Chouaou v Kensington & Chelsea College & Ors [1998] UKEAT 301_97_0402

EAT
Chouaou v Kensington & Chelsea College & Ors
[1998] UKEAT 301_97_0402 · 1998-02-04
MR JUSTICE KIRKWOOD : This is the preliminary hearing of an appeal by Ms Chouaou from the decision of an Industrial Tribunal sitting at London (North) on 12th and 13th December 1996, by which the tribunal rejected her complaints of discrimination under the Race Relations Act 1976; and of unfair dismissal under the Employment Rights Act 1996 ; and of discrimination and of unfair dismissal under the provisions of both those Acts of Parliament. The extended reasons of the Industrial Tribunal were promulgated on 14th January 1997.It is fundamental to the decision of the Industrial Tribunal that it preferred the evidence of the respondents to that of the applicant.On this preliminary hearing the appellant must persuade us that she has an arguable point of law to go to a full hearing, and if she does not persuade us of that, then it is our duty to dispose of the appeal at this stage.The appellant, whose racial origin is Algerian, was employed as a part-time evening adult education teacher in French by the Kensington and Chelsea College at their site at the Holland Park Centre, which was one three sites they operated. Her employment was from 24th October 1990 to 6th June 1995. The Kensington and Chelsea College was the first respondent to the application. The second respondent, Ms Rettie, was the section head of the language section. She was incidentally a person of German origin. She had management responsibility for Mr Deidier who was an Italian lecturer and a languages co-ordinator. He was the third respondent, and he was in turn the line manager of the appellant.On 6th June 1995 the appellant before us was summarily dismissed by the College with no pay in lieu of notice and that was on the ground of gross misconduct.At the hearing before the Industrial Tribunal a preliminary matter had to be determined and that was the extent to which allegations of racial insult were out of time as substantive matters for consideration. The tribunal ruled that it would not be just and equitable for the tribunal to consider alleged racial remarks made by the second and third respondents which had allegedly occurred outside the statutory three month limitation period, although evidence in relation to those allegations would be admissible as probative background evidence.The material facts are set out in the extended reasons of the Industrial Tribunal in the following terms:
"The tribunal's task is to decide whether the College has shown that the reasons for the dismissal was conduct and whether the said dismissal for conduct was fair or unfair in all the circumstances of the case."
There was then reference to the job description for the post that the appellant held and that included an obligation to:
"write the names, addresses and Student Admission Numbers of new students in the register and record the total number of attendances in accordance with the procedure described in the register and the College Staff Handbook."
There was then a reference by the Industrial Tribunal to that Handbook and to a section "How to fill a Register". The tribunal found that in October 1994, a Mr Faulkner sent a memorandum to all tutors reminding them to keep to the procedures for entering students' names in the register. The tribunal recorded an extract from the minutes of a Lecturers' meeting held in November 1994 in these terms:
"Please ensure that your register is properly marked using the codes for absences in FE Registers. For AE, indicate the reasons, e.g. holiday, sick, letter of apology. Please remember that the register is a legal document. The College can be sued if a student is marked present when in fact s/he was absent."
The tribunal then refer to the Disciplinary Code and said:
"14. ... It contains the procedures for investigation, suspension, disciplinary hearings, representation at hearings, rights to appeal and the definition of offences. The relevant examples under gross misconduct include offences of dishonesty including fraud and "Falsification of any official documents, records, claims or accounts, giving false information ...""
The relevant facts as found by the tribunal are:
"(2) One of the Second Respondent's targets was to improve the retention levels of the students. The lecturers were warned that if the student level fell below eight, their classes might be closed. On 1 February 1995, the Second Respondent sent a memo to Ms Krystyne Piasecka, the College's Faculty Head and her immediate line manager, listing the names of a number of lecturers, including the Applicant, who had been warned about the lack of student number in each of their classes. For the three successive weeks prior to that warning, the Applicant had recorded on the appropriate register form that eight students had attended her classes on each of those occasions. The warning would have put the Applicant on notice that her class might be closed down by Easter if the student numbers fell below the minimum eight required.
(3) On 14 February 1995, the Third Respondent attended the Applicant's class as part of the normal observation process. He reported back to the Second Respondent that there were only five students in the class whereas the Applicant had registered 12 and 13 students each as having attended her class in the immediately preceding two weeks. The Applicant had explained to the Third Respondent that the low number attending the class on 14 February was due, inter alia , to that date being St Valentine's Day.