Chapman & Anor v Simon [1992] UKEAT 286_90_1307

EAT
Chapman & Anor v Simon
[1992] UKEAT 286_90_1307 · 1992-07-13
MR JUSTICE WOOD (PRESIDENT) This case concerns an allegation of direct racial discrimination by a Headmistress and the Education Authority - formerly Inner London Education Authority (ILEA) and since April 1990 the London Borough of Tower Hamlets - against the Applicant, a teacher. The Daneford School is in London E.2. It is a Comprehensive school for boys only and 70% of these boys are of Bangladeshi origin.An Industrial Tribunal sitting in London (North) after 9 days' hearing found in favour of Ms Simon upon two out of three of her specific allegations. This finding was by a majority. The Respondents now appeal. Ms Simon is a black woman of Afro-Caribbean origin. She was born in Antigua in 1955 and came to this country in 1960. She is a B.Sc, a BA and has a certificate in education. She is also a member of the Institute of Biology. Her first post as a teacher was at South Hackney School in 1980 and in the following year she came to Daneford School to teach in the Science Department. In 1982 she was made Head of Biology. In 1985 she became Head of a year, and in 1988 she became Head of 4th and 5th years which years constitute more than half the children in the school. In September 1987 Ms Hoyle came to Daneford School as Head of Science. In that capacity she was senior to the Applicant, but having regard to Ms Simon's headship of the 4th and 5th years they were more or less of an equal standing.By September 1988 the standards of the school were found to be low and the ethos was poor. There had been a number of head-teachers who had only remained for a short time. It was in that month that Mrs Chapman, the second Respondent, was appointed Headteacher. The Tribunal found that she had greatly improved the school. Both Ms Hoyle and Mrs Chapman are white.The Applicant's case, as ultimately presented by her counsel, was that she had, in comparison with her white colleagues, been less favourably treated by Mrs Chapman in three instances. The third concerned "being absent without leave". This is not the subject of appeal as the Tribunal rejected the Applicant's evidence on this issue and found against her.We would like to thank Mr Munasinghe for the admirable clarity and brevity with which the relevant issues have been identified and drafted. It is a model approach to these difficult issues in cases of discrimination.

The facts are somewhat complicated. The Applicant's case was introduced thus -

"The applicant's case is that she has been discriminated against in three instances in relation to her employment with the first respondent in that in comparison with her white colleagues she has been unfavourably treated in those instances by Mrs Chapman the Headteacher.

The first instance is as follows:-

"The way the complaints made by Ms Hoyle against the applicant (November instance) were processed by the respondents and in contrast to how the respondents processed the applicant's own complaints against Ms Hoyle (June instance)"
Ms Hoyle and Ms Simon did not get on well together. On 11th November 1988 Ms Hoyle wrote two reports each concerning a different incident. The first incident related to 7th November and the second to the 10th. The nature of the first complaint was "of unnecessary and totally unprofessional abuse" - "the latest example in a long series of disputes". The second related to a scene in front of a class and in the presence of another teacher, who later requested that he be removed from "collaborating with Ms Simon as this was not the first time an incident like this had occurred".There had been a number of previous occasions when Ms Hoyle had consulted Mrs Chapman about the difficulties with Ms Simon and prior to writing these reports, Ms Hoyle had been to see Mrs Chapman and told her that there were two major incidents which she could not ignore. Mrs Chapman had asked that, as these were complaints, reports should be presented in writing.

