Dr. D’Silva v NATFHE [UCU], Michael Scott & Others EAT/PA/1161/06/LA
On the 26th June to 6th July 2006 the Buckley Tribunal heard Dr. D’Silva claim of racial discrimination and victimisation against NATFHE, Michael Scot & others at the London Kingsway Tribunal. The Kangaroo Tribunal dismissed his claims on the 2nd August 2006.
On 7th July 2006 Dr D’Silva’s union [NATFHE] wrote to him that following the amalgamation of NAFTHE with the AUT to form the UCU, the union Rules for legal aid have changed and an amended to Rule 5.6 has been introduced. This clause has a draconian affect on members as the UCU can refuse assistance to anyone due to alleged or perceived conflict of interest to exclude troublemakers. Since July 2006 to end of last year under the above clause the UCU has refused legal assistance to 3 other members other than Dr D’Silva and Mr. Deman. Of the 5 victims 4 are of Indian origin and 1 Iranian. Further to teach Dr D’Silva right lesson the UCU has applied for costs in regard to the above adverse decision of the Kangaroo Court.
Dr D’Silva appealed the decision of Buckley Tribunal. On 20th June 2007 some members of the CAFAS and the CEM attended the EAT as observers and they witnessed how even at the highest level of EAT, Justice Elias, President climbed down which resulted in his humiliating recusal from hearing an Appeal in Dr D'Silva v UCU, Michael Scot, Paul Mackeny & others.
On the 17th July 2007 to the surprise of the CEM (Council for Ethnic Minority) and members of CAFAS, Mr. Justice Silber finally granted Dr D’Silva’s Appeal against the Buckley Tribunal’s perverse decision against his Union, Michael Scott & other Labor Party Mafia [now called UCU]. The appeal was granted on the following grounds:
- The tribunal erred in law as it took a fragmented approach to the case examining each event individually instead of looking at the totality of the issues dating back to 2002.
- The Tribunal failed to construct a hypothetical comparator.
- The Tribunal failed to draw any inferences in the Union’s failure to disclose documents in regard to alleged comparators, despite a court order requesting the Union, comply.
- The Tribunal failed to draw discriminatory inferences in regard to
a. Failure to keep ethnic monitoring information
b. Evasive answers to the RRA questionnaire
c. Allegations of race discrimination made by the claimant to the CRE and the racial bias evinced in hostility.
However Dr D’Silva had a bumpy ride before getting anywhere. The granting of the appeal hearing came after three previous unsuccessful attempts to secure a hearing.
Initially HHJ Peter Clark, on the 8th February 2007 adjudicated that the Appeal had no reasonable prospect of success and no further action would be taken. Dr D’Silva requested an oral hearing appealed against his decision under Rule 3(10) of the EAT Practice Directions 2005 which was scheduled to be heard on the 20th June 2007, before Mr. Justice Elias, President of EAT. Dr D’Silva informed Mr. Justice Elias that his lay Representative and he had submitted a Judicial Complaint against him therefore he should recuse himself from hearing the appeal. The Appellant’s solicitor also requested of the EAT in early June 2007 that Justice Elias should not hear the above appeal because of an outstanding Judicial Complaint of unprofessional conduct and racial bias made against him [http:cemkumar.googlepages.com].
Further the Council for Ethnic Minority also made a few complaints to the Lord Chancellor ‘s Office against Justice Elias, which the Claimant's Counsel Mr. Dale Martin of Littleton Chambers brought to Justice Elias’ attention to highlight the issue of a conflict of interest. Justice Elias accepted that he was a member of the AUT [now UCU]. Justice Elias stated in open court that he has previously been accused of being a member of the Zionist -Labour Party Mafia but stated he was not Jewish. Dr. D’Silva’s Counsel, Mr. Dale Martin told Justice Elias that his ethnicity was irrelevant as he could still support that regime.
