MR LOUIS YOURI v LONDON BOROUGH OF TOWER HAMLETS BOARD OF GOVERNORS OF SIR JOHN CASS FOUNDATION REDCOAT SECONDARY SCHOOL MR H EVANS [2001] UKEAT 0987_00_0907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0987_00_0907Case No Appeal No. EAT/0987/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR LOUIS YOURIAPPELLANTLONDON BOROUGH OF TOWER HAMLETS BOARD OF GOVERNORS OF SIR JOHN CASS FOUNDATION REDCOAT SECONDARY SCHOOL MR H EVANSRESPONDENT
Before
Mr Justice Douglas Brown Miss Amin Mr P A L ParkerDate 9 July 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE DOUGLAS BROWN This is a Preliminary Hearing, Mr Youri is not present and has not been in communication with the Registrar's office. This is not the first time that this appeal has been before the Tribunal with Mr Youri absent. On 21 February before a Tribunal presided over by Mr Recorder Langstaff, Queen's Counsel, this Appeal Tribunal considered Mr Youri's absence and on that occasion an explanation was given for it. He was then working in Botswana and had only just got to know of the hearing. He no longer had a solicitor acting for him, so he asked that this Tribunal postpone the hearing to allow another solicitor to be instructed to act on his behalf. Mr Recorder Langstaff in giving the Tribunal's consent to that course said this:
"We would make it clear that this Tribunal does have the power on a Preliminary Hearing to proceed in the absence of a party. In the light of whatever written submissions there may be made to it, in the event of the matter being re-listed, the Tribunal will have to think long and hard before concluding that the ends of justice do not require a decision there and then on such written material as is available. And so, although it must be a matter for the Tribunal before whom it subsequently comes, we would anticipate and Mr Youri should know that there will probably be no further adjournment."
We have the difficulty in that we have been given no reason by Mr Youri for his absence. We proceed on the basis that that clear warning given by this Tribunal on the last occasion will have been made known to Mr Youri and he is absent now with the knowledge that we can, and very likely will, proceed in his absence. That is the conclusion, having considered the matter, that we have come to, that we should now proceed to hear this Preliminary matter in this appeal and proceed to decide it.[2]Mr Louis Youri appeals a decision of the Employment Tribunal at Stratford, Chairman Mr Pritchard-Witts, dated 10 July 2000 when the Tribunal decided that none of the Respondents unlawfully discriminated against him on the grounds of race. Mr Youri was employed from August 1998 as a temporary science teacher at Sir John Cass Church of England Secondary School (the second Respondent). This is a school of 800 pupils with 80-90% percent of them of Bangladeshi origin and less than 5% white British. The third Respondent is the Head Teacher, Mr Hayden Evans. The first Respondent, the London Borough of Tower Hamlets dispute that Mr Youri was their employee and they have played no part in the proceedings.[3]On 13 May 1999 Mr Youri made his first Application to the Employment Tribunal whilst still in his employment complaining that a white teacher, Mr Brooks, had been preferred to him to teach the 'A' level chemistry class and that Mr Brooks was paid more than him. He also complained that the school had tried to dissuade him from recommending the exclusion of two pupils who had assaulted him, whilst at the same time without hesitation excluded a pupil who had assaulted a white teacher. There was an Interlocutory Hearing at which six specific incidents were identified and that Mr Youri wished to rely on. A Preliminary Hearing was ordered so that the correct Respondents could be defined and also a decision made about which complaints were outwith the jurisdiction under Section 68 of The Race Relations Act 1976 . That hearing took place on 25 August. The question of the Respondents was left over and the complaints 'in time' identified. That decision was sent on 17 September. On the same day, Mr Youri's contracted having expired on 31 August 1999, he commenced his second Application against Sir John Cass School complaining of two specific matters. One, that on 9 July the school had exposed him to an assault by a pupil in a computer lab by adopting a less zealous attitude towards complaints about violent pupils if they emanated from black as opposed to white staff and a case of a Mrs Bedford was cited as a comparator. Secondly, that he was unfavourably or less favourably treated when threatened with discipline action after asking for an investigation into an alleged assault by a pupil called Rahman.[4]The issue of the correct Respondents was resolved and the hearing took place combining the two Applications. It took place over six days in May 2000 with both Mr Youri and the Respondents being represented by Counsel. The hearing took a long time because this was clearly an anxious case. In their reasons the Chairman said:
"….. this is a most disturbing case that has contained some of the most serious allegations of racist behaviour this Tribunal has experienced."