(4) Shortly afterwards, a student complained about the low number of students in attendance at the Applicant's class. The student was particularly aggrieved because her previous class had been closed down due to low student attendance and in consequence she had been moved to the Applicant's class. The Second Respondent asked the Third Respondent to look into the matter. He and Mr Faulkner carried out observations and it was noted on those occasions that the actual number of the students attending the Applicant's class on each of those occasions was significantly lower than the student attendance numbers entered by the Applicant in the relevant register. The Second Respondent also carried out some investigations with students and it emerged that some of those students who had been registered by the Applicant as having attended her classes had in fact ceased attending them for some considerable time. [ The relevant documents were referred to. ](5) On 27 March 1995, the Second Respondent had a meeting with the Applicant in the presence of Ms Wendy Orr, the ex-head of Faculty. The Second Respondent asked Ms Orr to be present as an independent witness. Ms Orr's note and the Second Respondent's report on that meeting [ were in the bundle and were identified. ] The Second Respondent explained to the Applicant that the meeting had been arranged to give her an opportunity to explain the discrepancies in the number of students actually attending her class and the number recorded in the register by her. The Second Respondent began to outline the findings of her investigations but the meeting had to be closed because the Applicant became very agitated and the meeting did not seem to be able to make any constructive progress.(6) On 20 April 1995, Mr Baber wrote to the Applicant informing her that he was suspending her from work with immediate effect on full pay under the College's Disciplinary Code pending investigation into the allegations that she had falsified the student attendance records for her class.(7) On 4 May 1995, Ms D Raval, the College's Personnel Officer wrote to the Applicant asking her to attend a formal disciplinary hearing on 16 May 1995 to hear the allegations that she had falsified student attendance records for her class, under the item of "Gross Misconduct of the College's Employees' Disciplinary Code". She was informed that one of the possible outcomes of the hearing could be her dismissal. She was informed of her entitlement to be represented at the hearing by a trade union or staff representative, or work colleague, or friend of her choice, ... The letter concluded by informing her that two copies of the Second Respondent's Report were enclosed - one for her and one for her representative. The Applicant never indicated at any time prior to the disciplinary hearing that she had not received the copies of that report."The Industrial Tribunal then set out how the disciplinary hearing went, and how the appeal process went. The tribunal then made its determination. In respect of the race discrimination complaint the tribunal found this:
"On the evidence before us, the Tribunal is not able to find any evidence of racial discrimination or any evidence from which an inference of racial discrimination could be drawn."
The tribunal then expanded upon that in paragraph 15 of its Extended Reasons.In relation to the unfair dismissal complaint, the tribunal said:
"16. ... It is conceded on the Applicant's behalf that there was no procedural unfairness and that the tests laid down in British Homes Stores Ltd v Burchell ... satisfied. There was a proper investigation. The Applicant was afforded an opportunity to meet the charges made against her. There was a fair hearing and an appeal. On the evidence before him, Mr Baber formed the genuine belief that the Applicant had falsified the register entries. That was a reasonable belief in the light of evidence before him. The Applicant's real complaint is that Mr Baber should have believed her evidence to the effect that the inaccuracies in the register entries were due to genuine mistakes on her part and not due to deliberate dishonesty. ... On the facts of the case it cannot be said that the sanction of dismissal was outside the band of reasonable responses open to an employer faced with the facts of the case. ..."
There was then a request to the Industrial Tribunal to review its decision. The ground for that application was:
"The interests of justice requires such a review.
The tribunal failed to take into account the registers which the applicant was alleged to have falsified could not possibly have been completed by the applicant as they did not bear her signatures as they ought to have done and failed to consider the possibility of someone from the college having fraudulently manufactured those registers."In refusing to review its decision, the tribunal said by extended reasons of 14th February 1997:"4 The Applicant's grounds in support of the review application do not contain any new evidence which was not before the Tribunal or any evidence which was not known to the Applicant prior to hearing. An assertion that the Tribunal failed to properly take into account evidence which was put before it cannot be a sufficient reason for reviewing the decision. ... In any event the Applicant's allegation, which she did make in the course of her evidence, that her "entries had been tampered with" was rejected by the Tribunal by implication in its decision. At paragraph 15 of the decision the Tribunal's decision read as follows:
"The Tribunal has found that in relation to the specific allegations against the Second and Third Respondents, it prefers their evidence to that of the Applicant."
In paragraph 16 of the decision, the Tribunal made a specific finding as follows:
"On the evidence before him, Mr Baber formed the genuine belief that the Applicant had falsified the register entries. That was a reasonable belief in the light of the evidence before him. The Applicant's real complaint is that Mr Baber should have believed her evidence to the effect that the inaccuracies in the register entries were due to genuine mistakes on her part and not to deliberate dishonesty."
The Applicant's allegations were all considered in great detail by the disciplinary and appeal panels.5 The Applicant has advanced no grounds to support the assertion that the interests of justice require a review of the Tribunal decision."It may be that one of the matters that the appellant has not fully appreciated is that the task of the Industrial Tribunal was not make its own evaluation on the material, ab initio , but to decide, inter alia , whether the employer had formed a genuine belief and had reasonable grounds on which to found that belief.The next step in the case came with the appellant's Notice of Appeal in which she says:
"1. On the first day of the hearing the appellant was called to give her evidence. Immediately before she did so she stated to the tribunal that a register of attendance which formed part of the evidence before the tribunal had not been signed by her and that the signature was not hers.
