MR R G PLUMB v (1) BIRCHANGER CHURCH OF ENGLAND PRIMARY SCHOOL (2) ESSEX COUNTY COUNCIL [2004] UKEAT 0133_04_1412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0133_04_1412Case No Appeal No. UKEAT/0133/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R G PLUMBAPPELLANT(1) BIRCHANGER CHURCH OF ENGLAND PRIMARY SCHOOL (2) ESSEX COUNTY COUNCILRESPONDENT
Before
His Honour Judge McMullenDate 14 December 2004
[1]APPEARANCES For the Appellant MR R G PLUMB (the Appellant in Person) For the Respondents MR M LANE (of Cousnel) Instructed by: Essex County Council Chief Executives Office PO Box 11 County Hall Chelmsford Essex CM1 1LX SUMMARY Sex Discrimination: The Employment Tribunal did not err in law when it held that a School did not discriminate against a trainee teacher. Since the sole claims under the Sex Discrimination Act 1975 were against the School and no unlawful act was committed, the claims against both Respondents would be dismissed. Contract of Employment: The Claimant received two months' pay in lieu of notice and so neither Respondent was liable for wrongful dismissal. HIS HONOUR JUDGE McMULLEN QC This case is about sex discrimination and wrongful dismissal. The judgment represents the views of all three members who pre-read what we considered the relevant papers out of the large number presented. We will refer to Mr Plumb as the Claimant, and the Respondents respectively as the School and Essex.[2]At the outset we dismissed, for reasons which we gave, the Claimant's claim to strike out or debar the Respondents for their delay in the submission of a skeleton. The delay was short, wholly excusable and caused no prejudice. Introduction[3]It is an appeal by the Claimant in those proceedings against a Reserved Decision of an Employment Tribunal, sitting over four days, at Stratford East, Chairman Mr J N Leonard, registered with Extended Reasons on 21 November 2003. The Claimant represented himself. The Respondents were represented there and here by Mr Michael Lane of Counsel. We were asked to note that apparent inequality of arms, and the Claimant's unshakeable wish to appeal as far as he might. From our extensive experience of litigants in person in this jurisdiction, we have attempted to make sure there is no disadvantage to the Claimant today.[4]The Claimant claimed unfair dismissal, sex discrimination and breach of contract. The Respondents denied liability in respect of all of those claims. The essential issues were defined by the Employment Tribunal in the following terms:
"It will be for Mr Plumb to show on the balance of probabilities that he was dismissed by the respondent in breach of contract and that it was for the principal reason that he had made a protected disclosure. In relation to his complaint of sex discrimination. s.63A Sex Discrimination Act 1975 applies to alter the previous burden of proof. As it applies in this case, if the complainant proves facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent had committed an act of discrimination which is unlawful, the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act."