We do not refer to these allegations giving rise to these comments in detail, but in summary it was alleged that Mr Evans victimised and assaulted a number of Bangladeshi and other ethnic minority pupils, in particular, Mr Youri says that the Head Teacher assaulted a 12 year old boy, Mazidur Rahman, by striking him on the top of his skull with the aerial of his two way radio. There was much more detail involving Mazidur Rahman which we do not find it necessary to refer to. We do refer however to attempts that Mr Youri made to obtain statements from pupils accusing Mr Evans of violence and racial discrimination towards Bengali children. One of these pupils who did make a statement had a poor behaviour record and a history of illegal drug taking and to quote the Tribunal reasons:
"Other statements came from pupils of dubious character or little or no understanding of the English language."
Essentially there was a crucial conflict of evidence between Mr Youri and Mr Evans and also Mr Childs, a teacher with over 25 years experience of teaching at the school.[5]In the reasons the Tribunal said this:
"However, where it has had to chose between the accounts given by Mr Youri on the one hand and Mr Evans or Mr Childs on the other the Tribunal has rejected the evidence of Mr Youri. It has done so because of the poor quality of Mr Yuouri's evidence including the documentary matters he relied upon especially with regard to the alleged assaults and racist behaviour of Mr Evans. Furthermore, as the case progressed it was clear that all the salient evidence confounded Mr Youri's case and repeatedly supported the case for Mr Evans and the school. Issues Before dealing specifically with them the Tribunal is asked to resolve a matter at the heart of Mr Youri's case – that is his allegation that he was treated less favourably by Mr Evans because Mr Evans is a racist. On the evidence it is clear that Mr Youri has singularly failed to prove he is anything of the kind. In reaching its decision the Tribunal has concluded that, quite to the contrary he is a truthful and honourable man who by his leadership, words and actions has demonstrated a commitment to Equal Opportunities. This is not just based upon his own evidence but is clearly corroborated through the evidence of Mr Mahmood [we interpolate there to say that he was the community liaison officer at the school] and the OFSTED report."
The reference to the OFSTED report followed a recent examination of the school by that body and the conclusion of the report was that:
"The school's strengths are racial harmony, level of care and the Head Teacher's "dynamic and decisive" leadership."
The report continued:
"Out of 269 inspection reports prepared this school easily stood out as the most impressive"
The Tribunal therefore rejected outright the allegations of assault and racial abuse of pupils on the part of the Head Teacher.[6]In relation to the other complaints that Mr Brooks and Mr Youri were treated differently and there was a difference in race. The reasons set out legal principles derived from King v Great Britain China Centre [1991] IRLR 513 approved in Zafar v Glasgow City Council [1998] IRLR 36 . They applied them at this stage and looked for an explanation. Mr Evans satisfied the Tribunal that he had selected Mr Brooks on a reasonable basis, namely, his teaching experience, which was much greater than Mr Youri's, and not just on their different academic qualifications. The reasons point out that Mr Evans, with other panel members approval, appointed Mr Youri on a necessarily temporary basis because of his limited contract as a key stage 3 science co-ordinator and that when Mr Brooks left after a short interval Mr Youri took over the 'A' level chemistry teaching. Pay level differential was largely explained because Mr Brooks' salary was paid gross to a limited company whereas Mr Youri's was made net of tax. The other complaints, the Employment Tribunal found, had been satisfactorily answered by Mr Evans. For example, the complaint over the different treatment of pupils who assaulted teachers, Mrs Bedford was not a true comparator as the assault was minor and the pupil was not excluded from the school but withdraw by his parents. Mr Youri's ground of appeal settled by Counsel complain that the Tribunal failed to follow the guidance to be found in King v Great Britain China Centre and in Zafar v Glasgow City Council . The contention is not helpful as it is not amplified in any way in the grounds. It is said that Mr Evans should not have been believed as his evidence was tainted:
"by untruths and flaws"
It is said that Mr Evans falsely exaggerated Mr Brook's academic qualifications. Grounds one to nine concentrate on these aspects of the case. At the end the grounds repeat the assertion that the two leading cases have not been considered and we observe that nowhere in the grounds is the finding, that the assault allegations were rejected, challenged in any way.[7]An appeal lies, to this Appeal Tribunal, only on a question of law. In our view the Employment Tribunal expressed their reasons accurately, summarised the law and applied it correctly. There is no other challenge on matters of law. The criticisms of the reasons do not in our view begin to make out a case that the finding of the Tribunal was perverse, plainly wrong or not founded on evidence. In our view the reasons, after a very careful review of the evidence, were thorough and fairly expressed and are unassailable before us. Accordingly this appeal fails at this stage.