Sawyerr v London Borough Of Southwark & Ors [1998] UKEAT 238_97_1303

EAT
Sawyerr v London Borough Of Southwark & Ors
[1998] UKEAT 238_97_1303 · 1998-03-13
MR JUSTICE BELL : This is an ex-parte preliminary hearing in respect of two appeals by Miss Victoria Sawyerr, one against a decision made after a hearing on 29 August 1997 by an Industrial Tribunal, in fact a Chairman sitting alone at London (South), the other against decisions made after a hearing on 17 October 1997 by an Industrial Tribunal of three members held at London (South) also. It is convenient to deal with the appeal against the later decisions first. All matters arise out of the Appellant's employment as a teacher at Heber Primary School in Southwark. The disputes leading to the proceedings arose at the school where there were problems of low staff morale, high staff turnover and poor results, as the Tribunal found.The Appellant, Ms Sawyerr, was born and brought up in Blackpool. She has a white Scottish mother and black African father. She describes herself, the Industrial Tribunal said, as Black African and her ethnic origin, as claimed by her, was acknowledged by the Respondents in the case. She started work at the school in 1988 and had a sound reputation as a teacher. Mrs Padmore, who is also black, was appointed head of the school in September 1995.The First Respondent was Southwark Borough Council which is the local education authority for the area containing the school. The second Respondents were the Governors of the school which are a corporate body, who appoint and remove teachers at the school. The third Respondent, Mr Mott, was the Chief Education Officer for the Authority.The Industrial Tribunal in extended reasons for its decisions went into the history of relevant events in considerable detail, judging the merits and faults on all sides as they went through the story. For today's purposes it is relevant to refer to some only of the findings.In September 1995 some children in a class taught by a Mrs Arinze told the Appellant that Mrs Arinze had shown them a question in an important six-year reading test which they were about to take. Their account was confirmed by some parents. The Appellant and another black teacher went to Mrs Arinze's room and removed the exam papers, copied them and took them to Mrs Padmore. Mrs Padmore warned Mrs Arinze, but she also warned the Appellant about what she saw as her unprofessional conduct in removing papers from another teacher's room.The Industrial Tribunal found that Ms Sawyerr was incensed at this warning. In her view she had done nothing wrong. Indeed, she had exposed cheating and her reward was to be disciplined. She was even more incensed that there was no appeal against this gross injustice to her, as she saw it to be.The Industrial Tribunal found that upon that experience Ms Sawyerr began to build a conspiracy theory which assumed fatal proportions and led to her loss of employment. Anyone who subsequently made any finding against her, or who was not wholly in her favour, was added to the list of conspirators. The Tribunal found that the Appellant was a headstrong lady whose every thought had to be spoken or written down. Her union sprang to her defence. The incident assumed an importance out of all proportion, as the Industrial Tribunal saw it.The matter escalated. Parents became involved. Mrs Padmore took further disciplinary action against the Appellant for allegedly arranging a meeting with parents without permission. There were various discretionary hearings and appeals and warnings and a final written warning to the Appellant, Ms Sawyerr.The Industrial Tribunal specifically said that attention should be drawn to the actions of the Appellant:
"The letters she wrote were aggressive and at times abusive. She made it perfectly clear that she regarded Miss Arinze as a cheat and Mrs Padmore as a liar. It was clear that anybody who disagreed with these views was branded a conspirator."
The Industrial Tribunal went on to say that the situation was desperately unsatisfactory, which was a moderate description, in our view, of the situation which arose. Finally, there was a vote of the Governors to remove the Appellant from the school, which the Industrial Tribunal held obliged the Authority in law to dismiss the Appellant, although the Governors or some of them did not realise that that was the necessary consequence of their vote. Nevertheless, the Authority tried to find the Appellant another teaching post. It was unsuccessful and paid her redundancy money. The end result was that Ms Sawyerr left the Authority's employment with a statutory redundancy payment on 31 August 1996 and in a state, as the Industrial Tribunal found, of some anger. She wrote abusive letters to the officers of the local authority, the Industrial Tribunal found, and declined to take any part in efforts to re-deploy her.The Industrial Tribunal found a number of faults in the Authority's approach to the disciplinary proceedings against the Appellant and found that it had unfairly dismissed the Appellant, although it also found much to blame in the Appellant's own conduct. It ruled out reinstatement in the light of what it called "disgraceful letters written by the Appellant" and found that re-engagement was either not legally possible or, in any event, not something which it would order. So the Industrial Tribunal went on to consider compensation. It reminded itself of the 1996 Act and then, at paragraph 54 of its decision, started as follows:
"The way we look at that loss is dictated by the decision in the famous case of Polkey v Dayton Services Ltd . We must look at the Applicant's conduct up to the time of dismissal and decide whether it is just and equitable that she should have the whole of her loss."
