment tribunal found that there was no less favourable treatment and the Employment Appeal Tribunal dismissed the employee’s appeal.   But the Court of Appeal upheld his appeal on the grounds that the tribunal had failed to make relevant findings of fact, which it was obliged to make before reaching its determination.   

34.	In the course of giving his judgment, Sedley LJ said this by way of an obiter observation: 

“His case was that the evidence showed two critical things.   One was the preconceived hostility to him: this depended on matters of fact, which it was for the industrial tribunal to ascertain or refute on the evidence placed before them.   The other was a racial bias against him evidenced by such hostility: this was a matter of inference for the industrial tribunal if and in so far as it found the hostility established.   Experience shows that the relationship between the two may be subtle.   For example, a tribunal of fact may be readier to infer a racial motive for hostility, which has been denied, but which it finds established than for hostility, which has been admitted but acceptably explained.   The industrial tribunal in paragraph 5 of its reasons directed itself correctly in law about this, with one arguable exception: it concluded the paragraph with this remark:	

“If an employer behaves unreasonably towards a black employee, it ought not to be inferred, without more, that the reason for this is attributable to the employee’s colour; the employer might very well behave in a similarly unreasonable fashion to a white employee.”

As Neill LJ pointed out in King, such hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the industrial tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races, but on evidence that he does.”

35.		Equally the mere assertion by an employer (what is known as bastard defence in jurisprudence-A Barrister’s view from Matrix Chamber’s) that he would treat others in the same manifestly unreasonable way but with no evidence that he has in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.

36.	Respondents’ and their witnesses’ Credibility

36.1.1	It should be said at the outset that the Respondents’ and their witnesses’ Credibility have always been and is in issue.  

36.1.2	In this respect the Tribunal is specifically referred to the cases of Badewa v Circle Thirty Three Housing Trust Ltd (EAT/232/95 21.5.97: Morrison J (President), applying King [1992] ICR 516, as to the judicial method required when determining credibility of Respondents in races cases. 

37. 	FEC/EOC/CRE’S CODE OF CONDUCT FOR TUs/IN EMPLOYMENT:

37.1.1	Both in their failure to Replies to FE/SD Questionnaire and in their oral evidence the Respondents showed they had failed to follow or apply the FEC Code of Practice  (see, for race cases, Qureshi v London Borough of Newham CA ; Ali v Pindersfield Hospital NHS Trust; Richards v Brighton B.C (20/5/92 case no. 14213/91 . Section 47(10) RRA 1976.

37.1.2	The Tribunal is now referred to section sec 7(5) of FEA and 47(1) RRA 1976, which states that a failure on the part of any person to observe any provision of Code shall be admissible in evidence and if the provision appears to be relevant to any question arising in the proceedings, the tribunal shall take it into account in determining that question. In this respect the Tribunal is referred to the decision of Morrison J (President, as he was then) in Ali v Pindersfields Hospital NHS Trust (EAT/184/87 –22.5.97).

37.1.3	Those providing Union services were either wholly ignorant of or reckless as to complying with the most basic requirements of the FEC Code of Practice and of the Requirements of the CRE’s Code on equal opportunities in Employment.and/or for TUs.

37.1.4	The Respondents have failed to follow the FEC/CRE’s Code in failing to monitor ethnicity. The Tribunal is expressly invited to consider the possibility of discrimination and draw an adverse inferences from the Respondents’ failure apply or follow the FEC guidance on promoting Equal Opportunities Policy and Procedure for TUs.

37.1.5	At this point it is submitted that the Tribunal is required to examine very carefully the process by which the QUB local AUT and its agents provided services and handled C’s cases of discrimination. The Tribunal is referred to paragraph 15 of BRITISH GAS TRADING LIMITED and ALAN BURKEY v AARON CLARKE, Appeal No: EAT/1367/99 which state: 
“ Without carefully chosen selection criteria, there is always a danger of both direct and indirect discrimination."
37.1.6	We also refer the Tribunal to paragraph 29 of the above case where the EAT said: “a case such as the present, where what is involved is a comparative assessment of the paper qualifications of a relatively small number of candidates, we see no reason at all why the Tribunal should not be able to assess whether or not [the Applicant’s] qualifications were objectively at least as good as other candidates of a different racial group who were selected for interview, as was done for example in King v Great Britain-China Centre, above, at p 529D”

