Ali v Cecil Jones High School [1998] UKEAT 291_97_0302

EAT

Ali v Cecil Jones High School

[1998] UKEAT 291_97_0302 · 1998-02-03

JUDGE C SMITH QC :

This is is an application which has been very courteously made to us today by Mr Panford on behalf of Mr Ali for leave to proceed to a full hearing of Mr Ali's appeal against the decision of an Industrial Tribunal after a hearing held over four weeks in March and November 1996, of which extended reasons were sent to the parties on 20 January 1997, whereby the Industrial Tribunal held unanimously, the Chairman sitting with two Members, of course, that the Applicant's complaints of race discrimination and unfair dismissal should be dismissed.

We should emphasize that we have read with care the very lengthy notice of appeal, including a document called "Comments on the decision", which has clearly been prepared by the Applicant himself. We have also read the chronology and the skeleton argument and we have further taken into account the specific points that were made by Mr Panford on behalf of the Applicant this morning. We have reminded ourselves that if the Applicant can show that there is any arguable ground of appeal then the matter should be allowed to proceed to a full hearing.

The heart of the complaint that is made to us today is that it is submitted that the Tribunal has made flawed findings in relation to credibility of witnesses and it is submitted that had they properly assessed the evidence as it was put to us it would have been possible, as the submission was made, for them to have come to the conclusion of prima facie evidence of discrimination which was not displaced by any plausible explanation to the contrary by the Respondents.

Those are the kind of submissions that were made. They were the burden of the submissions that were made to us today. We will have to consider those matter in the course of this judgment. We must set out the background to an extent so that the matters which we have to consider can be put in their proper context.

We should say straight away that this is a very unfortunate case for all concerned, including Mr Ali. The bare bones of the matter are enough to indicate that. They are taken from the detailed facts as found by the Industrial Tribunal over many paragraphs in their extended reasons and it is important that everybody should understand that what we say about those very detailed findings is no more than a summary and if the matter were to go further or for any other reason reference should be made to those findings for their full effect because what we are saying is no more than a summary. We should add that, in our judgment, the decision and the way in which it is expressed bear all the hallmarks of being a very careful and detailed and well-reasoned decision.

Put as shortly as possible and bearing in mind what we have already said about the need to look to the Industrial Tribunal's decision for the full findings which they made in relation to the matter, the position is that Mr Ali had been employed as a science teacher at Cecil Jones High School for some 21 years when he was dismissed for gross misconduct in January 1995. On the findings of the Industrial Tribunal, almost all of which are disputed by the Applicant, by October 1993, due to an increasing volume of complaints from parents and pupils, unfortunately, and a lack of co-operation with his head of department, with the agreement of Mr Ali's then very experienced NUT representative, Mr Ward, a period of review was undertaken of Mr Ali's teaching. Most unfortunately the Applicant's performance was very poor so there had to be a second period of review. This did not improve the Applicant's performance on the findings of the Industrial Tribunal and all of these matters to which we refer, of course, are the findings of the Industrial Tribunal.

In May and June 1994 there was a disciplinary hearing before the Staff Committee, with the result that the Applicant was given a first written warning in July 1994. In September 1994 the Applicant issued his first complaint complaining of racial discrimination. There followed a further period of monitoring while the Applicant's appeal against the warning was pending. Matters came to a head on 11 October 1994 when the Applicant had a confrontation with the Head, Mr Hellen, and accused him of being a racist in front of a class of pupils, at the same time refusing to allow him to monitor the lesson that the Applicant was taking. An investigation of this incident followed, carried out by a member of the Essex Personnel Services, Mrs Gillard. Charges against the Applicant to be investigated were those set out at paragraph 41 of the Industrial Tribunal's reasons, namely:

"a Inappropriate behaviour and language towards the Head Teacher in front of the pupils. (This referred to the incident on 11 October) and

b inappropriate and unprofessional response towards a programme of support and monitoring as laid down by the governing body.