The Industrial Tribunal describe what follows thus -

"Mrs Chapman ... had never before dealt with a complaint and a grievance. She got advice from the NUT and from Mr Collins, the Divisional Officer of Division 5. She was advised that the written reports had to be handed to the Applicant. She asked Ms Hoyle to do this direct. Ms Hoyle declined, saying that she was concerned about the Applicant's reaction. Mrs Chapman told Ms Hoyle on Friday 18 November that she would hold a meeting on Monday 21 November 1988. We find that she did not tell the Applicant. On 21 November Mrs Chapman called in the Applicant. Ms Hoyle was already there. Mrs Chapman asked Ms Hoyle to hand the papers to the Applicant. Ms Hoyle did so. The Applicant became very excited and began shouting. Mrs Chapman closed the meeting, asked the Applicant to prepare a reply to the two complaints. The Applicant was very upset and went home."
On 22nd November Mrs Chapman wrote to Ms Simon setting out what had happened at the meeting on 21st; the letter included the following -
"... I explained the procedure I intended to follow in dealing with this matter. I ask that you prepare a reply to the two complaints and, if any discrepancy existed between the two accounts, I would ask for supporting statements from Mr Murzello and Mr Walker. You subsequently asked that Mr Murzello and Mr Walker be given copies of Ms Hoyle's reports, plus you insisted that they produce their own versions of the events in question. I agreed to these requests and reports are now being prepared by the teachers concerned.
I trust you will agree this is an accurate account of the events of that morning. I have of course omitted to record the extremely unfortunate remarks you made to Ms Hoyle during our meeting."On 25th November Ms Simon replied explaining that a close friend had died on 17th November, that she was upset and distressed, and had seen her doctor. On 2nd December Mrs Chapman replied. After dealing with questions of absence (the third issue) she wrote:-
"I would remind you that two official complaints have been made about your professional behaviour by Ms Hoyle, Head of the Science Faculty. I appreciate your present poor health means you are, in all probability, unable to respond to my recent letter. I will therefore delay further action until your return. However, can I make it clear that the documents concerned have not been withdrawn.
May I, finally wish you a speedy recovery to good health and suggest you receive the best possible advice about the measures you need to take from your recent acute anxiety."On 12th December there was a meeting between Mrs Chapman and Mr Barnes, the Applicant's Trade Union representative. During that meeting Mrs Chapman said to Mr Barnes, "If Ms Simon would apologise to Ms Hoyle and agree not to behave so unprofessionally again the matter could be resolved locally. That was all she had to do."

In a letter of 13th December Mrs Chapman wrote to the Applicant as follows:-

"As agreed with your NAS/NUT union representative, I have forwarded the complaint made by Ms Hoyle to the Disciplinary Section at County Hall.
I regret the fact that you have refused my offer to mediate between yourself and Ms Hoyle. Two colleagues from the Science Department have confirmed the facts alleged in Ms Hoyle's complaint, copies of their statements have also been forwarded to the Disciplinary Section.I trust that the complaints made by Ms Hoyle will be dealt with speedily. Clearly it was necessary to delay the procedure until such times as your health was recovered."On that same day Mrs Chapman wrote to Ms Isaacs at the Disciplinary Section of ILEA as follows:-
"I enclose a copy of my letter to Ms Simon re recent matters of a disciplinary nature connected with her work and behaviour.
I would very much appreciate your pursuing the two complaints made by Ms Hoyle, as Ms Simon refuses to apologise for her recent actions or promise to behave differently in the future."After due investigation, about which no complaint is made, the Applicant was ultimately issued with a warning. This was dated 9th May 1989.Mrs Chapman had herself made a formal complaint to ILEA about the Applicant's behaviour on 3rd January. We have seen the relevant documents but they were not considered by the Tribunal. We agree that they are not relevant..In the month following her warning, the Applicant made two formal complaints about Ms Hoyle. They are dated respectively 19th and 20th June 1989. The first alleged obstruction to her work and abuse of the Applicant: the second, "victimisation, harassment and unprofessionalism as a Head of Division to a colleague". She set out five matters -