It had already decided that a claim of victimisation, in the statutory sense, was not being advanced.[5]The Tribunal decided to dismiss all of the Claimant's claims. He appealed. Directions sending this appeal to a preliminary hearing were given in chambers by Rimer The Direction nvited the Respondents, in accordance with the Practice Direction, to make precise written submissions, indicating that there was no reasonable prospect of success. That permissive approach was not taken up by the Respondents and thus before the preliminary hearing conducted by His Honour Judge Ansell and members there were neither written submissions nor an appearance by the Respondents.[6]The Directions which Judge Ansell's EAT gave narrowed the issues on appeal and they are as follows (references to paragraps in the Notice of Appeal):(1) whether the Advisory and Inspection Service is a qualifying body for the purpose of s.13 Sex Discrimination Act 1975 (99h at B);(2) if it is such a body, whether it aided another, the First Respondent, to carry out (an) unlawful act(s) of discrimination (99h at C);(3) whether there was documentary evidence discussed at the hearing not disclosed to the Claimant (99h at E);(4) what term was there in his contract(s) of employment regarding notice? (99h at G)(5) Whether the Claimant was treated differently by the First Respondent on the grounds of his sex, particularly in relation to a particular incident (99i at D-E).[7]As part of the judgment,

Judge Ansell said:

"The position was that Mr Plumb wanted to become a teacher and he decided to enter the graduate teacher training programme which is sponsored through the government by the Teacher Training Agency ("
TTA") and it provides funds in this case to a local body known as the Essex Advisory and Inspection Service ("AIS") which appears to be under the control of the local county council for the purpose of placing graduates in School for training."[8]It was indicated by Mr Lane that as a matter of fact that is incorrect and Mr Plumb did not dissent when that proposition was advanced. As will be seen, the AIS is not under the control of Essex County Council for the purpose of placing graduates in School for training. Rather it is, in that respect, under the control of the DfE.[9]The Employment Tribunal directed itself by reference to the relevant statutory provisions, including section 86 of the Employment Rights Act 1996 , which gives a right to a minimum period of notice, and to the Sex Discrimination Act 1975 and to the relevant authorities which are cited in paragraph 30 of its Decision, that is The Law Society v Bahl (EAT/1056/01) at paragraph 104 and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 . The passage in the judgment of Elias J and members in Bahl was approved by the Court of Appeal. The facts[10]It is important to understand the quadrilateral relationship in this case which has been explained by the Employment Tribunal. The Claimant is, if we may say so, a highly articulate, intelligent and assiduous person, with a number of first and graduate level degrees, who wanted to become a primary School teacher. During the late 1990s, provision was made by central Government for such people to enter into the profession. Pursuant to one method, the Claimant approached the AIS and was told how of a scheme in which he could become a licensed teacher, overseen by the Teacher Training Agency. The relationship with other organs in the education sector continued through Mr Paul Hughes, who was a senior advisor and accredited OFSTED School Inspector within AIS. As part of the training programme, a number of taught courses was made available.[11]The Agency allowed for certain criteria to be set for licensing teachers and for funding. The AIS supported the training, in ways set out in documentation included in our papers, in supportive classroom observation, in external validation and in assessment, by request from the School. The Claimant approached the School, whose Head Teacher at the time was Mrs R Cowan. The Tribunal made a very firm finding of fact that, notwithstanding a certain stereotypical view of teachers in primary Schools being female, Mrs Cowan supported the promotion of male teachers and, as a manifestation of that policy, agreed to take on the Claimant. She had already employed another male teacher. At the relevant time, however, the Claimant was the sole male teacher in the School.[12]On 14 May 2001, the relevant actors in this drama, who would enable the scheme to be given effect, including the Claimant, signed an agreement,. Undertakings were given, essentially to allow for the Claimant's training on the job, in the School under supervision, and for funding to be provided, effectively enabling the School to take advantage of the Claimant's services at no cost to itself. There would be a mentor who, in due course, was Mrs Howell.[13]Very quickly, however, the perception grew that the Claimant was, as the Tribunal found, temperamentally unsuited to work as a teacher in a primary School. A number of concerns of Mrs Howell were noted by the Tribunal which were that he was unorganised, unable properly to manage behaviour in the classroom and, most seriously, that he displayed an invincible belief that he was always right. That meant that he was confrontational, the Tribunal found.