2. The chairman examined the document. Mr Ward representing the appellant drew the attention of the Tribunal to the signature on the register and stated that there was an obvious discrepancy between the appellant's signature and the signature on the register. The chairman agreed that they appeared to be different and asked Mr Ward whether he was saying that they had been interfered with.3. The counsel for the respondent was asked for a response. The respondent claimed that this amounted to new evidence and it was adduced too late in the day for him to address it properly. In effect he had been taken by surprise.4. The tribunal ruled that the evidence of the signature on the register was not to be admitted."In the light of those grounds of appeal the matter came to be considered on a preliminary hearing before His Honour Judge Hull QC and two industrial members on 2nd July 1997. The Appeal Tribunal was told on that occasion by the appellant's representative that the tribunal had misrepresented the case which was put to them by the appellant. So far as her admitting that she had made mistakes, her case throughout was that the wrong entries in the register were not her entries at all, so that the point about the signatures was vital. The Appeal Tribunal on that occasion, therefore, asked for a signed statement from the appellant saying exactly what her allegations were, with particularity, and exactly what she said to the Industrial Tribunal; and information from Mr Ward, Counsel who represented her before the Industrial Tribunal, of what happened there and what his case was before the Industrial Tribunal. That material was provided. The appellant made a signed statement in which she said:
"7. My case at the IT was that pages 19 and 20 [ pages in the register ] did not bear my signatures or initials. I wished to have that case put at the IT. As a preliminary matter the IT decided whether or not I should be permitted to give evidence that those were not my registers. They retired to reach their decision. They decided that I should not be able to put that case since in their view the College had had no previous notice of it. My case is not and was not that I had made genuine mistakes on the registers.
8. As a result, during the hearing my barrister, a Mr Ward, who represented me on behalf of FRU, was not allowed to cross-examine the College witnesses in relation to allegations of tampering, or in relation to allegations that pages 19 and 20 were not my registers.9. I have read the IT decision which at paragraph 5 suggests that my case was that I had been "careless rather than deliberately dishonest". That was not my case, and the IT decision has proceeded on a wrong basis."Mr Ward made a signed statement in which he said:
"2. ... This statement and my opinions expressed herein are based only on my observations at the hearing, which is still fresh in my memory.
3. The nub of the Appellant's appeal is that she was not allowed to put her case to the Tribunal (paragraph 11 of her statement) ...This is not at all my recollection, which is that the Tribunal considered only whether it was just and equitable to consider the race discrimination claim as it was outside the three month limitation period. This was duly referred to in paragraph 6 of the Tribunal's decision ... The question of the register signatures had not been raised at that stage.4. Even if the Tribunal had decided as a preliminary matter she could not put her case, it is untrue to say the Tribunal did not hear evidence on this point. What is I think true is it was not in her prepared statement, despite the Appellant having ample sight of the register for some time beforehand. Thus at the close of her examination-in-chief (on the morning of the second day) I gave Ms Chouaou the opportunity to add anything else she wished to say, during which she made this and possibly even more contentions. Regardless of whether the Tribunal particularised this allegation in its decision it was certainly put before Mr Menon and his colleagues whom, by now, were dealing with a difficult and near-hysterical witness who was freely changing her testimony. In my view she was given ample opportunity to say what she liked and the Chair showed exemplary patience.5. The Appellant further, at paragraph 9, denies that her case was she had been "careless rather than deliberately dishonest". This was in fact a substantial part of her case and was put to the Tribunal."The Chairman also conveyed his comments through the Regional Secretary:
"2 ... Mr Menon is of the view that they [ the grounds of appeal ] were misleading and do not reflect what took place at the hearing.
3 Mr Menon is in complete accord with the witness statement provided by Mr Peter Mark Ward, Applicant's Counsel at the hearing. As he correctly stated in paragraph 3 of his statement, the preliminary hearing was not about the admissibility of evidence about the registers, it was about whether alleged acts of discrimination which outside the time limits should be brought in within the Tribunal's jurisdiction ... As Mr Ward correctly points out, and as can be seen from paragraph 6 of the decision, the Tribunal heard evidence relating to those allegations as background evidence.4 As can be seen from the notes of evidence, the Applicant did allege that the Registers had been tampered with. She was not prevented from adding any evidence. The difficulty was that her evidence was very contradictory. She was not a credible witness. The Tribunal was extremely kind to her in stating ... that it "preferred the evidence of the Respondents and their witnesses to that of the Applicant". That was an understatement. The Tribunal did not wish to be unkind to her by describing her as "untruthful".5. The Tribunal gave the Applicant every opportunity to present every facet of her case. She was not prevented from making any allegation or presenting any evidence."Those comments were requested by the Appeal Tribunal following receipt of the statements of the appellant and Mr Ward; and also requested were the Chairman's Notes of Evidence. Those show that the hearing began with a preliminary hearing which was addressed to the question of abusive remarks. The appellant gave evidence, and having given evidence on that aspect, she then, as is recorded, made the remark "My entries were tampered with". There was then cross-examination of her on the racist aspect, and at the end of that cross-examination she said:
"It was not my signature. I noticed it yesterday.
I only saw the register at work when you sent it.