It went on to say that the letters which she had written and the confrontational attitude which she took amounted to a matter which contributed considerably to her removal by the Governors and in recognition of that, they would under Section 123(1) reduce any award of compensation by 50 per cent.The first ground of appeal, ground (a), challenges that finding and Mr O'Dempsey's skeleton argument elaborates on the matters of law, in addition to alleged perversity of judgment, upon which he says that reduction can be challenged.We say no more at this stage than that it is not easy to see just what the case of Polkey might have had to do with the exercise there carried out in deducting 50 per cent. Although the Tribunal refers to the Applicant's contribution it did not, in fact, expressly refer to Section 123(6) of the 1996 Act which deals with deductions from compensation in the light of an Applicant's conduct. The deduction seems to have been made on the basis that it was just and equitable, which is a factor to be considered under Section 123(1). With those, among other factors in mind, we consider that the ground of appeal as elaborated upon in Mr O'Dempsey's skeleton argument challenging the 50 per cent deduction, is arguable.The position may be more difficult with regard to the challenge to the taking into consideration of letters which Ms Sawyerr wrote, because it is said that whatever is said about the letters which she wrote after her dismissal, she did not write any abusive ones before it. That is a matter which, in our view, should continue for argument at the full hearing.We would only add that it might worth looking at Simrad v Scott [1997] IRLR 147, particularly at page 149 paragraph 6, where Lord Johnston in the Employment Appeal Tribunal dealt with the approach to Section 123, which brings us to the next point of appeal which relates to the fact that, after making the 50 per cent deduction for the Appellant's conduct, the Industrial Tribunal went on to consider Section 124(4) of the Act and the duty of an Applicant for unfair dismissal to mitigate her loss. It made some comments which might be relevant to that consideration before finding that a further reduction of 25 per cent compensatory order is justified.We have considered the proposed ground of appeal so far as that reduction is concerned and the further arguments which Mr O'Dempsey has contained in his skeleton argument, and particularly the case of Pearge , which said that any mitigation should not be judged on a percentage basis. Whether or not there have been further authorities which have breathed on that or not, we are not in a position today to say, but certainly it is a matter which merits argument. In Simrad v Scott Lord Johnston had something to say about the stage at which considerations of what was just and equitable should come in to the assessment of damages and that is why we have mentioned that.So we propose to allow the appeal to go ahead on grounds (a) and (b) in the Notice of Appeal. There is one additional complication which is not raised in the Notice of Appeal, but which we have raised with Mr O'Dempsey this morning. It appears from the very last paragraph of the October decision that:
"Following our decision the parties agreed the Applicant's remedy and no order is therefore necessary from us."
Therefore, it occurred to us that whatever the Industrial Tribunal had decided or been minded to decide about unfair dismissal and the amount of compensation, the claim for unfair dismissal was settled and compromised in any event.Mr O'Dempsey has taken some instructions from his client this morning. It appears from those instructions that a stage was reached where the Industrial Tribunal had verbally announced the general nature of its decision, started to do some calculations, and then invited the parties to retire to see if they could settle the matter which they promptly did.We are really today in no position properly to judge the strength of any argument which the Respondents might raise on the basis of compromise, if they do. What we propose to do, when we give directions, is direct that both sides be at liberty to file affidavit evidence about precisely what did happen and to direct that any Chairman's notes of any matters relating to the ultimate compromise be produced as well.Ground (c) in the grounds of appeal, in relation to the October decision, challenges the Industrial Tribunal's finding and decision dismissing the Appellant's claim for discrimination on the grounds of race. The Industrial Tribunal dealt with the facts in relation to the complaint of race discrimination at paragraphs 42 - 45 as follows:
"At about the time of Ms Sawyerr's suspension a young child who was under the care of Miss Batty and a helper left the school [Miss Batty being another teacher or employer at the school] and was found wandering in a busy road. The child's parent brought this to the attention of the school and the matter was investigated. Profuse apologies were made to the parents and an examination of school procedures produced amendments and improvements. Ms Batty was given an informal warning. Consideration was given to formal disciplinary proceedings against her. The advice of Val Brown was sought and it was decided not to bring proceedings.