"My claims are based on the following

1.Allegations by Ms Hoyle that I had not completed 5th Year modules two weeks after 5th Years had completed their exams and left school.2.Sending photocopies of my record book to Mr Watson without my knowledge and consent in order to mislead him.3.Obstructing me from being able to carry out my duties as fully as possible.4.Swearing and verbally abusing me in a classroom situation.5.Making a racist remark by calling me a "black bitch" in the upper science corridor at 10.45 a.m. when I tried to ask her about her allegations in her letter dated 16th June 1989."The Tribunal find that the fifth allegation to have been established and then deal with this first argument on behalf of the Applicant as follows:-
"The Applicant's point here is that Mrs Chapman made strenuous efforts to dispose of these complaints locally and not to send them to County Hall so as to protect Ms Hoyle. We find this allegation of different treatment on racial grounds not proved. We think it is explained by Mrs Chapman's being unfamiliar with the procedures of ILEA. (In case it becomes of any importance hereafter, we state our finding that Ms Hoyle did call the Applicant a "black bitch". For this we accept the evidence of the Applicant and Dr Das. We think that Mr Munasinghe was correct in accepting that it is not in itself a detriment."
However, having found against the Applicant on that first issue as presented the Tribunal go further as follows:-
"In reviewing the evidence relating to Ms Hoyle's complaints against the Applicant we have been greatly concerned about one matter, namely that we find that Mrs Chapman pre-judged the case against the Applicant."
They refer to correspondence as outlined above in this judgment and refer to a specific answer given by Mrs Chapman in evidence when she had told the Tribunal "I believe from the statements from the other two members of staff that Ms Simon had behaved unprofessionally". The Tribunal then conclude as follows:-
"There is no evidence before us that Mrs Chapman ever did get from the Applicant her account of the alleged incidents. She sent the papers to Ms Isaacs with a clear implication that the Applicant was in the wrong. This seems to us to be fundamentally unfair. One thinks that the explanation is that Mrs Chapman was exasperated by the Applicant as a person, an individual, irrespective of her colour. The majority of us think that the Applicant's colour was a factor in Mrs Chapman's act of pre-judgment. We drew that inference. It is clear from the case of Owen & Briggs v. James [1982] ICR 618, C.A. that colour need not be the sold factor. It is sufficient if colour is an important factor. The majority of us find that there is here a breach of section 1(1)(a) and of section 4(2)(c). The detriment is the pre-judgment and the consequent warning. We all think that Mrs Chapman's conscious attitude to race is impeccable, but two of us think that sub-consciously or unconsciously she was affected in this instance by the fact that the Applicant is black. In case it becomes of importance hereafter, we all concur in finding that Mrs Chapman did not, as she is alleged to have done, say on one occasion to the Applicant that she would work her like a dog but that the Applicant would not mind that because she came from a race of slaves."
The disciplinary procedures at ILEA have been explained to us during this appeal. It is ILEA which disciplines teachers, not heads of schools. The following points are made on behalf of the Appellants: first, that the "unfair pre-judgment" was not the complaint being made by Ms Simon; secondly, that an error in procedure may not come within the Race Relations Act 1976; thirdly, that Mrs Chapman was never in a position to "judge" - that was not her function; fourthly, that in seeking reports from Mr Murzello and Mr Walker, Mrs Chapman was doing no more than she had been asked to by Ms Simon and that in any event the intended procedure was made clear to Ms Simon without subsequent criticism or complaint and that Mr Barnes, her Trade Union representative, was consulted throughout; fifthly, that there was no evidence to indicate that anything done by Mrs Chapman had interfered with or prejudiced the full enquiry carried out by ILEA disciplinary staff about which no complaint was made; sixthly, that having found that "Mrs Chapman's conscious attitude to race was impeccable" there were no primary facts found from which it is possible to infer "subconscious" or "unconscious" racial prejudice - "What did she do or fail to do which evidenced that prejudice?"; and lastly, it is contended that there is a clear indication that on findings of fact - which could indeed have indicated racial prejudice - the evidence of Mrs Chapman was accepted.We find these submissions to be formidable and accept them. In so doing we are therefore satisfied that the reasoning of the Tribunal is flawed and erroneous in law.The second instance in the submission on behalf of Ms Simon is dealt quite shortly in paragraph 10 of the Decision.
"10. We turn to Mr Munasinghe's second alleged instance, which he stated as follows:-
"The failure of the Respondents to prepare an Open Report for the Applicant despite repeated requests. Such a report, the Respondents were aware, would have facilitated applications the Applicant was making at the time for transfer/promotion to other schools within the Respondent Authority. This had the effect of putting the Applicant under a disadvantage."
The first Respondent had a system whereby a teacher was entitled, on request, to an Open Report, which was different from a reference given in response to a request from a potential employer. An Open Report could, as it were, be carried in the pocket like a driving licence. In or about February 1989 the Applicant asked Mrs Chapman for an Open Report. We find that the Applicant had to make four requests before she got an Open Report. On 26 April Mrs Chapman produced an Open Report. The Applicant criticised certain aspects of it and, as she was entitled to do, she asked for changes. There was a lot of correspondence to and fro. To this day a finalised report has never been produced. One of us finds that this is due to Mrs Chapman's exasperation with the Applicant as an individual, irrespective of her race. The majority of us find that a factor in this incident is the Applicant's colour. We repeat our observations in paragraph 9 above.