37.1.7	The treatment C received was a classic example of "institutional racism", which is defined as: 
… the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. (MacMacpherson Report)
38.	Lack of Transparency and Burden of proof (the DANFOSS Principle)& 

38.1	It is for the R to show, not only they operated a fair and transparent procedure for provision of Union services and but have also applied it fairly, not based on religion/sex/ace – directly and indirectly. The Respondents are not able to do this. See Danfoss (Handels-OG Kontorfunktonaerei Nes Forbund I Danmark v Dansk Arbejdsgiverforening)[1989] IRLR 532 at paras. 597 (10), 598 (20) applying  Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317, which held that where a worker (or party) establishes a prima facie case which points to discrimination, it is for the employer to show that his practice was objectively justified on factors which had nothing to do with sex. We submit that, if the Tribunal is to act without itself discriminating against applicants in race cases, it must adopt the same approach, as it is bound to do in sex discrimination cases, more so since the coming into force of Article 6.1 ECHR into English law. 

38.2	The EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 has given guidance on how the burden of proof should be approached since the introduction of s.63A. 
•	The applicant must prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of unlawful discrimination or is to be treated as having committed such an act. This will usually depend on what inferences of discrimination can be drawn from the primary facts found.
•	Where the applicant has discharged this burden, the burden then moves to the respondent to prove that he did not discriminate on the ground of sex or is not to be treated as having committed that act. 
•	The respondent must prove, on the balance of probabilities, that his treatment of the applicant was "in no sense whatsoever on the ground of sex". 
•	The respondent must provide an adequate explanation to prove that sex was no part of the reasons for the treatment and, since the respondent would normally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden. 
•	In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or any code of practice.
38.3	Indeed and in any event since the coming into force of Regulations Race Relations (Amendment) Act Regulations 2003 SI 2003/1626 the burden in both sex and race complaints is on the Respondents. Those Regulations introduced a new section 54A in the RRA 1976, the effect of which is to reverse the burden of proof (shifting it to the Respondents).  Same standards would apply to the Fair Employment/SD cases.

38.4	The burden of proof is therefore squarely on the Respondents to disprove discrimination once C establishes less favourable treatment compared to someone of a different religious persuasion and gender.

38.5	The Respondents operated a process, which was discriminatory, or potentially discriminatory in that it lacked transparency or the degree of transparency required. It is fair to say, that the QUB local AUT process and procedures as a whole was totally rotten to the Core and was a fraud, a myth, a fiction, pretence, artificial, a cloak, a simulacram and a hollow sham.  As Ernest Barker puts it, “the law does not write fiction”. Nor should this Tribunal.

39.	 VICTIMISATION UNDER SECTION 2(1)(A) RRA 1976

39.1	House of Lords decision in Nagarajan v London Regional Transport (1999) 3 WLR 425, whereby it was held that conscious motivation was irrelevant to racial discrimination cases.

39.2	Weight must been given to C’s complaints of discrimination and victimisation pre-dating the final LAC’s decision on 15 April 1996 and thereafter ; and the Tribunal must apply the “but for test” (Eke v Commissioners of Customs and Excise [1981] IRLR 344 EAT; Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487; Anaya Oxford University 23 March 2001 Court of Appeal; and section 2(1)).

39.3	In Chatopadhya v The Headmaster of Holloway School, EAT [1981] IRLR 487, it was held.

“There is no relevant distinction between hostility before the event and hostility after the event.  The evidence of such hostility is admitted with a view to showing that the person involved was treating the Applicant differently from other people, whether he was animated by racial considerations or not.  In either case, it calls for an answer.”

“If the Applicant could establish (a) that a relevant person had behaved in a hostile way and (b) that such hostility was racialist, this would have a probative value in establishing that that person had racialist motives when the decision complained of was taken.  Both (a) and (b) are relevant facts in making the case sought to be made.  It was not legitimate to exclude fact “(a)”, if it is a fact which calls for an explanation, in the absence of proof of facts “(b)”, racialist intent, if fact “(a)” is such that from it the intent could be inferred.”

	Lord Justice Slade in Aziz v Trinity Street Taxis Ltd & ors, 1998 IRLR 204 said: 

“the treatment applied to by the alleged discriminator had to be compared with the treatment that was applied, or would be applied to persons who have not done the relevant protected act.”  