He was warned that the allegations, if substantiated, could constitute gross misconduct and that disciplinary action could result in dismissal."

The Applicant refused to co-operate with Mrs Gillard's enquiry. Disciplinary proceedings followed before the Staff Committee in December 1994 at which the Applicant was represented by Counsel. The allegations were found proved and to amount to gross misconduct. The Staff Committee notified the Applicant by their letter of 22 December 1994 that he was to be summarily dismissed with effect from 23 December 1994 and that he had the right to appeal. He did appeal and solicitors on his behalf took the point that it was only the governors who could implement the Staff Committee's decision to dismiss.

The Industrial Tribunal made important and, in our judgment, correct findings as to the validity of the Staff Committee's decision to dismiss in paragraphs 50 to 55 of the decision. In particular, they rightly held that there was no legal impediment to the prosecution of the appeal against the decision arising from the fact that the Staff Committee rather than the governors had implemented the decision. The Appeal Committee met on 18 January 1995 and, after a hearing in which the Applicant deliberately took no part, the decision to dismiss the appeal was upheld by the Appeal Committee and approved by the governors on 23 January 1995. The Industrial Tribunal rightly held, therefore, that the dismissal took place on 24 January 1995. There followed in March 1995 the Applicant's second originating application complaining of racial discrimination, victimization and unfair dismissal, and a list of 59 matters were relied upon by the Applicant as evidencing racial discrimination and victimization. In paragraphs 60 to 75 of its decision, the Industrial Tribunal carefully considered the Applicant's first complaint of racial discrimination. We need do not more than summarize their approach. They concluded that the Respondent's evidence was true and that the monitoring and support programme was properly put in place due to proper and professional concerns about the Applicant's capability. They rejected the Applicant's case that it was Mr Hellen alone who found fault with him. They were particularly impressed by the evidence of Mr Moreton, who had been head of science until 1992, and by the evidence of the two NUT officials, Mr Glazier and Mr Ward. They expressed their conclusion at paragraph 75 in this way:

"In our judgment, the first application must fail. It is true that there was less favourable treatment, in that monitoring and warnings occurred, but this was, in our judgment, entirely due to the Applicant's capability, and had nothing whatever to do with his race. The complaint about being refused access to his files refers to a policy, which was formerly the policy of Essex Education Authority, and then of the Respondents, which applied to all employees of whatever race, and was not discriminatory against the Applicant."

The Industrial Tribunal then dealt with the Applicant's second originating application of racial discrimination, victimization and unfair dismissal. They made their findings, having considered the matter between paragraphs 76 and 83. They made their specific findings in relation to that second originating application based upon racial discrimination, victimization and unfair dismissal at paragraphs 84 to 86 of their decision, particularly at paragraph 84, and those paragraphs should be incorporated in this judgment. They then carefully considered an allegation of disparity of treatment, which they rejected at paragraph 90. They noted at the end of their reasons that they had had to impose a time limit on both sides during the hearing of the Industrial Tribunal because the Industrial Tribunal took the view that it was necessary to control the Applicant's presentation, the Applicant being in person before the Industrial Tribunal, and to be fair an equivalent time-limit was imposed on each side.

By an appendix to their decision, the Industrial Tribunal went on to consider in detail and rejected altogether, the 59 separate allegations made by the Applicant, which he asserted were indicative of race discrimination.

It is against that background that we have considered the material put before us today by the Applicant in support of his submissions that this matter should go to a full hearing of appeal.

We will deal, as we think it right that we should, with the grounds set out in the notice of appeal.

(a) , which is in these terms:

"the event leading to my summary dismissal for gross misconduct was my accusation against the Headteacher of racial harassment, that is unlawful racial discrimination. It is a matter of law whether such an accusation is sufficient to lead to summary dismissal with the loss of benefits including access to pension rights. If this were indeed the case, then the Race Relations Act 1976 would be undermined in that victims of unlawful racial discrimination would be discouraged from making such allegations and pursuing their claim."