[14]Mrs Cowan involved herself with the Claimant's programme and observed his lessons. She shared the concerns of Mrs Howell. In her judgement, he would never make a satisfactory teacher. Making allowances for the fact that he was new, she yet found inexcusable the Claimant's unwillingness to accept criticism or to follow School policies.[15]An incident occurred on 8 December 2001, the Claimant, having started at the beginning of the term in September. This was known as "the Christmas Bazaar incident". During the course of the Christmas Bazaar on a Saturday, a complaint was made by a parent to Mrs Cowan about the Claimant. It must be said at once that there was no suspicion as to the motives of the Claimant, but he offered small gifts to the children of this parent and to others. As soon as this was known, a discussion took place between Mrs Cowan and the Claimant, which then developed into a loud argument. Mrs Cowan found the Claimant was aggressive, took him to a different room, and from that stage the Claimant never returned to work.[16]Mr Hughes, of OFSTED, was involved in contacts directly with the Claimant and also by e-mail. On 9 December 2001, the Claimant e-mailed to Mr Hughes that he was extremely distressed. He also indicated later that week that he was suffering from stress and would be off work for two weeks. He asserted that he had done nothing wrong and suggested, however, the possibility of a transfer to another School.[17]There were further involvements between the principal actors, and by 7 January 2002 a meeting had been convened. The Claimant and his spiritual adviser, Canon Kemp, who has attended at our hearing today to support the Claimant, attended this. Mr Hughes was there, together with a representative of Essex's HR Department. The Tribunal was extremely critical of this meeting. It noted as follows:
"31. We have been troubled by the events of 7 January 2002 and it is for that reason that we have set out our concerns in some detail. Mr Plumb was called to the meeting with AIS when there was already in place a belief that he was guilty of improper conduct at the Christmas Bazaar and that the School had determined that he was to be dismissed. Neither that allegation nor those others affecting his conduct or performance had ever been tested but it appears, we can put it no higher, that it was a significant factor influencing the AIS to remove Mr Plumb from the training programme. A proper examination of the issues affecting Mr Plumb's attitude and conduct, affording him a proper opportunity to be heard, may well have led to no different conclusion but the fact remains that he was judged guilty without trial. The case against him became circular – 'AIS will take you off the programme because of the untested allegations by the School; the School will dismiss you because it is a condition precedent to the employment that you be within the training programme'. 32. Had the Tribunal been considering a complaint of unfair dismissal, the identified procedural flaws would doubtless have played a significant part. That complaint is not available to the Claimant and for reasons indicated above, we can find no basis on which the actions of the School could constitute less favourable treatment on the grounds of gender. We cannot examine the actions and motives of AIS although we are critical of the process adopted at the meeting on 7 January. Because Mrs Cowan persuades us that her concerns about the suitability of the Claimant to employment in a primary School are genuine and well founded, we must not be taken to be saying that a fair and proper process would have led to any different conclusion."
[18]The outcome was a decision by the governors of the School, following the Claimant's suspension, that a meeting should take place where the possibility of the Claimant's progress and so on would be discussed. The Claimant did not attend. On 28 February 2002, this disciplinary panel meeting, which is what it became, concluded that the Claimant would be dismissed with the right of appeal. He did exercise his right of appeal, which was heard by a panel of governors on 14 March 2002. The decision was to uphold the previous decision and that he would be dismissed with effect from 15 May 2002, that is, with two months' pay in lieu of notice. This exceeded the minimum period of one week, provided for in section 86 of the Act.[19]The Claimant was also engaged as a midday supervisor in order for him to earn extra money. The Tribunal was concerned with only with the first (training) and that second contract, and no issue appears to have arisen as to whether there was a third revolving around a senior midday supervisor position. We consider it to be clear that the Claimant had a contract as a trainee teacher and a contract as a midday supervisor, and that there were only two contracts. But it matters little since all of them were subject to a one-week notice provision.