Masters v Chatham Grammar School & Anor [1999] UKEAT 1465_98_1005

EAT
Masters v Chatham Grammar School & Anor
[1999] UKEAT 1465_98_1005 · 1999-05-10
MR JUSTICE LINDSAY: We have before us by way of the Preliminary Hearing the Appeal of Mrs Daphne Masters in the matter Masters against two Respondents, first, the Governing Body of Chatham Grammar School and secondly, Kent County Council. There was a hearing spread over 3 days in September 1998 before the Employment Tribunal at Ashford under the chairmanship of Mr G W Davis. The decision was promulgated on the 5th October 1998 and it was a unanimous decision that "the Applicant's claims for discrimination by way of victimisation are dismissed". The extended reasons are given at very full length. Mrs Masters, who was represented before us today and below, before the Employment Tribunal, by her husband, had lodged her IT.1 on 25th November 1997 and it claimed discrimination by way of victimisation and breach of contract.Mrs Masters, a part-time assistant teacher of Mathematics, has continued to be employed at the school and the consequence of that was that there was no jurisdiction in the Employment Tribunal to deal with matters of breach of contract as such (See the Industrial Tribunal Extension of Jurisdiction, England & Wales Order 1994 para 3(c)). As for defamation, to which Mr & Mrs Masters have made reference in the course of the matter, the Industrial Tribunal has no jurisdiction at all. So the Employment Tribunal below was concerned with what was, in effect, merely a claim for victimisation. The victimisation that was alleged to have taken place was, presumably, sexual discrimination rather than racial discrimination.Section 4 of the 1975 Act (which we will not take time up for reading) requires that there shall have been treatment of the complainant less favourable than in the circumstances others would have been treated and secondly, it requires that that treatment should be meted out to the complainant, to use the words of the Act by reason that "she had done or intended to do or was suspected of doing or intending to do or suspected of having done one or more of the acts described in para (a) - (d) of Section 4 of the Act." Those are matters which are conveniently referred to as "protected acts". The Respondent Employer had made important and possibly generous (but we are not concerned with that) concessions in Mrs Masters' favour. What the Employment Tribunal say in para 2 and 3 of their Reasons is this:
"Notwithstanding that the Originating Application was presented on 28th November 1997 the Respondents have taken no point under Section 76 of the Discrimination Act 1975 (and pausing there, that introduces a time bar) and have conceded that the incidents referred to constitute a continuing act.."
The Respondents have also conceded, for the purpose of this case, that the Applicant had carried out a protected act either under Section 4(1)(c) or Section 4(1)(e) of the Act. It is not at all clear quite what precisely are the "protected acts" which were relied upon as having been done or as having been suspected of being done or intended to be done on Mrs Masters' behalf, nor is there any clear indication of conscious motivation of the kind that the words "by reason that" require to be considered (See Nagarajan ). But the Tribunal (in what would seem to have been a patient and meticulous setting out of the reasons) -sets out reasons which are in detail criticised by Mr & Mrs Masters. The Tribunal's reasons do go into 10 of the separable complaints that had been made below and the conclusion in their paras 15, 16, 17 and 18, are as follows:
"We find that at all times the Head Teacher, the other masters involved and the Governors have acted perfectly properly and indeed, have spent considerable time and effort in dealing with the issues raised by the Applicant. It is very unfortunate that the Applicant and her husband caused so much inconvenience and disruption over a matter which the Head Teacher tried to resolve at an earlier stage. We trust it will now be possible for the parties to resume normal professional relationships. We have no doubt that all of the Respondents have acted perfectly properly throughout and there is certainly no evidence at all of any victimisation nor of any discrimination on the ground of the Applicant's gender. All the Applicant's claims are dismissed."
That was their conclusion.Mr Masters, on his wife's behalf has put in a detailed case on some 3 very closely-typed pages in support of his wife's appeal and the Notice of Appeal itself is some 3¾ closely-typed pages and we have also a 1-sheet summary, received this morning, also prepared by Mr Masters. There are many complaints embraced within those several pages. For example, there is complaint as to the employment or not of the school's grievance procedures. Defamation is raised as is misunderstanding of events by the Industrial Tribunal; perversity on the Tribunal's behalf is alleged. Alledgedly wrongful or inaccurate inferences of fact drawn by the Tribunal are described and there is an issue about whether a copy letter, which we will return to, was indeed an accurate copy. For example; looking at the Notice of Appeal on our page 6, Mr D K Masters on his wife's behalf says:
"However, even using the facts as portrayed in the Industrial Tribunal there have been a number of aspects of the law that appear to have been overlooked, namely, those pertaining to qualified, privileged and defamation; those pertaining to the statutory duty of school governors as enshrined in the Education School Governments Act; those pertaining to the grievance procedure set up between unions and the KCC as employer in respect of adherence to both the spirit and the letter of the law. In addition, they have considered wrong and irrelevant facts and drawn false inferences from the same and they have misunderstood the facts. They have accepted statements as correct over and above written evidence generated at the time of the offence. All in all, little attention has been paid to the concurrent evidence. A request for them to revisit the evidence, review the findings was refused. Thus, our only recourse to true justice is through an appeal."