Registers were at disciplinary appeal."

The tribunal then adjourned and returned with a ruling on the time limit point.It is clear from the Notes of Evidence that there was further evidence given by the appellant, and in particular, on the second day. That followed the evidence on Mr Baber, the principal, who said in cross-examination:
"My conclusion on evidence, falsification of important college documents over a period of time, certainly over a number of weeks. Sacking appropriate."
So that was the conclusion that he gave. In her own evidence on the second day, the appellant clearly gave evidence about these registers and the Notes show these passages:
"A: I don't pay much attention when I tick because the students are around. I did not falsify.
. ..Q: Your number went up after verbal warning. Is that not suspicious?A: No. No verbal warning. Not my signature. I did not.

I was not always ticking or putting zeros. Sometimes I did not have register."

She was then asked about the entry on page 20:
"11 recorded. Deidier said he counted only 7?

A: If I recorded 11, there must have been 11(eleven)."

Then a question about Mr Faulkner's observations:

"Maybe he's mistaken. Sometimes students come late or leave early."

It seems to us that there was evidence before the tribunal that the appellant was saying the signature was not hers; that she had not tampered with the registers; that she was not always punctilious about filling them in, and indeed in answer to a question from one of the tribunal members the answer is recorded:
"Register is normally recorded by calling names. Sometimes you forget and you do it later. Teaching more important. Register is completed only when I have time."
We are faced in those circumstances with some substantial difference of understanding if not recollection between the appellant on the one hand, and her Counsel and the tribunal Chairman on the other. It seems quite clear to us that the issue as to the authenticity of the registers was one that was raised before the Industrial Tribunal, and we are left with the tribunal's clearly expressed view as to which evidence they found that they could rely upon and which they did not.Having rehearsed these matters at some length, it is plain that there is in truth no point of law for argument on an appeal in this case. The matter that Ms Chouaou has put before us, and that has touched us, is her very considerable difficulty in obtaining further employment as a result of her dismissal and as a result of a reference apparently in unencouraging terms supplied for her by the College. Those are matters over which we have no jurisdiction to provide any remedy. We have to approach her intended appeal on the strict basis that I have indicated, and for the reasons that I have given, we are unanimously of the opinion that it must be dismissed at this stage.