However, after 2 hours of rambling Justice Elias refused to recuse himself and continued to hear the appeal in regard to Buckley Tribunal’s perverse decision against NATFHE (UCU) & others. After hearing eight points of the Dr D’Silva’s appeal for two hours Justice Elias made a surprise disclosure that he had previously been instructed by Michael Scott, a key respondent in the case and had met with him both on a professional and social basis, probably at some Labour-Party fund raising events. Justice Elias having exposed himself to those present at the EAT, was then invited by Mr. Martin to recuse himself from the further hearing of the Appeal which he did. The Appeal was to re-schedule taking into account Counsel, Mr. Martin’s availability but it was listed without contacting Dr. D’Silva’s Counsel and Solicitor.
On the 5th July 2007 the Claimant was summoned to a new Rule 3(10) Hearing before Justice Burton, past President of the EAT who introduced the above hurdle in the appeal process. Prior to the above Hearing, claimant’s solicitor informed the EAT of the unavailability of Counsel, Mr. Martin on that day but Mrs. Johnson Deputy Registrar and Mr. Justice Burton refused to adjourn the Hearing. The Claimant attended the EAT in person to request an adjournment on the grounds of his Right to choice of his own counsel. What followed was an hour of brow beating of the Claimant by Justice Burton who was predisposed to hear the case and wanted the Claimant to accept any available Counsel so that the appeal could be heard and dismissed quickly. Surprisingly, Justice Burton noticed Mr. Suresh Deman and Mr. Andrew Graham in attendance as observers along with others. First he asked Mr. Deman to represent the Claimant. Mr. Deman told Justice Burton that his intervention could only damage the Claimant’s position in view that the ET had not listened to him when he represented the Claimant and he wondered why would the EAT do so now? Then Mr. Justice Burton mentioned Mr. Graham’s name. Mr. Graham told him he was a hangman not a judge. Being a social pariah, anything that he would say on behalf of Dr. D’Silva would be detrimental to his appeal. Justice Burton was so desperate to sabotage his appeal that he himself made a few calls to other Chambers to get a Barrister of his own choice right away or the next day to undertake the hearing. However, Dr. D’Silva told Justice Burton that he would like to go over each and every point in support of his application for adjournment. Finally Justice Burton repented and allowed the Claimant to have the counsel of his choice at the hearing on 17th July 2007 the first date of Mr. Martin’s availability. Mr. Justice Silber heard the Rule 3(10) application and allowed the appeal to go for a full hearing, which HHJ Peter Clark erroneously thought had no prospects of success.
The EAT tactics to undermine the Claimant’s Appeal resembled that used in American Football. The heavyweight linebackers played a defensive blocking action to intimidate the opponent and stop the ball progressing. The opponent on overcoming the frontline defense then succeeded in obtaining a try. The Appeal now goes for a one day full hearing at the EAT before a judge and two lay members. The future will see if this small win can be translated into a conversion and a re-hearing of the Dr. D’Silva claims against the UCU Mafia.
In sharp contrast to Dr. D’Silva’s above appeal against the Kangaroo Tribunal’s decision in favour of the UCU mafia, his employer (MMU) appealed the decision of the Tribunal in favour of Dr D’Silva against Manchester Metropolitan University & others (see CAFAS 52). HHJ McMullen allowed the Employer's Appeal even without a Rule 3(10) or a preliminary hearing, which was heard for 2 days on the grounds of perversity. Dr C. D’Silva could not attend the Employment Tribunal due to sickness and was not represented so any perversity in the decision was in favour of MMU in that he only won 25% not 100% of his claims.
Hence the suggestion by victims that the EAT be re-named as the Employer’s Appeal Tribunal appears to make sense.
Those interested in Academic Freedom should pursue this matter with the press and request a transcript from the EAT of the Hearing and make a complaint to the Office of Judicial Complaints. It is a matter of record that the use of the term bias by the Racist Zionist -Labour Party -Mafia is acceptable in open court and even Justice Elias did not feel offended by the use of the phrase. I would like members of the Defending Academic Freedom to take notice and have a more open mind during debates of Academic freedom even with trolls.