Demeshghi v Bank Melli Iran [1996] UKEAT 179_93_1801

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1996] UKEAT 179_93_1801

Case No Appeal No. EAT/179/93

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Demeshghi

Bank Melli Iran

Date 18 January 1996

MR JUSTICE TUCKER : We recognise that the appellant has only had short notice of the Legal Aid Board's decision, but even so there is time for her to have made application to the Board for them to review it, and she appears to have done so but without effect. We also bear in mind that this is a long-running saga and we take the view that it is high time that this appeal is disposed of. We also take note of the fact that the appellant represented herself at the hearing of the Industrial Tribunal from which this appeal is brought, so she is fully familiar with the facts of her case, and has shown herself able to present it. In those circumstances we refuse the application for the adjournment and this appeal must proceed today.

MR JUSTICE TUCKER : This is an employee's appeal from a decision of an Industrial Tribunal sitting at London (North) given on 20th January 1993 following a four day hearing the previous October and December. It was a reserved decision whereby the tribunal unanimously found that the appellant was not unfairly dismissed and that her application therefore failed.

In her originating application the appellant Soraya Demeshghi made four complaints:

Unfair dismissal.

Harassment.

Sexual discrimination.

Racial discrimination.

and in box 10 she gave the full details of her complaint in these terms:

"I have been unfairly dismissed by my former employers because of my refusal to wear a scarf and my refusal to have an affair with [ the man she names ]. I was sexually harassed persistently during the course of my employment."

This was subsequently amended.

The respondents admitted that the appellant had been dismissed but they alleged that it was on the ground of misconduct which they particularised in a number of grounds. They stated that the matter of wearing a headscarf was not raised by them, either at the disciplinary or appeal domestic hearings and was only mentioned by the appellant herself at the appeal hearing.

The question of the wearing of headscarves undoubtedly did arise during the hearing of the appellant's complaint of racial discrimination. That complaint was heard by an Industrial Tribunal also sitting over four days at the end of 1991 and it was dismissed. The hearing giving rise to the present appeal was solely concerned with the claim of unfair dismissal.

The appellant who has been in England for 22 years had been employed by the respondents, the Bank of Melli Iran, as a bank clerk for a period of 13 years between May 1977 and 6th June or July 1990 when her employment terminated. She was employed first at the City branch in London and latterly at the branch in Kensington.

The appellant appeared in person before the Industrial Tribunal, so she is very familiar with the case, as one would expect she being the complainant, and also familiar with its presentation. She was granted Legal Aid for the purposes of prosecuting the present appeal and solicitors and counsel were assigned to her. Only a few days ago the Legal Aid Certificate was either withdrawn or an embargo was placed on any further work under the Certificate. The appellant therefore appeared in person before us. Her first application was for an adjournment in order that she might try and obtain legal representation. This application was opposed by Counsel for the respondents, Mr Hughes, who had also appeared at the Industrial Tribunal. For reasons which we gave at the time, we refused the appellant's application and proceeded to hear her appeal. We believe that we have correctly identified the point of her argument, that we have allowed her to develop it fully, and that we have been able to ensure that justice has been done to her case.

It is important that the appellant should understand what our powers and functions are. We cannot conduct a re-hearing. We do not normally hear evidence. We cannot therefore assess the credibility of witnesses and we cannot make findings as to the facts; those are matters exclusively for the Industrial Tribunal. The only point which we can consider and upon which we can grant an appeal is a point of law. This includes a suggestion, as in the present case, that the decision of the Industrial Tribunal was perverse. The reason submitted for that is contained in the first ground of appeal in these terms:

"The Industrial Tribunal did not take into account or sufficiently into account that the sole reason why the Applicant was dismissed was that she failed or refused to wear a head scarf so as to conform to the edicts of the Islamic revolution in Iran."

Those grounds were amplified in an affidavit sworn by the appellant, and in particular at paragraph 4 of that document where she says this:

"My case has always been that I was dismissed for refusing to wear a head scarf as desired by the bank in order to keep the people in Teheran with their religious laws happy. Much of what the bank said about my being dismissed for a poor work record and unsatisfactory conduct was untrue. Certainly, the allegations about my work were wholly unjustified. They were allegations made to provide the bank with an explanation for sacking me without the embarrassment of probably adverse media publicity if they had to admit to the true reason for my dismissal."