We have to remind the Appellant that we can only deal with errors of law and also that the Employment Tribunal had no jurisdiction to deal with breach of contract as such. Of course, it could have had a breach of contract in mind as an element in a claim for victimisation but there was no jurisdiction for it to deal with the breach of contract as such. Equally, the Tribunal had no jurisdiction to deal with defamation as such, although, again, it could, no doubt, have been urged as a factor in a claim for victimisation. We have to remind the Appellant also, that it is essentially the province of the Employment Tribunal to evaluate the evidence that they receive, to decide whose evidence to believe and which allegations to prefer. That is their department. One hears the expression "the Industrial Jury" describing the Employment Tribunal and it is in that capacity that they are enabled to draw broad but reasonable inferences of fact. This makes an appeal difficult for someone who has essentially lost the battle on the facts. Take the failure, for example, to use the grievance procedure, which is one of the factors Mr Masters has relied upon this morning. Even if it is true, it does not get him home as a matter of discrimination unless the Applicant can go on to prove, even if the grievance procedure complaint were otherwise valid, that there was some conscious motivation and there was discrimination. That is an element which, as can have been seen in the quotation we have made from the conclusions of the Tribunal, they have failed to find in the Appellant's favour.At the heart, in many respects, of the Appellant's complaint is the complaint that a letter of 17th June 1997 from the Head Teacher, Mr Marshall, to the Chairman of the School Governors, a Mr Martin, was not adequately considered and dealt with by the Tribunal. Mrs Masters had framed a second memorandum and it is worth looking at the way in which the Tribunal dealt with that letter, because as we say, it is at the heart of the complaints made by the Masters. In looking at our page 18, sub-para 10, one sees there:
"The Applicant asked for a meeting with Mr David Martin, the Chairman of Governors. The Head Teacher said he would try to arrange this but it might be difficult. It was then agreed that if a meeting was not possible, the second memorandum would be sent to him with a letter from the Head Teacher setting out his own comments."
So that sets the scene for the writing of the letter. Sub-paragraph 11:
"The letter of 17th June was prepared. Before it was sent the Applicant read the letter on two occasions but made no comment about it to the Head Teacher. The original and copy of the letter of 17th June 1997 was subsequently destroyed. The document at pages ....... is believed by Mr Marshall and Mr Martin to be a true copy of the original and we accept it as such."
The Chairman of the Governors, having received the letter from the Head Teacher, replied direct to Mrs Masters and the contents of that letter or part of it are quoted in sub-para 12. Mr Martin replied as follows:
"It is my considered opinion that Mr Marshall had reacted patiently and professionally to your enquiries. I am also aware that he feels a certain amount of offence by the manner in which you have expressed your views. You have been treated in a manner that is wholly consistent with the policies of the Governing Body. I trust that this issue is now at an end and look forward to you continuing to fulfil your role as a respected and successful member of the teaching body of Chatham Grammar School for Boys."
Returning to the issue of the letter in sub-para 15, the Employment Tribunal say this:
"The Applicant appeared to be very distressed at the contents of the Head Teacher's letter and he in turn explained that he had been offended by her memorandum. In an attempt to alleviate the Applicant's distress the Head Teacher stated that he would destroy the letter of 17th June 1997 and he would ask the Chairman of the Governors to do the same."
In their sub-para 20 the Employment Tribunal take the matter further:
"On 2nd October the Applicant's solicitors then wrote to the Head Teacher (page reference is given). The letter threatened various proceedings and requested disclosure of the Head Teacher's letter of 17th June. At this stage, both the Head Teacher and Mr Martin had destroyed their copies of the said letter but the Head Teacher was able to recover his floppy disk and reprint the document. The Head Teacher replied on 8th August to the solicitors explaining that he had been attempting for some time to try and resolve the Applicant's difficulties but had not had any success. He suggested that the matter ought to be dealt with through the proper grievance procedure.