With regard to that ground, the Industrial Tribunal found that in accusing the headmaster of being a racist, the Applicant was making a groundless accusation and was improperly involving pupils in his refusal to co-operate with the support and monitoring programme put in place by the headmaster and that he was thereby rightly and fairly found guilty of gross misconduct by the Staff Committee and by the Appeals Committee. It is clear from the findings of the Industrial Tribunal that the Applicant was not dismissed because he had accused the head of being a racist but because of the manner and the circumstances in which he had done so, ie, by improperly involving pupils in a dispute he had with the headmaster in circumstances where he was unreasonably and unprofessionally, on the findings of the Industrial Tribunal, obstructing the head's legitimate attempt to monitor the Applicant's teaching. In our judgment there is no error of law on this ground on the Industrial Tribunal's findings relating to the fairness of the Applicant's dismissal and, indeed, with regard to race discrimination.

With regard to the remaining items set out in the notice of appeal, with regard to (b), in our judgment the Industrial Tribunal carefully considered this aspect of the case and made unassailable findings of fact with regard to it. They rejected the Applicant's case on this point, particularly at paragraphs 62 to 73 of their decision. No purpose would be served by rehearsing the careful and detailed findings there made.

With regard to (c) of the notice of appeal, the Industrial Tribunal made specific finding of fact, particularly at paragraphs 69 and 94.2 of their reasons, as to why they preferred the evidence of the Respondent's witnesses to that of the Applicant. There is no substance in the contention that the Industrial Tribunal took "a fixed view" about whom or what to believe. It is clear that they reached their decision on rational grounds after a careful analysis of the evidence. There is nothing in this ground and we should add here that, to the extent that arguments were addressed to us today that the findings of the Industrial Tribunal in relation to credibility are in some way flawed or inconsistent, we find that we must reject that argument since, in our judgment, on a careful reading of this decision, the Industrial Tribunal's findings on credibility were properly and carefully made and based on their analysis of the evidence which, as the finders of fact, they had to make. It was their duty to assess and evaluate the credibility of the witnesses and, in our judgment, there is no possible ground of appeal on this basis.

With regard to (d) in the notice of appeal, which is in these bald terms:

"no tribunal, properly directing itself, could come to the attached decision on the evidence before it."

We must reject that submission completely in the light of the very careful findings of fact the Industrial Tribunal made which they were amply justified in making on the evidence which was before them.

We then turn to consider the arguments in the skeleton argument and those which were before us this morning. Looking at the skeleton argument first of all we have already made our findings relating to the allegations of inconsistency or flaw in the findings of the Tribunal relating to credibility. We must reject the suggestion that in some way the Industrial Tribunal used immoderate or intemperate language. There simply is no indication at all in the way in which the Industrial Tribunal's reasoning is expressed of any such immoderate or intemperate language.

Dealing with the specific matters as set out in the skeleton argument, with regard to paragraph 51 which relates to a complaint concerning the finding that the Applicant refused to take part in the appeal hearing by Appeals Committee, which eventually took place on 18 January 1995, the Industrial Tribunal has done no more in this paragraph than set out why they took the view that it was perfectly proper for the appeal to go ahead without it amounting to an acceptance of the attempt to implement the decision on 23 December and having stated that they concluded:

"In the event, the Applicant refused to take part in the appeal hearing by the Appeals Committee, which eventually took place on 18 January 1995."

This is no more than a correct statement of fact based on the events that took place, on the findings by the Industrial Tribunal and cannot give rise to any ground of appeal.

The finding in paragraph 78 that the grievance was lodged solely as a delaying tactic related to a grievance which the Applicant had lodged against the headteacher, Mr Hellen, and was dealt with by the Industrial Tribunal at paragraph 78. The Industrial Tribunal found that that grievance had been lodged according to the Applicant's own evidence with the sole intention of stopping the monitoring and the meeting of 29 September 1994 completely and the Industrial Tribunal concluded in the light of that and in the context of the whole evidence which they had in front of them, that the grievance had been lodged solely as a delaying tactic. In our judgment they were entirely justified to reach that conclusion, it was a matter for them.

