Islamic Cultural Centre & Ors v Mahmoud [2008] EWCA Civ 171

Case No A2/2007/1635[2008] EWCA Civ 171
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HMJ ELIAS, MR D WELCH & MR J C SHRIGLEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 14 th February 2008
Before
LORD JUSTICE PILL,LORD JUSTICE LONGMORE
Between
ISLAMIC CULTURAL CENTRE & THE LONDON CENTRAL MOSQUE & ANOTHERAppellantMAHMOUDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr E Egypt (instructed by Messrs Cain & Abel Law firm) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]This is an appeal by the Islamic Cultural Central and the London Central Mosque and Dr Teinaz against a decision of the Employment Appeal Tribunal, dated 27 June 2007. Both parties seek permission to appeal against that decision. The proposed respondent is Mrs N A Mahmoud.[2]The EAT allowed in part an appeal by the present applicants from a decision of an Employment Tribunal held at London Central, whose decision was dated 1 September 2006. That decision followed a hearing over several days in July and August 2006. The present applicants were represented by counsel, as was Mrs Mahmoud.[3]The findings of the Employment Tribunal were that the first and second applicants had unlawfully discriminated against the claimant and victimised her, contrary to the Sex Discrimination Act 1975 and the Race Relations Act 1976. A substantial sum was awarded by way of damages. The Employment Appeal Tribunal held that there was a firm evidential basis for the findings of sex discrimination and victimisation, but that the Employment Tribunal had erred in its approach to the question of race discrimination. Thus the appeal against the finding of racial discrimination was allowed; the appeals against the sexual discrimination and victimisation were dismissed by the EAT.[4]The proposed respondent, who was the claimant before the Employment Tribunal, was employed as an administrative assistant at the Cultural Centre, if I may refer to it in that shorthand way. The mosque is a very large one. The director general is nominated by the Saudi Arabian Government, and his deputy and four Imams are appointed by the Egyptian Government. There are forty members of staff. The then claimant was employed as an administrative assistant. Dr Teinaz, the second applicant, acted as Health and Safety Management Advisor to the mosque on a voluntary basis. He later became head of administration and human resources, again on a voluntary basis. Initially relations between him and Mrs Mahmoud were good, but they deteriorated. A number of allegations were being made by him against her. On one occasion, and I quote the determination of the EAT:
“…he wished to have access to the notice board. She had been told by the director general not to release the key to anyone and she refused to give Dr Teinaz the key and she was subject to some abuse from him. She wrote to the director general complaining about this and saying that she considered was the subject of sex discrimination.”
The EAT continued:
“Dr Teinaz replied setting out a number of very serious allegations against the claimant. She was said to be breaching confidentiality in [the affairs of one of the officers]; arranging marriages of convenience in the mosque; being involved in black magic; providing food for functions in the Cultural Centre; and being involved in tax fraud. The Tribunal noted that these were merely rumours in the mosque and although Dr Teinaz suggested that he was merely reiterating those rumours, they considered that this was not the tone or purpose of the letter.”
[5]The deputy director general, Mr Sheikh Mady, sought to resolve the issues by calling the parties together. However, his attempts were unsuccessful. In December 2004 Mrs Mahmoud was removed from the position working for the director general to providing administrative services to the support service. In January 2005 allegations were made by Dr Teinaz of gross misconduct by Mrs Mahmoud. He sought her dismissal. Both tribunals have set out the sequence of events in considerable detail. Mrs Mahmoud took five weeks off work for stress, which a consultant psychiatrist had confirmed continued into the late autumn of 2005. The EAT found that Dr Teinaz had made efforts to create further complaints against the complainant, summarising, as they were, the findings of the Employment Tribunal.[6]A committee was set up to consider grievances in February 2006. They concluded there was no sexual or racial discrimination but that Mrs Mahmoud might have felt harassed because of letters requiring her to clarify her identity. An appeal against that finding was dismissed. On 6 February, a further grievance was lodged by Mrs Mahmoud that Dr Teinaz had victimised her because she had raised race and sex discrimination claims. She identified two matters: the first was the complaint by the gentleman whom the tribunal found had been pressurised into making a complaint by Dr Teinaz and who had admitted that to Sheikh Mady. Second, she submitted that, as a result of a complaint he had made, these allegations about assault at Heathrow airport and certain allegations about her arranging marriages improperly that I quoted from paragraph 25 of the EAT decision.[7]The EAT noted at paragraph 27:
“The [applicant’s] contention before the Tribunal was essentially that Dr Teinaz may have acted in a heavy handed way and displayed poor management, but it was not on grounds of sex or race.”
[8]The EAT state that the Employment Tribunal had noted:
“…that nobody else appeared to have been the subject of such a concerted long campaign of treatment.”
[9]There had been complaints by others about his conduct. The EAT summarised the Employment Tribunal’s decision at paragraph 28:
“The Tribunal also noted that the petition from users of the mosque stated that Dr Teinaz ‘has no respect for women’. Sheikh Mady considered that Dr Teinaz’s behaviour amounted to ‘an exploitation of the weakness of women in Islamic culture.’”
[10]The EAT then set out the submissions of the parties; the central submission made by Mr Egypt today on behalf of the applicants was the same as that made before the Employment Tribunal, or essentially so. Reliance was placed on the evidence that Dr Teinaz had treated men and women alike, but badly.[11]The Employment Tribunal had found Dr Teinaz to be an unreliable and unimpressive witness. The EAT concluded:
“They [the ET] also had regard to Sheikh Mady’s evidence. That alone, once accepted, provided a proper evidential basis for their conclusions, and it was not the only evidence. But his view was also reflected in the observations in the petition. Moreover, Dr Teinaz had also considered that Mrs Mahmoud had acted in a way which was inappropriate for her ‘as a woman’. The evidential material to sustain their conclusion was indeed very strong.”
The conclusion was, of course, that in relation to sexual discrimination.[12]Having dealt with racial discrimination in the way I have indicated, the EAT considered the Employment Tribunal’s findings on victimisation. They set out the complaints which I have already described. They referred to the Employment Tribunal’s findings that Dr Teinaz was “an evasive and unreliable witness”. They considered the particular incidents and referred to the “link here between the raising of the grievance and the incidents is striking.”[13]Their conclusion at paragraph 58:
“Accordingly, whilst we consider that the Tribunal might have provided a fuller account of its reasoning on this matter, we are equally satisfied that there would be no purpose in remitting the case to the further findings. The evidential basis for their conclusion that the respondent had failed to prove that less favourable treatment was not by reason of the protected acts was indeed strong.”
[14]Mr Egypt has submitted a skeleton argument running to 35 pages and has addressed the court for almost an hour. The central argument on sexual discrimination, which is repeated in different guises (and no complaint about that) in the long skeleton argument and was repeated in oral submissions this morning is that the initial incident of dispute -- that is, the dispute about the use of the noticeboard -- was not sexually discriminatory or sexually motivated, and there is no finding to that effect. The Employment Tribunal have not, submits Mr Egypt, indicated when the course of conduct which they found to have occurred became sexually discriminatory. That is, that the conduct was motivated by the fact that Mrs Mahmoud was a woman.[15]Mr Egypt cites paragraph 5.31 of the Employment Tribunal’s decision:
“…we have made it clear that there was a campaign of harassment by Dr Teinaz against Mrs Mahmoud which arose as a result of her challenging him over the use of the noticeboard at the Mosque.”
He cites paragraph 9.2.1:
“…it is our view that the factual findings disclosed a chain of conduct in relation to sex discrimination which commenced in May 2004 or thereabout and continued until after the ET was lodged.” 9.2.2: “In particular we take into account the lengthy campaign of ill treatment.”
[16]Mr Egypt submits that the approach of the Employment Tribunal was fundamentally flawed. They have not considered at what point the alleged triggering event turned into a campaign of sexual discrimination. When, he asked rhetorically, did it metamorphose into sexual discrimination? He has referred the court, and properly so, to paragraph 5.7 of the Employment Tribunal decision which does set out their reasoning as to the nature of the conduct. The length of a campaign, he submits, cannot convert a non-discriminatory campaign to a discriminatory campaign. The tribunal has erred in its conclusion that the campaign against Mrs Mahmoud was because of her sex. Mr Egypt further submits that there is a discrepancy now between the finding of racial discrimination which was rejected by the EAT and the subsistence of a finding of sexual discrimination. As to who is a comparator, he submits that the Employment Tribunal failed to look by way of comparison not just at a man, but at a man who was doing the particular administrative job which Mrs Mahmoud was doing.[17]As to the evidence of Sheikh Mady to which I have referred, Mr Egypt submits that it was revealed only at a late stage and, in effect, there was an ambush. Counsel then appearing did not, it appears, ask for an adjournment so that further consideration should be given to the evidence. We find it inconceivable that the letters produced to the court this morning -- and only this morning, in relation to an alleged dispute over spring water -- could have altered the approach or decision of either tribunal. The applicants were represented before the Employment Tribunal by counsel, who plainly made full submissions which were carefully considered; and we do not consider that the decision to admit the evidence -- which is alleged to have shown an Islamaphobic prejudice by the tribunal -- can be criticised or can form the basis for an appeal to this court.[18]On the central point, Mr Egypt has developed his argument by analysing the failure, as he sees it, of the Employment Tribunal to find the reason for the behaviour of Dr Teinaz. As to alleged victimisation, Mr Egypt submits that, given the history of Dr Teinaz’s persistent, lengthy campaign of ill-treatment against the claimant, would, he asked rhetorically, Dr Teinaz have not done, or encouraged, the two acts on which they find the claim of victimisation, regardless of discriminatory motivation? The Employment Tribunal, it is submitted, having found sexual discrimination, failed to analyse the nature of the conduct and whether it did amount to victimisation, whether or not sexual discrimination had been established.[19]The Employment Tribunal plainly heard the evidence and submissions conscientiously. They have set out in considerable detail the evidence given and their findings upon it which I have analysed by reference to the determination of the Employment Appeal Tribunal. In my judgment the Employment Tribunal were entitled to make the findings they did of sexual discrimination and victimisation, and those findings are sufficiently explained in their determination. It is their decision which essentially is under analysis in this case. Discriminatory conduct may be triggered by a non-discriminatory event.[20]I have referred at some length to the decision of the Employment Appeal Tribunal. I have done that because it appears to me to be a fair summary of the proceedings before the Employment Tribunal and because I agree with the conclusions reached by the Employment Appeal Tribunal as to the non-appealability of the findings of the Employment Tribunal.[21]In my judgment there is not a real prospect that, upon further consideration, this court would allow this appeal or would grant other relief to the applicants, and for those reasons I would refuse this application for permission.[22]I agree. There is nothing that I need to add.

Order

Application refused