Hussain v Birmingham City Council & Ors [1996] UKEAT 1377_95_0105

EAT

Hussain v Birmingham City Council & Ors

[1996] UKEAT 1377_95_0105 · 1996-05-01

MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mrs N Hussain against the decision of the Industrial Tribunal held at Birmingham on 23 to 27 January, 23 to 27 March and 17 to 19 July, 1995. The Tribunal heard a claim brought by Mrs Hussain against a number of Respondents for race discrimination, contrary to the Race Relations Act 1976 . The Respondents were Birmingham City Council, National Union of Teachers, Birmingham (Sparkbrook) Constituency Labour Party, and the Governing Body of Springfield Junior & Infant School.

The Tribunal heard the case argued by Mrs Hussain, in person. They unanimously decided that the application against the Labour Party should be dismissed. The application against the National Union of Teachers was dismissed, on being withdrawn by Mrs Hussain. The application against the City Council and the Governors of the School failed, and was accordingly dismissed.

The full reasons, which explained how those decisions were reached, were sent to the parties on the 4 September 1995. Mrs Hussain was disappointed by the decision. Her Notice of Appeal was served on 9 October 1995. She stated under the grounds of appeal that the Tribunal had erred in law and fact, and its decision was against the weight of the evidence. There have been lodged on the appeal a large number of documents, attached to the further and better particulars of the Notice of Appeal, which explain the points which Mrs Hussain wishes to argue before us. We have to decide on the Preliminary Hearing whether these points raise a point of law which is reasonably arguable. This Tribunal only has jurisdiction to hear appeals on questions of law arising from decisions of an Industrial Tribunal. There is no appeal to this Tribunal on questions of fact. Only the Industrial Tribunal can make a decision on the facts, because it is only they who hear the witnesses give evidence and decide, where there is a conflict of evidence, who should be believed and what the facts are.

In this case the main point of dispute between Mrs Hussain and the Respondents, was about dismissal from her post as a Head Teacher of the Springfield Junior and Infant School. In her application presented on 5 April 1994, Mrs Hussain said:

"An unsuccessful attempt was made by the Chief Education Officer of Birmingham City Council Education Authority to suspend me from my post as Headteacher on 21st October 1993. I was unjustly suspended on 22nd November 1993 by the Governing Body and removed from my position by a panel of 3 Governors on 13th January 1994. My pay was also stopped on 19th January 1994 until approximately 4th February 1994.

My appeal against the Panel's decision was rejected by a Panel of 3 Governors on 28th February 1994.

I believe that from the time of my appointment in May 1993, until the rejection of my appeal, I have been subjected to discrimination and treated unfairly on racial grounds as a woman of Asian Muslim origin.

I further believe that pressure to discriminate against me has been brought to bear by employees, representatives, nominees or members of each of the respondent bodies cited in this application."

We are mainly concerned on this appeal with the response to the claim by the Birmingham City Council and the Governing Body of the School. Their Notices of Appearance are in practically identical form. We need only refer to the way in which the City Council states its grounds of resistance to the claim. Their case was this:

"The Applicant was appointed as Head Teacher of Springfield Junior and Infant School on 1 September 1993.

This appointment followed the submission of an application form in which the Applicant was required to give details of her education, qualifications, past employment, past experiences and training. An investigation was carried out into the accuracy of the claims made by the Applicant in her application form and the result of that investigation was contained in a report dated 23 December 1993.

As a result, a disciplinary hearing was held on 13 January 1994 which found that the information given by the Applicant in her application form was incorrect in a number of substantial details and claimed levels of academic achievement which could not be substantiated.

Further that the inaccuracies and misrepresentation brought about a breakdown of trust and confidence between the Applicant and the Governing body to the extent that the Local Education Authority should be notified to terminate her contract of employment."

An appeal against that decision of the first committee of the Governing Body was held on 28 February 1994 and that committee upheld the decision of the first committee of the Governing Body and decided that the Applicant's contract of employment be terminated with notice."

The rest of the case deals with the circumstances in which her contract was terminated. The Notice of Appearance concludes by stating:

"The Applicant's race, colour or ethnic origin was not a material consideration to the decision and the Respondent denies that the Applicant has been discriminated against on grounds of her race."

That was the main issue for decision by the Industrial Tribunal. Was there a breach of the Race Relations Act 1976 ? The complaint is framed as a complaint of direct discrimination, contrary to Section 1(1)(a) of the 1976 Act. That Section says:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if__ (a) on racial grounds he treats that other less favourably than he treats or would treat other persons;"

The position here is that Mrs Hussain had been the subject of unfavourable treatment. She had lost her position as Head Teacher. The question for decision was: on what grounds had she suffered that unfavourable treatment? Was it on racial grounds? If it was, then that would be a breach of the Act. Or was it on grounds that were not racial? If that were so, there would be no breach of the Act.

The Tribunal had to decide, as a question of fact, what were the grounds for Mrs Hussain's termination of employment? At the thirteen-day hearing, the Tribunal heard a large amount of evidence. They came to the conclusion in paragraph 23 of their Extended Reasons in these terms:

"... Was that act of dismissal doing the applicant down because of her race? No, it was not. Her race, we find, had absolutely nothing to do with her dismissal. She deliberately deceived. That is why she was dismissed."

