MS D HINTZEN-HERBERT v (1) THE GOVERNING BODY, PIMLICO SCHOOL (2) WESTMINSTER CITY SCHOOL [2001] UKEAT 667_00_0503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 667_00_0503Case No Appeal No. EAT/667/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D HINTZEN-HERBERTAPPELLANT(1) THE GOVERNING BODY, PIMLICO SCHOOL (2) WESTMINSTER CITY SCHOOLRESPONDENT
Before
His Honour Judge Peter Clark Mr P DawsonDate 5 March 2001
[1]APPEARANCES For the Appellant MISS H GREWAL (of Counsel) Instructed by: Messrs Taylor Walton Solicitors 36-44 Alma Street Luton Bedfordshire LU1 2PL JUDGE PETER CLARK The Appellant, Ms Hintzen-Herbert is black and of African-Caribbean origin. She was employed as a teacher at Pimlico School (the School) from 1 September 1996 until 6 May 1999 when her resignation from that employment became effective.[2]On 6 January 1998 she asked the Head Teacher whether she could work part time in order to undertake an MSc degree in Educational Psychology. She wanted all day Monday and Wednesday afternoon off each week for that purpose. The Head Teacher discussed that request with the teacher responsible for time-tabling and the Appellant's Head of Department. Following a reminder from the Appellant in March 1998 he concluded that he could not accede to her request without disruption and he wrote her a note turning down her request on 30 March.[3]He heard no more until the Appellant arranged to see him on 11 June 1998. A number of matters were discussed. She asked him about the next possible date for her resignation on notice. He made enquiries and told her that it was 31 December 1998. He indicated that if she wished to leave earlier than that he would try to find a replacement for her from September. She was at that time applying for other jobs on a part-time basis outside the school.[4]Following that meeting he decided to advertise the post and did so, placing an advertisement in the Times Education Supplement for 19 June, writing a note to the Appellant telling her what he was doing.[5]The Appellant saw the advertisement before receiving the Head Teacher's note. She was very upset. She saw her union representative at the school, Anthony Jones, and they arranged a meeting with the Head for 22 June.[6]At that meeting two issues were on the agenda, the placing of the advertisement and the Head's decision not to allow the Appellant to switch to part-time working. The meeting did not go well; Mr Jones, a relatively inexperienced representative, was nervous; the Head was irritated that the issue of part-time work was being resurrected. The meeting ended without resolution.[7]The Appellant then consulted solicitors, explaining to Mr Jones that she no longer wanted trade union assistance. Those solicitors wrote to both the Head and the School Governors on 24 June 1998 in identical terms. The letter sought information on part-time working and time-tabling and concluded with an assertion that the Appellant felt she had not the support from the school due to her; that she had not been treated fairly over her request for part-time terms and mentioned her ethnic background and requests by others for part-time teaching in the past. The letter asked for her grievances to be treated as a matter of urgency.[8]The Head replied on 29 June, providing some of the information requested, and providing reasons for not permitting the Appellant to shift to part-time working and he mentioned that of two other requests for part-time work one was accepted, the other rejected. He did not mention the school's formal grievance procedure.[9]The Head said that he would discuss the matter with the Chair of Governors, which he later did. It was not formally raised at any Governors' meeting and the solicitors did not respond directly to the Head's letter, but on 26 June they initiated Tribunal proceedings on the Appellant's behalf alleging racial discrimination by both the Governors and Westminister City Council. That complaint (the first complaint) was listed for hearing on 1 - 3 December 1998 but on 28 November the Appellant wrote to the Tribunal withdrawing the first complaint. It was dismissed on withdrawal.[10]Meanwhile, on 9 November the Westminster Racial Equality Council wrote to the Chair of Governors, with a copy to the Head, complaining of race discrimination and victimisation on behalf of the Appellant and referring to her request to work part-time, refused back in March, and the Head's behaviour at the meeting with the Appellant and Mr Jones held on 22 June; for the first time there was complaint of his "less than satisfactory response" in his letter dated 29 June.[11]The Head replied to the REC on 16 November, pointing out that no formal grievance had been instituted under the school's procedure, a copy of which he attached, and further pointing out that the matter was then placed with the Industrial Tribunal. There was no further communication from the REC.[12]By then the Appellant had gone off work on 5 October 1998, complaining of stress. She never returned to work at the school.[13]On 20 January 1999 the Appellant lodged a formal grievance raising the following issues:(1) the Head's refusal to allow her to teach part-time, dating back to 30 March 1998.(2) His decision to advertise her post, that on 19 June.(3) His behaviour at the meeting on 22 June.[14]The school grievance procedure, which the London South Tribunal chaired by Ms M E Stacey who heard her subsequent complaint of constructive unfair dismissal, race discrimination and breach of contract (the second complaint) found had contractual force, provided that the procedure could not be used to consider grievances or complaints not initiated within three months of the circumstances or events occurring.[15]The new Chair of Governors, Mr Leon took advice from the Head and a Council Personnel Officer and refused to entertain the grievance on the ground that it was out of time.[16]A meeting then took place between Ms Leon, the Head, the clerk to the Governors, the Appellant and her representative on 21 April. No resolution was reached. On 6 May the Appellant resigned complaining that she had been constructively dismissed. On 4 July she presented her second complaint alleging constructive dismissal only. On 22 July new solicitors acting for the Appellant added complaints of racial discrimination, harassment and breach of contract. A subsequent application to add a complaint of victimisation contrary to the 1976 Act was disallowed by the Stacey Tribunal.[17]By a reserved decision promulgated with Extended Reasons on 11 April 2000 that Tribunal dismissed the second complaint. Having found the facts as we have summarised them, the Tribunal concluded:(1) that neither Respondent was in fundamental breach of contract entitling the Appellant to resign. There was therefore no dismissal and so her complaint of unfair dismissal failed.(2) There was no breach of contract. The Council's Equal Opportunities policy was, as the Tribunal found, not incorporated into the contract of employment; the grievance procedure was, but the Respondents were not in breach. The Appellant had formally raised her grievance out of time.(3) As to racial discrimination, all matters up to and including 22 June 1998 were res judicata . They had been raised in the first complaint which was dismissed on withdrawal, see Barber v Staffordshire County Council [1996] IRLR 209.[18]Further, they rejected the argument that the Appellant's complaint of racial discrimination had been ignored and this of itself amounted to unlawful discrimination. They noted the Head's letter of 29 June, which provided a reasoned response to the complaint made by the Appellant's solicitors on 24 June 1998. Nor, they found, was there a material failure on the part of the Governors to take her complaint seriously. The Chair of Governors was made aware of the Head's response of 29 June; the matter was then put into the Employment Tribunal process by means of the first complaint.[19]Finally, the formal grievance procedure did not, they held, raise a complaint of racial discrimination.[20]In all the circumstances they found that at no time was the Appellant less favourably treated than others on racial grounds.[21]Against that decision this appeal is brought. Miss Grewal, on behalf of the Appellant, seeks to attack both the Tribunal's finding as to constructive dismissal and as to racial discrimination. Constructive dismissal[22]She first challenges the Tribunal's finding at paragraph 67 of their Reasons:
"that neither Respondent failed to deal properly or timeously with the Applicant's complaint."