40.	DETRIMENT

Most discrimination, if not all, will amount to a detriment to the complainant. A detriment under section 4(1)(a) RRA means no more than a “disadvantage” and in determining in a particular case whiter the act complained of amounts to a detriment the Tribunal should ask itself whether it is such that a reasonable applicant could justify complaining about the treatment, handling or assessment of his/her job application (in this particular case at the shortlisting/appointment stages). It is trite law that the detriment need not be significant. Sam law would apply under the FEA. 

41.	Need for Comparison – Direct Discrimination

41.1	The relevant circumstances in the case must be the same or not materially different from those in the other (i.e. like must be compared with like, but this does not mean we require a clone).

42. 	But for test

42.1	The question is was C would have been treated in the same way but for his race. James v Eastleigh BC.[1990] 3WLR 55; see also Geliot Whitman ltd v J O’Dongohue EAT 23/11/2000.   However, subsequently law has developed in Chief Constable v Khan [2001] IRLR 830.

42.2	As already submitted there need not be only one reason; there may be mixed reasons.
The Tribunal needs to make comparisons in order to carry out the three-stage test for direct discrimination as required by section 3(4) RRA 1976 (see particularly, Stenning v Jarman and London Borough of Hackney (EAT/1288/99); Marks and Spencer v Martins; Glasgow City Council v Zafar; King)

42.3	This is not just otiose, it is essential if the two stage test or any test is to be carried out as approved in Glasgow City Council v Zafar; King and in Martins v Marks & Spencer. The test requires a finding as to (a) less favourable treatment and (b) that such treatment was or was likely to be on racial grounds. 

43.	“On Religious & Sex  grounds"
43.1	It is obligatory that the Tribunal identify C’s perceived religious persuasion and gender before it considers the claim for direct discrimination.

44.	"Less favourable treatment"

44.1	Under this limb the Tribunal is required to make the "compulsory comparison", referred, as confirmed in Marks and Spencer v Martins at p. 1019C, which require the Tribunal to compare the treatment of C with the treatment of Union member of a different religious persuasion and sex, of like or not too similar circumstances. 

44.2	Glasgow City Council v Zafar [1998] ICR 120 is authority for the submission that the test of less favourable treatment in direct discrimination has to limbs. The test is outline by Lord Browne-Wilkinson at pg 124A to 124C: 
"Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts-(a) less favourable treatment and (b) racial grounds ...."

44.3	This approach was endorsed by Mummery LJ in Martins v Marks & Spencer [1998] ICR 1005, giving the judgment of the Court, 1019A to D he said:

“The answer to this question requires a comparison to be made between the treatment of the applicant and the treatment of a 27-year-old applicant of a different racial group with similar experience and qualifications applying for the same job.”

“The industrial tribunal made a fundamental error of law in asking itself and in answering the wrong question, a different question from that required by the 1976 Act”. 

44.4	In a case such as the present, where what is involved is a comparative assessment of the paper qualifications of a relatively small number of candidates, there is no reason at all why the Tribunal should not be able to assess whether or not the Applicant’s qualifications were objectively at least as good as other candidates of a different racial group who were selected for interview, as was done for example in King v Great Britain-China Centre.

44.5	The House of Lords in Glasgow City Council v Zafar [1998] ICR 120, at 126B At page 529G Neill LJ laid down the following guidelines:

"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of  …. common sense…. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts." [Emphasis mine]

44.6	House of Lords in Zaffar v Glasgow Council [1997] IRLR 229 (on 27 November 1997, also  says:- 

“That if the Tribunal considered the explanation to be inadequate or unsatisfactory it will be legitimate for it to infer that the discrimination was on racial grounds, should in future be applied in discrimination cases of race or sex discrimination”; and 

“where the facts indicate conduct on the part of the employer, relevant to the circumstances of the case, in respect of which it is appropriate to criticise the employer, and to characterise what is being done as unfair or incompetent or otherwise questionable, it is nevertheless still a question to be properly considered and answered whether the inference of discriminatory treatment should be drawn.”  

44.7	The case of Stenning v Jarman and LB of Hackney 9EAT/1288/99 – 17.11.2000) is instructive in that it not only reaffirms Zafar but also makes it clear that “in order to be confident of covering all the essential issues in a race case the tribunal should embark on a three-stage enquiry”.