In coming to that conclusion, the Tribunal state that they unanimously agree with the finding that was made on the appeal after the disciplinary hearing. In paragraph 21 they refer to the disciplinary hearing and state how those involved were people who had not been involved in the issue of appointment. They went through all the documentation, including the application form and the CV; they listened. The Tribunal said there was no doubt that that committee came to the entirely correct decision. They dismissed the Applicant, not for some financial impropriety, but because of deception on the CV.

They dealt at paragraph 22 with the appeal. They saw the notes of the hearing and the findings of the appeal body. The appeal covered matters which were then covered again in the hearing before the Tribunal. The Tribunal stated that they unanimously found as a fact that the findings of the appeal body were correct. They said the committee went on from early morning till late afternoon, going through each of the allegations relating not to financial impropriety, but to the falsifying of the CV in an attempt to deceive so as to obtain a job. They found that is what she had done. The Tribunal added in paragraph 23:

"We cannot disagree with that finding. It was honestly reached. Insofar as it is relevant, we all 3 agree with that finding."

We have to ask whether that conclusion or the reasoning of the Tribunal that led to that conclusion, contains a question of law which is reasonably arguable. If it does, then this case must proceed to a full hearing.

In her arguments this morning and this afternoon, Mrs Hussain has made a number of points. She prefaced these by explaining the difficulty which she had in dealing with the case. She had had a solicitor acting for her, but he had unfortunately died shortly before the hearing. She had had to conduct this case herself. We appreciate the difficulties that an unrepresented person faces in presenting evidence and argument to a Tribunal. The main complaint is summarised in the particulars of the grounds of appeal. Her main points were that the decision reached by the Tribunal was inconsistent with the evidence; that the decision includes untrue information; including information which was not mentioned in the Tribunal; that the Chairman failed to direct the panel to treat the issue as one of continuous discrimination; running, it is said, from 21 May 1993 to 28 February 1994, and the Tribunal Chairman failed to direct the panel on matters relating to indirect discrimination by the Local Authority and by the Governing Body in their decisions about what constituted genuine occupational qualifications for the position of Springfield Junior School.

Further details are given of that. The final part of the particulars deal with what Mrs Hussain would wish to rely on as new evidence. She said that the Council had refused to provide any statistical evidence to the Tribunal, but some statistical evidence had been confirmed and supported. She has referred to those items in an additional bundle of documents sent to the Tribunal just a few days ago. She has referred to the document which shows the ethnic composition of head teachers in Birmingham junior schools, indicating that, although there were 334 junior schools, the number of Asian women who were head teachers was nil, and the number of Asian women who were deputy heads is nil. Mrs Hussain's name appears as the one head teacher who has been dismissed or suspended. She has also referred us to a further page of statistics relating to the ethnic composition of pupils at Springfield Junior School and to further statistics relating to ethnic composition of teachers at the Springfield Junior School in the period 1993/1994.

Mrs Hussain submitted that the Chairman of the Tribunal made an error of law in excluding these documents which she says are relevant to her complaints from the hearing in the Industrial Tribunal. She has referred to a number of other further documents, including the CV form, and also a publication of the Birmingham City Council called `Breaking Through - The Birmingham Approach to Career Development for Employees from Black & Minority Ethnic Groups'. All those documents are in support of the general point that it was an error of law to exclude from the Tribunal relevant documentary evidence.

Mrs Hussain said that one of her complaints was about indirect discrimination, and that this is not dealt with in the Tribunal decision. When we asked her what condition or requirement she was relying on in order to establish a claim of indirect discrimination, she referred to two matters, the appointment of probationary teachers and the deputy head status of Applicants for head teacherships.

Finally, Mrs Hussain referred to an event which she had told us had occurred after the last day of the Tribunal hearing, when the decision was given on 19 July. She mentioned things said in a radio interview. We discount that last point entirely, because what was said after the decision was given cannot possibly be relevant to the issue which we have to address, which is whether there is an error of law in the decision. We decide that question by looking at the decision itself, and any relevant surrounding material.

We have considered all these matters with Mrs Hussain and discussed them with her. We have reached this decision that there is no arguable error of law in the decision of the Tribunal. Mrs Hussain informed us when we enquired what she was asking us to order. She said she wanted us to order the case to be re-heard by a different Industrial Tribunal, so that she had a chance to be represented, to be bring before that Tribunal all the evidence that was relevant, including the evidence that the Chairman had excluded from the first hearing. We are not able to do this. We cannot order a re-hearing of a case on the application of a person who has lost it unless we are satisfied there is an error of law. The points which are made by Mrs Hussain are not errors of law. They are either questions of relating to the facts, which we have no power to re-decide, or they relate to the exclusion of documents, which, in our view, were not wrongly excluded. The statistical and other documents could conceivably be relevant to a claim of indirect discrimination, but it is clear to us from the originating application and the grounds of resistance, that the whole case proceeded on the basis of a complaint of direct discrimination, not on a complaint of indirect discrimination. There was no error of law on the part of the Chairman of the Tribunal in excluding those documents.

The position is, in brief, that the only issue before the Tribunal is whether Mrs Hussain was directly discriminated against on the grounds of race by being removed from her position on the grounds of race. The Tribunal decided, having heard all the evidence, that that was not the reason she was removed. They found it was a different reason. It related to what was described as a "deceptive CV". That is not a racial reason. It was for the Tribunal to decide whether to accept that evidence as the reason. They did that. There is nothing that we can do about that, because it is not a legal error to accept evidence from one side rather than the other. That is the function of the Tribunal when there is a factual dispute. For all those reasons, there is no point in this case proceeding to a full hearing because the result could not be any different. We dismiss the appeal.