Warwick back in the dock

July 30, 2004

'Deathbed testimony' leads appeal tribunal to reopen case

An employment tribunal that rejected a disability discrimination claim against Warwick University ignored the testimony of a key witness because it wrongly inferred that he had been coerced into making his statement, an appeal court has found.

The Employment Appeal Tribunal has ordered a rehearing of discrimination and victimisation claims by former Warwick internet consultant Yael Kahn, concluding that she did not get a fair hearing at her original tribunal.

In a decision late last week, the Appeal Court found that the original tribunal made a "serious error of fact" when it disregarded the written evidence of Ms Kahn's trade union representative, John Bennett, believing him to have signed his witness statement under duress in hospital, the day before he died in 2002.

"The tribunal ought to have considered (Mr Bennett's statement) and not dismissed it, as we find it did, because of the imputations that it had been extracted on Mr Bennett's deathbed," the Appeal Court said.

"The applicant did not have a fair hearing because in effect this material was excluded on grounds that were misplaced."

The appeal court's decision means that allegations of discrimination continue to hang over Warwick and over law professor Mike McConville, who is named in Ms Kahn's tribunal complaint.

The Times Higher reported in April last year that Professor McConville was "strongly condemned" for "misconduct", and found guilty of "indirect discrimination" against Chinese staff, after an internal inquiry at Hong Kong's City University, where he was on secondment.

Ms Kahn joined Warwick in 1995 to develop electronic journals in the Law School. After a car accident in 1998, resulting in a six-month absence, she filed a grievance alleging detrimental treatment, which the university dismissed. During an appeal against the decision, the university said she had rejected attempts at conciliation and, because there was a "breakdown in working relationships", it suspended her.

When Ms Kahn returned to her office during her suspension to remove a computer, the university called in the police and initiated disciplinary action against her. She resigned in March 2000, before the disciplinary hearing began, and made a complaint to the employment tribunal.

The tribunal dismissed her claims and ordered her to pay the university's £120,000 legal costs.

Referring to Mr Bennett's evidence, the Appeal Court said that the tribunal had given the impression "that the applicant was seeking to extract a signature from an unwilling Mr Bennett in hospital, the day before he died".

The Appeal Court judgment said: "However, it is common ground that he had affixed his signature to his statement... a year before his death, when he was in good health."

It said there was evidence of Mr Bennett willingly seeking to assist Ms Kahn in her preparation for the tribunal.

The Appeal Court granted two further grounds for appeal - that the original tribunal had "misdirected itself" on a detail of the disability discrimination law, applying a stricter test of discrimination than was necessary, and that the tribunal did not properly examine whether the university had made the "reasonable adjustments" required under the law to accommodate Ms Kahn's disability.

A spokesman for Warwick said the appeal rested on the conduct of the original tribunal and the university could not comment further at this time.

phil.baty@thes.co.uk

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