The reasons given for this were two-fold. First this was no more than an act of carelessness and had no deliberate intent. Miss Batty was visibly upset at her neglect. Also disciplinary proceedings against Ms Sawyerr and Mr Forde were in the pipeline and this was absorbing a great deal of the time of the senior staff and Governors. In those circumstances, an informal warning was sufficient.Unfortunately nobody considered that the two who had been disciplined were black and Miss Batty was white. Both Mrs Padmore and Miss Brown are black. They told us that race was never a consideration in this. Indeed Miss Brown did not know the race of Miss Batty. The Applicant's criticism in this is that the difference in race was known to Mrs Padmore and an experienced personnel officer like Miss Brown should have enquired as soon as it became evident that a difference in treatment was being contemplated.Ms Sawyerr did not complain at the time and the first time this matter was raised was in her Originating Application some nine months later."At paragraph 57 of its decision the Industrial Tribunal turned to its conclusions on the complaint of race discrimination as follows:
"There was clearly a difference in treatment and we therefore consider the explanation offered by the Respondent. We are surprised that when asking for advice on this matter Mrs Padmore did not see fit to tell Miss Brown of the difference in race between Miss Batty, the Applicant and Mr Forde and we are equally concerned that Miss Brown, an experienced officer did not ask about that because a comparison of treatment arose and that is fundamental to any action under the Discrimination Act. We further note that the Respondent did not reply to the race relations questionnaire. However, we accept the Respondent's explanation that the situations in the two cases were different. We have observed the race of all the persons involved and listened very carefully to the evidence. We accept their explanation that race did not play a part in this. The facts of the incidents as they are mentioned are realistic and convincing and we therefore dismiss the complaint of race discrimination."
The ground of appeal put forward in relation to that is, in essence, that the Industrial Tribunal erred in law in that it acted perversely in concluding that there was no race discrimination.Mr O'Dempsey's skeleton argument has developed that ground of appeal considerably. It raises four principle matters as it appears to us. Firstly, that the Tribunal did not direct itself to the guidance in King v Great Britain China Centre [1991] IRLR 513 ; secondly, that it failed to consider why no reply had been given to the Race Relations Questionnaire; thirdly, that it introduced an irrelevant consideration in considering an observation of the race of all the persons involved as a relevant factor, and fourthly, that it did not take account of the lack of explanation offered by the Respondent for the treatment meted out to the Appellant. It failed to consider the events leading up to the dismissal. Mr O'Dempsey this morning has elaborated on those arguments by saying that his primary criticism is that there was no consideration by the Industrial Tribunal in its narrative of fact as it went along of what explanation had been put forward for what happened and whether it was accepted or not. He suggests that the question of discrimination was taken wholly in isolation from all the other issues in the case and therefore not seen in its proper context.Taking the first and fourth points first, it is quite clear to us from the Industrial Tribunal's reasons that it carefully considered the events leading up to dismissal and the Respondent's explanation for the treatment of the Appellant and the explanation of why Miss Batty was treated more leniently in relation to her disciplinary matter than the Appellant was, in their completely different disciplinary positions and their completely different reactions to disciplinary proceedings, as the Industrial Tribunal judged them to be. The Industrial Tribunal specifically said that it accepted the Respondent's explanation about Miss Batty's case and, in our judgment, it was plainly entitled to do that.With regard to the second point, the Industrial Tribunal did consider the failure to reply to the questionnaire and we do not believe that it was incumbent upon the Tribunal to elaborate on it any more than it did.With regard to the third point, in our view the Industrial Tribunal was entitled to observe the race of those concerned, among all the other matters which it was entitled to take into consideration, in judging the evidence which was given.We do not think that the Industrial Tribunal's decision in relation to race discrimination can be justifiably criticised on the basis that it did not pause at every instance of fact which it found, to comment on the validity of any explanation.We see no merit in the argument that it considered race discrimination in isolation from the events which related to unfair dismissal.It was clearly sensible for the purposes of clarity to set out the facts in relation to the allegation of race discrimination in specific paragraphs of the Industrial Tribunal's decision and then ultimately to set out the conclusions in relation to the allegation of race discrimination in a separate paragraph, so there would be no doubt about just what the Industrial Tribunal was taking account of in reaching its decision.We see no merit in the grounds of appeal or the arguments put forward to challenge the Industrial Tribunal's decision to dismiss the allegation of race discrimination and that third ground of appeal relating to that part of the Industrial Tribunal's decision will be dismissed at this stage.We come then to the Chairman's decision in August 1997. The