A meeting was then held on 26th November 1997. The Employment Tribunal then continued with the story in relation to the matter and they say this:
"The meeting acknowledged that details of the Applicant's Contract of Employment had not been finalised. It was also agreed that the Head Teacher should write a letter to the Chairman of the Governors stating "Following our conversation this morning, I wish to place on record, my regret for having despatched a confidential letter to you that has clearly caused offence to Mrs Masters, both in terms of content and purpose. It was written in good faith." "
It was also agreed that the Head Teacher would make a formal statement to Messrs Hocking and Barley, thus:
"As both of you were present at a meeting attended by Mrs Masters and myself towards the end of last academic year, we wish you to know that all correspondence has come to an amicable agreement between the two of us without prejudice to either party. We will now be working together having returned to normal professional relations. Thank you."
In para 8 under the heading "Submissions" the Employment Tribunal again returned to the letter and at the foot of the page they say:
"He pointed out that there had been delays in replying to letters, the disk had been destroyed and the letter itself had been destroyed."
In their para 12 under the heading "Findings" they say:
"The letter of 17th June 1997 which Mr Marshall wrote to the Chairman (and again, a page reference is given) has been the cause of considerable antagonism between the parties and the subject of much discussion before us. The letter was seen on two separate occasions by the Applicant before it was sent off and she did not make any adverse comment about the contents. Subsequently, she formed the view that the letter was defamatory and eventually, and with her agreement, the letter and copy were destroyed. As a result of these proceedings Mr Marshall recovered the copy of the letter from his computer. He and Mr Martin consider it is a fair copy of the original but the Applicant remains sceptical."
Then they turned to separate headings of complaint and they deal in para 2 on our page 25, with the letter and in that quotation they say:
"The Applicant agreed that if a meeting was not possible then it would be appropriate for the Head Teacher to write to the Chairman and also to send the Applicant's second memorandum. This is what occurred. It is accepted that the Head Teacher refused to provide a copy of the letter to the Applicant, although he had allowed her to read the letter on two occasions before it was sent. Had the letter been disclosed to the Applicant at an earlier stage, it might well have prevented the arguments that subsequently occurred, but the refusal to disclose a copy was certainly not an act of victimisation."
At the top of our page 26 they say:
"We are satisfied from the evidence that they offered to destroy the letter and the subsequent destruction of the letter and its copy were acts which were designed to placate the Applicant and alleviate her distress. They were acts which appeared to satisfy the Applicant at the time but clearly did not do so."
Again, the letter is referred to under another heading, under para 7 on page 26. It is alleged that on or about 30th September the Chairman of Governors, Mr Martin, deliberately destroyed material evidence and attempted to prevent the Applicant from using the grievance procedure. We have dealt with the destruction of the letter above. It was held as a fact by the Tribunal that it was not an attempt to destroy material evidence but was an agreed action in an effort to assist the Applicant. Mr Martin did not attempt to prevent the Applicant from using the grievance procedure, although he did quite sensibly suggest that it would be preferable to attempt an informal, amicable solution.The last of the quotations, in reference to the letter, is under the heading of para 10 on our page 27:
"It is alleged that on 26th November the Head Teacher produced a false document and failed to provide accurate minutes of the meeting or at the promised time. The false document referred to is the reproduced letter of 17th June and we accept the evidence of Mr Marshall and Mr Martin that the letter was as accurate a copy as they could obtain of that particular letter. We do not accept for one minute that the Head Teacher conspired to provide inaccurate minutes."
That sequence and the many quotations we have given show what seems to us to be a very careful handling by the Employment Tribunal of one of the most central allegations in the case. It shows that there was indeed a full consideration to the contents of the letter and plainly, in the course of those quotations, it will have become apparent that the evidence of the Respondents was preferred to that of the Applicant. We see no error of law in that treatment. That sequence also dealt with the allegation as to the grievance procedure and, again, the facts were found against the Applicant, the Appellant before us. We cannot but emphasise that our role is limited. We can only look to find errors of law and, doing the best we can, neither on the subject of the letter nor on the subjects covered in the 1-sheet summary that has been handed in today, are we able to find an error which can fairly be described as an error of law. Accordingly we think it wise to return to and emphasise what the Tribunal said in their para 16:
"We trust it will now be possible for the parties to resume normal professional relationships."
We can express that hope but, so far as concerns the Appeal itself, we can do no other than to dismiss it.