45.	Motive is irrelevant

45.1	The is a long line of cases, including two HL cases, from which it is now well established, that motive is not a necessary condition to a finding of discrimination (see R v Birmingham City Council ex parte EOC [1989] IRLR 173 HL; James v Eastleigh B.C. [1990] 288 HL.

45.2	Nor is motive relevant in victimisation (see Swiggs and Others V Nagarajan (A.P.) [1999] 15 July HL, pg 4, 5, 6, 7, 13, 15-17. 

46.	INFERING DISCRIMIANTION

Race Discrimination: Odenore v Associated Nursing Homes Ltd. 

46.1	The Employment Appeal Tribunal, Judge: Judge Peter Clark, 14 May 2003, the EAT ruled that, having failed to make all necessary findings on the comparative incidents relied on by the employee, the tribunal had not been in a position to decide whether any adverse inference should be drawn on the strength of the incidents cumulatively. Therefore it is necessary for this Tribunal to make findings on all the comparative incidents relied on by C.

46.2	Rene v St John Ambulance Ltd, citing: Anya v University of Oxford, the Employment Appeal Tribunal, Judge Prophet, 1 May 2003, held that, It was the job of the employment tribunal not simply to set out the relevant evidential issues, but also to follow them through to a reasoned conclusion except to the extent that they became otiose. 

46.3	C also contents that there is institutional discrimination or a discriminatory regime or alternatively discrimination over extended period of time in the Respondent organisation. The tribunal is invited to draw an inference of discrimination (West Midlands passenger Transport v J. Singh [1988] IRLR 186, CA; Webster v Kirklees Metropolitan Council).

46.4	The Tribunal is also required to make sufficient findings/investigate all the facts, or details of historical allegations of less favourable treatment by the Respondents and their witnesses to enable them to be in a position to draw inferences as to the significance of or the value of such past treatment as evidence of later discrimination (Anaya Oxford University (ibid).

46.5	Other matters include:

1.	The Tribunal has agreed that it above findings as to conduct of Respondents would be taking into consideration in making a decision on merit.  They should do so.
2.	Lack of transparency; where a disproportionate number of non-Christian/female/white people are members in the Union and much larger proportion of those received union services. 
3.	Failing to operate, follow or monitor their EO Policy.
4.	Lies or inconsistencies in evidence
5.	Absence of replies to FE28/SD questionnaires and during cross-examination.
6.	Having to be ordered to give answers to questionnaires in cross-examination and produce documents by the ET.
7.	Looking at the Respondent’s behaviour in the round, 
8.	Failure to follow FEC Code, even though fully aware of Code and attending Equal Opportunity Training 
9.	Admitted failure to even read CRE’s Code at the time of or in preparation for shortlisting exercise.
10.	It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few respondents will be prepared to admit such discrimination even to themselves. In some case she discrimination will not be ill-intended but based merely on assumptions that “he or she would not fit in” 
11.	The usual judicial method of assessing witness credibility be looking at demeanour forth-right denials etc is not appropriate

47.	Aggravating features

It is submitted that the conduct of the Respondents is aggravating in view of equality and human dignity, but instead has violated C’s human dignity as a person of minority religious persuasion and has paid only lip service to the concept of Equal Opportunities both towards its own members (as evident from the large number of complaints over the years) and towards C..

47.1	The Employment Appeal Tribunal has recently decided in the case of Zaiwalla & Co v Walia that an employer can be ordered to pay aggravated damages if they behave unreasonably when defending a discrimination claim.
  
48.	In Summary

The Tribunal is asked to consider five questions while recognising once the applicant established a prima-facie case the burden is shifted upon the Respondents to show they have not discriminated:

(i) whether, C was less favourably treated than the white /other race candidates and, if so, how?

(ii) whether, if less favourable treatment was established, the difference was due to race?; and 

(iii) whether, if less favourable treatment was established, the difference was due to C having done protected acts?

(iv)	whether, the Respondents had knowledge of C’s protected acts?, and if so, was there any causal link (consciously or unconsciously) to his failure to provide him union services at par with Mrs Carroll? 

(v)	whether the Respondents have provided a satisfactory explanation taking to accounting their credibility and the way gave evidence.