She submits that there was no evidence to support that finding. In particular, she points out that the original informal grievance was not raised at any Governors' meeting on the Tribunal's findings of fact; she draws attention to a letter written by the Appellant's then solicitors on 1 September 1998 to the then Chair of the Governors, Mr Straw, enclosing a copy of their letter of 24 June and asking for his confirmation that the matter be brought to the attention of the school Governors and that they were giving their consideration to it.[23]By then the Tribunal proceedings, arising out of the first complaint, were in train and solicitors wrote on behalf of the Council complaining that it was a breach of the solicitors' conduct rules for the Appellant's solicitors to write direct to their client, instead of to themselves.[24]Miss Grewal also relies on the letter of 9 November from the Westminster REC to which we have earlier referred. In these circumstances she submits that on the Tribunal's findings of fact, there was no evidence that the Governors had dealt with the complaint originally made on 24 June at all.[25]Consequently, there was no evidence for the finding by the Tribunal that the Governors had not failed to deal properly or timeously with the complaint. We reject that submission. It seems to us clear from the Tribunal's findings of fact that the original complaint of 24 June was dealt with in short time by the Head Teacher's response of 29 June. The Tribunal found that he discussed that matter with the Chair of Governors and therefore brought it to the Governors' attention.[26]The matter was then overtaken by events because the Appellant chose to commence Tribunal proceedings, the substance of which incorporated the very matters complained of in the letter of 24 June. In these circumstances there was plainly evidence to support the finding in relation to the first informal grievance.[27]So far as the formal grievance instituted on 20 January 1999 is concerned, it is clear that that was, as a matter of form, out of time under the contractual timetable arrangements. In these circumstances it seems to us that the Tribunal's findings at paragraphs 68 and 69, to which exception is taken, are themselves not open to challenge as being based on no evidence before the Tribunal.[28]The racial discrimination attack arises in this way. First, it is said that the Tribunal were wrong as a matter of fact to hold at paragraph 79 of their Reasons that the question of race was not raised in the formal grievance dating back to 20 January 1999. Their finding is that at no time during the correspondence relating to the grievance procedure and the informal meeting held on 21 April 1999 was the issue of race raised by the Applicant. Miss Grewal accepts that on the basis of the minutes of that particular meeting, the question of race was not raised.[29]However, she draws attention to the fact that in the formal grievance complaint of 20 January 1999 a copy of the original solicitor's letter of 24 June 1998 was attached, and in that letter at paragraph 6 there is a reference to the Appellant's ethnic background. We think that the Tribunal's Reasons have to be approached sensibly and as a whole; the thrust of paragraph 79 is that the issue of race was not raised at that meeting. A passing reference to the Appellant's ethnic background, in a letter which was attached to the formal grievance letter of 20 January, does not, in our judgment, undermine the finding in paragraph 79.[30]Finally, Miss Grewal points out an error in the Tribunal's findings. They say at paragraph 55 of their Reasons that:
"55 A parent raised a complaint about smoking on the school premises with the [then] Chair of Governors…As a result it was placed on the agenda for the School Governors' meeting and dealt with by the governing body"
. At paragraph 81 the Tribunal pick up that reference in relation to an argument that was advanced that there was a difference in treatment between the way in which the Appellant's complaint, or grievance, was dealt with and that complaint about smoking. Miss Grewal complains that the Tribunal, having made an error as to who made the smoking complaint, it being she tells us, a teacher rather than a parent, then the Tribunal were wrong. Paragraph 81 found that there was a material difference in circumstances between a member of staff raising a grievance outside the formal procedure, and a parent raising a complaint.[31]We accept what Miss Grewal tells us as to that factual error on the part of the Tribunal however, as Miss Grewal accepts, there was no question in relation to the smoking complaint of an Employment Tribunal complaint being made in relation to that matter, by the teacher who objected to passive smoking. That it seems to us, on any view, is a material difference in circumstances between the case of the Appellant and the case of the teacher complaining of passive smoking. In these circumstances, we do not think that this point merits the appeal proceeding to a full hearing.[32]For these reasons we have concluded that the appeal raises no arguable point of law, and consequently must be dismissed at this preliminary hearing stage.