Then there is a reference to paragraph 94 where the Industrial Tribunal state very clearly in our judgment their particular findings with regard to the credibility of the Applicant. They express themselves in this way:

"Where there is a material conflict of evidence between the Applicant and another witness, we prefer the evidence of the other witnesses. That is not because we believe the Applicant has intended to mislead us. However, we believe that he has so misled himself, that his perceptions of the circumstances surrounding the sad ending of his career are unreliable."

In our judgment that was entirely within the Industrial Tribunal's province to make such a finding and cannot possibly be criticised.

There are then a number of points raised in paragraph 3 of the skeleton argument relating to an overall submission that the findings of the Industrial Tribunal, particularly with regard to the specific findings they made with regard to all the 59 matters which they considered in the appendix were, as it is put in paragraph 3 of the skeleton argument, against the weight of the evidence and really, in our judgment, that is what this submission, the second part of Mr Panford's helpful submission to us this morning, came to because he, himself, put it in this way, namely that had they properly assessed the evidence, it would have been possible to have come to a conclusion of prima facie evidence of discrimination, which was not displaced by any plausible explanation to the contrary by the Respondents. In our judgment, that is indicative of the fact that this appeal is really, although it has been well dressed up by Mr Panford, an attempt to re-open and re-argue matters that have already been decided properly and carefully, adversely to the Applicant, at the very long hearing before the Industrial Tribunal. What we have to say in relation to the detailed points that were taken should be read in the light of the overall conclusion we have reached as we have just expressed it.

This Employment Appeal Tribunal can only allow matters to proceed to a full hearing if there is an arguable point of law. That, of course, can include a misappreciation of facts or misappreciation of evidence or a finding that is based on a total lack of evidence but what it certainly cannot include is a re-opening or a rehearing of matters that have been properly decided in the first place by the Industrial Tribunal. It is against that background that we consider the matters in the skeleton argument. In paragraph 3.1 the Applicant appears to be complaining about the fact that the Industrial Tribunal made the findings it did in relating to the "brain-dead" memorandum and the non-pupil days. We do not wish to go through those matters in detail. The "brain-dead" memorandum, as we shall call it, was dealt with in detail by the Industrial Tribunal at paragraph 14 of the appendix and they dealt with that with great care. Of course the person, and we do not think it necessary to name anybody, who had regrettably used that term in a memorandum, was criticised by the Tribunal in this way:

"It was clearly a most inappropriate and unprofessional term to use."

But what the Tribunal went on to find was that the Applicant began to give currency to that memorandum for his own purposes and the Industrial Tribunal found that he was not circulating the memorandum for honourable reasons. Indeed, one of his own witnesses, as the Industrial Tribunal found commented as follows:

"Mrs Beames, referring to the Applicant's behaviour in respect of his giving greater currency to this memorandum, said that some members of staff had tried to support the Applicant and been exasperated by some of his efforts. She said that they felt that he was taking things too far, and as friends tried to help him.".

The Industrial Tribunal made very careful findings and concluded that:

"Our impression is that the Applicant wanted to use this memorandum as a stick with which to beat the school, and also to encourage greater punishment of [the person who had originally circulated it]"

and the Industrial Tribunal reached their conclusions on that basis. They dealt with the matter carefully and properly.

Everything that we said in relation to that matter we really repeat in relation to the very careful way in which the Industrial Tribunal dealt with a complicated matter under paragraph 10 of the appendix relating to a non-school day or a fifth non-pupil day. It is a very complicated matter and it is dealt with at great length by the Industrial Tribunal. It involved an allegation by the Applicant that there had been a forgery of some kind of a document by a member of the staff. The Industrial Tribunal dealt with that matter in every way correctly and reached a perfectly proper and reasonable conclusion in relation to it.