Applicant's first Originating Application was undated, but received by the Industrial Tribunal on 11 October 1996, some six weeks after her dismissal. It alleged "unfair redundancy, race discrimination plus breach of contract". It made no mention of sex discrimination in box 1 and there is nothing whatsoever in box 12 which could hint at an allegation of sex discrimination in our view. The race discrimination allegation was out of time, but on 17 October 1997 the Industrial Tribunal held that it was just and equitable that it be tried nevertheless, with the allegation of unfair dismissal which was in time.It appears that in the course of earlier interlocutory matters the Appellant argued that her Originating Application included a claim of sex discrimination, but this was not accepted, quite rightly as we have already indicated in our view, so the Appellant presented a further Originating Application dated 26 March 1997 which alleged "sex discrimination, victimisation, unfair dismissal" in box 1 and adverted to matters which were capable of amounting to sexual discrimination in box 12. The Originating Application was out of time so the Chairman sitting alone held a hearing on 29 August 1997 to decide whether he should exercise his discretion so as to hear the complaints, including sexual discrimination, nevertheless. His decision, unanimous he said, as of course it was bound to be, since there was only person sitting at the time, was that the Tribunal did not have jurisdiction to hear the Applicant's complaints of unfair dismissal and sex discrimination. The extended reasons explained the nature of the complaint of unfair dismissal. They adverted to the allegation of sexual discrimination. They pointed out that the effective date of termination of the Applicant's employment was 31 August 1996, and that the new complaint was dated 26 March 1997 and presented to the Tribunal on 7 April 1997.They went on to consider extension of time, as it is convenient to express it, in relation to the complaint of unfair dismissal and in relation to the complaint of sex discrimination. Then at paragraph 4 the Chairman said:
"The Applicant admitted that the unfair dismissal claim duplicated a complaint that was already before the Tribunal and had been listed for hearing. The present application for unfair dismissal was presented outside the three month time limit and as an application had already been presented and was being heard it was reasonably practicable for a complaint to have been presented in time."
There is no challenge to that and it had no practical effect in any event. Paragraph 5 of the decision reads as follows:
"The Applicant went to a firm describing itself as employment law specialists in October 1996 and completed an application to the Industrial Tribunal which was dated 11 October 1996. This did not refer to sex discrimination and there was no reference to sex discrimination in the employment law specialists' letter to the Respondent Authority of 25 October 1996. The Applicant has already argued in her existing proceedings that the application included the claim for sex discrimination but this was not accepted. The Applicant has therefore made a further claim out of time of sex discrimination. The Applicant did take advice at the time and there is no reason why, had the Applicant wished to claim sex discrimination that could not have been clearly expressed in her original application of 10 October 1996. I find that the prejudice that would be caused to the Respondents having to deal with a serious allegation of this nature so long after the event outweighs the prejudice to the Applicant in refusing to extend time. I do not find it just and equitable to extend the Applicant's time in respect of the sex discrimination claim."
The Chairman's summary of the relevant dates and of relevant form of documentation, was correct. We have been told that there were documents between the parties raising the issue of sex discrimination long before that Industrial Tribunal hearing in August 1997, in fact, going back to 1994. The argument put forward on behalf of Ms Sawyerr today in challenging the Chairman's decision is that the Chairman failed to conduct a balancing exercise of the factors that might prejudice the Respondent. Had he done so he would have found that the Respondent was aware of the complaints long before. A general statement that prejudice would occur due to delays is insufficient unless it is clear why it would arise. The Chairman failed to take into consideration the extent of the matters which were going to be litigated in any event and in short, did not balance all the matters which he should have done.In our view the Chairman did do a balancing act. He was entitled, in our view, to infer quite unnecessary additional prejudice to some extent by any delay beyond the normal time limits for the complaint of sexual prejudice, particularly as the original sexual harassment was said to be as long ago as 1994, although the victimisation complained of was more recent. He was entitled to attach weight, in our view, as he clearly did, to the fact that although the Appellant had some advice in October 1996, the time when she put in her first Originating Application, she did not see fit to raise any question of sex discrimination.A Chairman in the position of this Chairman has very wide discretion to do what he considers to be just and fair in all the circumstances and we see no sound reason for interfering with this Chairman's exercise of his discretion on this occasion. It follows that the appeal against the August 1997 decision must be dismissed at this stage also.We have given some directions along the way in relation to the 50 per cent and 25 per cent matters. Skeleton arguments on both sides at least 28 days before the hearing.