Tribunal sets aside MMU racism decision

November 2, 2007

An employment tribunal that found that Manchester Metropolitan University had racially discriminated against a lecturer - even though he had not attended the hearing - has had its findings set aside, writes Melanie Newman. The Employment Appeal Tribunal (EAT) has set aside five findings of unlawful race discrimination made against MMU after ruling that the original tribunal had gone "on a frolic of its own" by hearing the case in the absence of the academic making the allegations. A sixth finding against the university will be re-heard by the original tribunal.

Claudius D'Silva, a senior lecturer in the chemistry department, took the university to the Manchester Employment Tribunal in 2005. His case centred on allegations that university managers failed to respond to complaints of racial harassment and had treated white colleagues differently.

After his application to postpone his case was refused, the tribunal proceeded. The hearing lasted 14 days, with MMU calling six witnesses in its defence.

The EAT judge said university managers, rather than have the claims dismissed on the basis that the claimant had not attended the hearing, preferred to vindicate themselves via a hearing.

"That tactic backfired spectacularly," the judge said. Despite facing an "open goal", he said, the university was found to have directly discriminated against the lecturer in six respects.

But the EAT found that in seeking to represent the interests of the absent lecturer, the original tribunal went too far in acting as his advocate. It had advanced a different case on his behalf than the one presented, which it had then upheld. Dr D'Silva claimed a requirement that his lectures be observed as part of a teaching competence assessment was discriminatory. A white colleague who had received similar complaints was not observed, he said.

The original tribunal dismissed the point, saying that the colleague was not a true comparator, but it went on to find that Dr D'Silva had been treated less favourably than three other lecturers who had been subject to observation.

The EAT said that these were not comparators either and inferences drawn by the tribunal had no evidential basis.

Dr D'Silva said: "The matter is active and has been referred back to the same tribunal."

Barry Plumb, MMU deputy vice-chancellor, said the university had been "devastated by the injustice" of the first tribunal, and sought to "defend the reputations of ... named senior members of staff".

He said: "The recent outcome confirms that MMU's processes for promotion are fair and without racial discrimination."

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