There are then various other matters in the skeleton which we should deal with shortly. We are satisfied that the Industrial Tribunal dealt with the issue as to whether the Applicant was being singled out for being late perfectly fairly and properly and reached fair conclusions in relation to it.

There was another matter relating to a memorandum Mr Moffitt had dealt with, which had been written to him by the Applicant. Again, the Industrial Tribunal dealt very carefully with that matter, including summarizing the evidence of Mr Lucas about the Applicant's habit of writing many memoranda:

"Mr Lucas gave evidence in a mild mannered, patient and long-suffering way, when referring to his relationship with the Applicant. He said that very early in his relationship with Mr Ali, he refused to reply to his memos because that just generated another memo. The Applicant used to put massive circulation lists on his memos ... To Mr Mucas' mind, this was all with a hidden agenda, as the Applicant kept everything and referred back to things after a lengthy period."

So they drew the inference that Mr Moffitt may well have been justifiably exasperated with an unnecessary memorandum from the Applicant. It is a perfectly proper finding for the Industrial Tribunal to reach.

There was a matter relating to Mr Sayadi, who was yet another NUT representative, and the Industrial Tribunal rejected as fanciful the theory that the Applicant had advanced that in some way Mr Sayadi was being blackmailed by the school management. They gave perfectly good reasons, in our judgment, for rejecting that conclusion.

Then there is a matter which relates to the facts that at the disciplinary hearing in December a Mr McCourt represented the Applicant as Counsel. He had had the opportunity to cross-examine and did cross examine Mr Hellen, who was obviously a very important witness in this whole matter and, as Counsel rightly said at the fulcrum of the Respondent's case against the Applicant. Mr McCourt was able to cross-examine him and did cross-examine him at a hearing that went on from 6.30 pm to 9.30 pm. At the resumed hearing on 20 December Mr McCourt applied, although he had finished cross-examining Mr Hellen on the previous occasion, to recall Mr Hellen for further cross-examination. In their discretion the panel refused this application, particularly because Counsel had already indicated that he had no further questions. The Industrial Tribunal dealt with the matter in this way:

"At the resumed hearing on 20 December 1994, Mr McCourt, no doubt on the instructions of the Applicant, asked that Mr Hellen should be recalled as a witness for further cross-examination by him. The panel decided that it would recall Mr Hellen if it was felt appropriate, but he was not recalled. It is one thing to say that Counsel was not allowed to question the main witness for the other side, it is another thing to say that the panel did not allow that witness to be recalled, when Counsel had already indicated on behalf of the Applicant, that he had no further questions. We must say, we have a certain sympathy for the panel. We have no doubt the Applicant wished there to be further cross-examination of Mr Hellen. We formed the view that, if unchecked, the Applicant would have wished the cross-examination of Mr Hellen to go on for ever, at the hearing and in this Tribunal. We draw no inferences of racial discrimination from that decision, nor do we think it affected the fairness of the decision to dismiss in any way."

In our judgment the Industrial Tribunal were entirely justified in reaching that conclusion. They were entitled to take into account the impression they themselves had formed of the Applicant's manner and demeanour in the way in which he was questioning witnesses before themselves in order to make a finding as to whether that panel acted reasonably in the decision they took with regard to further cross-examination.

Then there were other findings which we do not propose to deal with one by one, which are set out in the skeleton argument but which we reject on the same basis.

We turn to the matters taken this morning by Counsel. There was a reference again to the matter of the fifth non-pupil day. We do not add anything to what we have already said about that. What we can see in relation to that matter is how carefully the Industrial Tribunal dealt with it and we do not propose to say anymore about that.

With regard to paragraph 33, that is a matter that we have already dealt with relating to the findings of the Industrial Tribunal that Mr Hellen would have been cross-examined for ever and we have set out our reasoning in relation to that matter.