(c) "

In connection with this issue we have been referred to a substantial number of documents. In February 1989 Mr Barnes, NUT, had written to Mr Phillips, the Deputy Director of Education at ILEA, suggestion that Mrs Chapman was refusing to provide "a supportive report for Ms Simon in relation to job applications both inside and outside the school". Mr Phillips asked Mrs Chapman for her comments, which as relevant, were made in her letter of 23rd March 1989.
"Secondly, I have not refused to provide a 'report' or reference for Miss Simon. I have merely warned her that, when such a request is made, I will need to mention the on-going difficulties she is experiencing in terms of inter-personal relationships with her head of faculty. If this is what is meant by my 'not providing a supportive report', then I can only state that I have never provided an inaccurate reference about a member of staff who I feel is not a suitable candidate for a particular post. I am happy, of course, to provide an open report for Miss Simon which will simply outline her strengths and weaknesses as I, and the head of faculty, see them."
On 13th April the Applicant made what she describes as her fourth request for an Open Report. The suggestion that it was a fourth request was not accepted by Mrs Chapman in her reply of 14th April in which she undertakes to prepare such a report.This she did. It is dated 26th April 1989. It is a full and comprehensive typed report covering two pages.By a letter of that same date Ms Simon complained of parts 3, 5, 7 and 9 of that report.In a letter of 12th May Mrs Chapman replies to these criticisms and indicate the extent to which she would be prepared to amend that Open Report of 26th April. There is some mystery about an earlier draft of this letter and much correspondence. Mrs Chapman asked for further information in a letter of 24th May and again in one of 12th June.On 22nd June Mrs Chapman writes,
"I note with surprise that the additional information for your Open Report has not been received to date.
I therefore intend to go ahead with the writing of your Open Report in the manner indicated previously."This second aspect of this present case ends with a flurry of letters between the Applicant and Mrs Chapman dated 27th June, 6th July, 9th July and 14th July.The ultimate situation seems quite clear. Mrs Chapman is prepared to amend her Open Report of 26th April, but only as she sees fit. As was submitted on behalf of the Applicant she was not prepared to write an inaccurate report and was prepared upon receipt of further information to reconsider the matter. However, no such further information was ever received. She was not prepared to sign a report the contents of which were dictated to her by the Applicant, Ms Simon. The extent to which an Open Report is available is therefore clear.There is no other teacher mentioned with whom a comparison is drawn and as compared to whom Ms Simon could allege that she had been less favourably treated, nor in the documents do we find any indication that any action taken by Mrs Chapman was "on the ground of race".However, the lay members of this Tribunal, feel that we have not seen or heard the witnesses and that although on the reasoning expressed it is difficult to understand how the majority reached its conclusion on this issue, there may have been sufficient oral evidence to support their finding.It is true that we have not seen the Notes of Evidence and that despite her denial there is a finding of fact that Ms Simon did make four requests for an Open Report before 26th April, but I cannot accept that the phrase underlined in paragraph 10 "To this day a finalised report has never been produced " means that it was refused. A finalised report was always on offer but not in the form acceptable to Ms Simon. The correspondence speaks for itself.On the facts as they appear to us we would not have found that the action of Mrs Chapman as indicated in the documentation were "on the grounds of race", even if constituting "less favourable treatment" in comparison with some other teacher, but as we did not hear or see the witnesses we decide that it would be inappropriate to interfere with this finding of fact by the majority.This appeal succeeds on ground one but fails on ground two and must therefore be dismissed.