The relevant law, which is not controversial, can be summarised as follows:
1.	It is rare for there to be direct evidence of discrimination. In appropriate cases, therefore, tribunals are entitled to draw inferences of discrimination (or victimisation);
2.	It is important, before inferences are drawn, that the primary facts are found: Anya v University of Oxford [2001] EWCA Civil 405; [2001] ICR 847 (CA), Qureshi v Victoria University of Manchester [2001] ICR 863, citing the CA in Chapman v Simon [1994] IRLR 129, at para 43, and at para 10, 855E;
3.	When determining a complaint of discrimination, which involves a number of incidents, the tribunal should not just consider the incidents in isolation, but should look at the totality of the evidence: Anya at 854E-855B. 
4.	The Applicant summits that the overwhelming direct evidence before the Tribunal and/or alternatively the inferences to be drawn from the surrounding circumstances, lies, inconsistent evidence, inconsistent replies to questionnaires, failure to carry out ethnic monitoring of applicants across the University, failure to train or to see the need to train shortlisting staff, failure to adopt or follow or appreciate the importance of the CRE’s Code requires or permits the Tribunal to answers all three of the above questions in affirmative.  In particular the Tribunal is required to make the "compulsory comparison", referred to in Marks and Spencer v Martins [1998] ICR 1005 at p 1019C.
5.	In this case, the "less favourable treatment" required by the Act is the fact that Mr Deman was not short-listed/appointed, when a white candidates whose application showed they did not meet the Person Specification in greater depth than Mr Deman.
6.	The Tribunal is asked to prefer the evidence of the Applicant or alternatively, to find that there is no discrimination or victimisation but gave no cogent reasons except denying that they did not discriminate or victimise the applicant. 
7.	As such the Respondents did not afford Mr Deman the same opportunity to compete for the post. Why? The Tribunal is reminded that he who asserts must prove. It is for the Respondents to prove their assertion(s) in order to disprove discrimination.
8.	The principles to be applied in interpreting the relevant sections of the 1976 Act have been discussed, notably, in the three leading cases, King v Great Britain-China Centre, Glasgow City Council v Zafar and Marks & Spencer v Martins.
9.	11. In King v Great Britain-China Centre [1992] ICR 516, the applicant, an ethnic Chinese, had applied for a more senior post with her employer, a body established to promote better understanding between the United Kingdom and China, but had not been interviewed. The tribunal found that she had been discriminated against on racial grounds, primarily on the basis that the applicant's paper qualifications matched the job specification, that she had been treated less favourably than at least two of the candidates called for interview, and that the employer had proved no satisfactory explanation of her treatment: see [1992] ICR at 529D. At page 529G Neill LJ laid down the following guidelines, which have since been approved by the House of Lords in Glasgow City Council v Zafar [1998] ICR 120. 
10.	In Brighton Borough Council and Bishop v Richard [ EAT 431/92] it was said that the employment tribunal was entitled to take into account the council's failure to monitor.  Noting that the CRE Code of Practice recommends that "employer should regularly monitor the effects of selection decisions and personnel practices and procedures in order to assess whether equal opportunities is being achieved", the EAT said: "discover whether they are practising what the preach."  This approach was reaffirmed in Anya, by making reference to guidelines under head (4) of Niell LJ in King.
11.	Lord Justice Slade in Aziz v Trinity Street Taxis Ltd & ors, 1998 IRLR 204 said: 
“the treatment applied to by the alleged discriminator had to be compared with the treatment that was applied, or would be applied to persons who have not done the relevant protected act.”  
12.	The Northern Ireland Court of Appeal, in the case of Dornan -v- Belfast City Council [1990] IRLR 179, the Court of Appeal made it clear that the employer who seeks to show an innocent explanation for what has occurred must demonstrate this to the satisfaction of the tribunal - so that it is not enough merely to advance some other credible basis for the action.  Harvey's [ibid] states:-
"... there is no doubt that the direction of these recent cases is favourable to those who complain of discrimination..."
13.	The burden of proof, which has been gradually shifting over to Respondents has now been fully transferred by Parliament. The Respondents have not discharged this burden.
14.	In a recent decision of the EAT in Barton v Investec HHJ Ansell has very clearly set out how Employment Tribunal should decide cases in wake of Section 54A of Race Relations Act 1976.

On behalf of Claimant 						10 January