With regard to paragraph 35, there is suggestion that in some way Mrs Sibley, another NUT Equal Opportunities Officer, had in some way compromised herself so that she should not have sat on the disciplinary hearing. We note everything that is said by the Industrial Tribunal, and the way in which they dealt with that matter at paragraph 35 of their decision and we are quite satisfied that they were entitled to conclude in the way that they did that there was no reason to suppose that in any way Mrs Sibley's position had been compromised and there was certainly no denial of natural justice in that regard.

There is a submission made in relation to paragraph 36 that the Panel which dismissed the Applicant contained the same members as the panel which had imposed the warning in July 1994. The Industrial Tribunal carefully examined that and concluded that there was nothing in that situation which led the Industrial Tribunal to draw an inference of racial discrimination or which affected the fairness of the dismissal. They pointed out, amongst other things, that the Panel which subsequently heard the Appeal was a differently constituted Panel and they also pointed out that there were a relatively small number of governors sitting on the Disciplinary Panel and in our judgment there is no possible ground for appeal in relation to paragraph 36.

Paragraph 44 relates to a suggestion that Mr Nichols had improperly taken the side of a Miss Bray regarding a dispute about break duty. In our judgment, again, the Industrial Tribunal were entitled to conclude that Mr Nichols had done no such thing. He had taken her side but not improperly but rather based on his past experience of the Applicant's behaviour, so in our judgment that was a proper finding for the Industrial Tribunal to make.

Nor is there anything in the point on paragraph 47, the suggestion that it was unfair and unequal treatment in some way. The Applicant was asked to produce some lesson plans whereas other were not. The position was quite different, on the findings of the Industrial Tribunal with regard to the Applicant, since it was necessary for such plans to be produced by him because of the deficiencies in his teaching, which had led the school to impose, as the Industrial Tribunal held fairly and properly, a system of monitoring with regard to the Applicant.

With regard to the allegation relating to paragraph 56, there is nothing in that allegation since it turned out that the letter there complained of which was used to prop up an argument that in some way it was indicative of Mr Hellen's bad feeling towards the Applicant, in fact, as is clear from close examination of paragraph 56, was in fact written not by the headmaster but by a Mrs McIntee and it was, therefore, quite proper of the headteacher to deal with that matter and it was the Applicant's own choosing that he decided to produce that letter at the hearing before the Industrial Tribunal. The Industrial Tribunal were entitled to reach the conclusion they did in relation to that letter.

For those reasons we have to conclude in this unfortunate case that there are no arguable grounds of appeal. The reality is, in our judgment, that this Applicant is dissatisfied with the decision of the Industrial Tribunal which, of course, is a personal tragedy, as were all these events, as far as he is concerned. We can only allow an appeal on grounds of error of law or misapprehension of the evidence or findings reached without any evidence. In our judgment no such errors are even arguably present in this decision. We have, lest it be thought that we have not looked at everything that is placed before us, equally carefully considered the allegations made by the Applicant of misconduct and bias by the Industrial Tribunal, in particular, at paragraphs 78, 93 and 94, the document which the Applicant has entitled "Comments on the Industrial Tribunal's Decision" and paragraphs 50 and 58 of his comments on the appendix. These allegations are mainly but not exclusively directed at the Chairman. We can find nothing of substance in these complaints. The Chairman had the very difficult task of making sure there was a fair hearing, especially bearing in mind that the Applicant was in person, and at the same time keeping a proper control of the proceedings. With respect to the Applicant we must conclude that the matters which he has raised today and in the documents before us only serve to endorse the conclusion reached by the Industrial Tribunal at paragraph 94.2 of its decision. We should note finally that two out of three of the Members of the Industrial Tribunal were themselves from ethnic minorities and thus would have been sensitive to the case being made by the Applicant at the hearing and astute to detect any racial impropriety on behalf of the school or those responsible for the disciplinary process relating to Mr Ali. Accordingly, for those reasons, this application must be dismissed.