At the outset of this appeal we were troubled by the fact that there was no mention of the wearing of headscarves in the tribunal's decision, save for a reference in paragraph 4 in relation to the earlier proceedings which we have already mentioned. Another matter which troubled us was a sentence which appeared in paragraph 7 of the Chairman's Notes of Evidence, where she said this:

"At all times it was made clear to the Applicant that the issue regarding the headscarf had been fully explored at previous hearings and not pertinent to the issue as to whether or not she had been unfairly dismissed."

There was an earlier reference in the same notes at paragraph 3 to Mr Hughes, Counsel for the respondent opening his case and at the conclusion of his opening he stated that the issue of the headscarf was not before the Industrial Tribunal. That issue had been determined at a previous Industrial Tribunal hearing. Therefore we listened attentively to what the appellant said in relation to this. The sole question in her appeal being whether she was prevented from raising this matter before the tribunal. Of course the questions of racial or sexual discrimination were not before the tribunal as giving rise to separate remedies. They had already either been disposed of or were not being pursued. But it might well have been relevant for the tribunal to receive evidence about the insistence or otherwise on wearing headscarves if it was being suggested that this was the real ground for the dismissal. The appellant suggested that she was not allowed to give evidence about this or advance her claim along those lines. Mr Hughes, on the other hand, has told us that she was allowed to do so, and his instructing solicitor, Mrs Simpson (as she now is) has sworn an affidavit which is also of assistance. Moreover, there are other references in the Chairman's notes which make it clear that this matter, though not at the forefront of the appellant's case, nor obviously at the forefront of the minds of the members of the tribunal or their chairman, was certainly raised before them. It featured in questions asked by the appellant in cross-examination of the respondent's witnesses, in evidence which the appellant herself gave and in a number of documents which she placed before the tribunal.

It is to be noted that in paragraph 29 of their decision the tribunal expressly make a finding as to the credibility of witnesses. It is a clear finding in these terms:

"The Members of the Tribunal preferred the evidence of the Respondent's witnesses where it differed from that of the Applicant. The Tribunal did not find the Applicant to be a credible witness."

And in the following paragraph 30, the tribunal set out with equal clarity their findings as to the reason for the dismissal. They say:

"30 The Tribunal finds as a fact on the evidence that the Applicant was dismissed by reason of her conduct pursuant to section 57(2)(b) of the Act. The Tribunal finds as a fact on the Respondent's evidence, that the Applicant did behave on 11 May 1990 in the manner in which the Respondent's witnesses said that she behaved. Added to this the background and the warning letters that the Applicant had received, the Respondent decided to dismiss the Applicant for the conduct as alleged."

It is unfortunate that there was no specific mention in the decision of the question of the wearing of the headscarf. It having been raised by the appellant as we are sure it was, it would have been better if the tribunal had made some reference to it. But the fact that they omitted to do so, does not mean that they disregarded the evidence. We return to another passage in the Chairman's notes where at the conclusion to paragraph 7 she say this:

"It was quite clear to the members of the Tribunal on the evidence that the Applicant's dismissal was on the grounds of the Applicant's conduct and had nothing to do with the wearing of the headscarf. It is clear from my notes that the Applicant was not precluded from giving evidence regarding the wearing of the headscarf."

We are satisfied from what we have heard that over this four day hearing a wide range of issues was raised, some of which were relevant and some were tangential. In these circumstances it is perhaps not surprising, though we think it would have been desirable to have done so, that the tribunal did not make a finding on every one of them. In the end, however, the tribunal came to a clear conclusion as we have already said in paragraph 30 of their decision.

The allegation of perversity is one which is never easy to establish. We would require very clear material upon which to make such a finding before we would be prepared to do so. There is no such material here. This was not a perverse decision at all. It was one which the tribunal were perfectly entitled to reach on the evidence which was before them. We are satisfied that the appellant was not precluded from putting before the tribunal the argument which she wished to raise on the question of headscarves. Accordingly there is no point of law upon which we can help the appellant, and this appeal must be dismissed.