[20]In the absence, at least in respect of the teaching position, of a written contract, a draft contract or a model contract of terms and conditions, which was never given to the Claimant, was produced before the Tribunal. This indicates that the appropriate period of notice for a person in the Claimant's position would have been that which was given, ie two months' notice to terminate at half term in the summer term 2002. The Respondents contend that whatever the Claimant's claim in wrongful dismissal may be, he has been paid not only the correct period of notice provided by statute, since there is no written contract, that is one week, but also that which would have been applicable to him had the confusion surrounding his terms and conditions been resolved by the issue of proper terms and conditions in their standard form, that is two months. In respect of the midday supervision contract, it is one week.[21]The Tribunal considered whether or not the Claimant's claim of wrongful dismissal would be made out. As we have made clear, the Tribunal expressed itself trenchantly and no doubt would have found in his favour in respect of unfair dismissal following the extraordinary events of 7 January 2002. Nevertheless, since the Claimant did not have the requisite one year's service, his ordinary unfair dismissal claim failed: Employment Rights Act section 111. The concern, therefore, was for wrongful dismissal, and the Tribunal held that there had been no breach of contract.[22]When it turned to the Claimant's claim of sex discrimination, which it will be noted was made against the School and not against Essex, it decided in equally strong terms that there was no unlawful act: see the extracts from paragraph 32, above. In addition to that, the Tribunal decided that there was no ready comparator for the Claimant to cite in a claim of less favourable treatment. The Tribunal rejected the Claimant's case that he was an ordinary teacher and held that a notional comparator might be a woman who had spent a few weeks in the School on a graduate teacher training program, who was perceived in the same condign terms as the Claimant had been.[23]The Tribunal decided that there was no discrimination, that is the School committed no unlawful act, and it also dismissed a claim that the Claimant was treated unlawfully by reason of his having made protected disclosures.[24]We cannot leave the recitation of the facts without noting the criticism the Tribunal made of one of the principal witnesses for the Respondent, that is Mrs Howell, who was not as assiduous as was suggested, and her record of steps she took in respect of the Claimant was re-written after the event. Understandably, the Claimant draws considerable support from that major criticism. As will be seen, we do not accept that that criticism entitles him to succeed in respect of the extremely stringent criticisms he now makes of all of the teachers and all of the relevant staff of Essex, including their in-house solicitor and indeed Mr Lane of Counsel.[25]Thus the Tribunal dismissed the claims. We are told that the passage recited in paragraph 3 of its Reasons, in which it decided which the appropriate Respondents were, was the subject of a discussion at the outset and of a reasoned judgment. The Tribunal records as follows:
"Mr Plumb accepted, as a consequence, that his complaints could proceed only against the two respondents as identified above."
That is the School and Essex. The Claimant's case[26]The Claimant submitted that the Employment Tribunal had erred in law in a number of respects. He addressed us this morning with reference to a very comprehensive and densely worded, closely written, small font Skeleton Argument, which demonstrates the Claimant's commitment to his case and his industry in researching the legal issues to put before us, citing, as he does, 54 authorities. This Skeleton Argument also follows the 45 page document which accompanies, and essentially forms the basis of, his Notice of Appeal.[27]The Claimant contended at the outset that the Respondents should be disbarred for certain technical reasons (see para 2 above). No-one listening to the Claimant today, or reading his material, can doubt the strength of feeling which he and his close supporters feel about the way in which he was treated by the Respondents.[28]A number of these matters has been the subject of directions in this case. A ground of appeal related to tribunal procedure, which concerned whether or not a letter had been given by the Respondents to the Chairman of the Tribunal. In addition, there are complaints about the Respondents' witnesses and legal team lying, being duplicitous, being guilty of misfeasance in public office and countless other civil and criminal wrongs, and withholding disclosure.[29]It is contended that sections of the Sex Discrimination Act relevant to this case include section 42, which deals with aiding an unlawful act. The Claimant contends that a correct comparator for him was a teacher since he was, at least according to some documentation in this case, employed as a teacher. He contends that AIS was liable under sections 13, 41 and 42 of the Sex Discrimination Act , which deal with what Steyn LJ (para 37 below) described as derivative forms of discrimination.[30]In respect of his claim for breach of contract he contended that he suffered loss since he, at the moment, is unable to work and has been prevented from working by reason of the combined actions of the School, Essex and AIS: effectively he is unemployable.[31]He contends that the Tribunal erred in its approach to the legal test for discrimination, as set out in Bahl , above. The Respondents' case[32]On behalf of the Respondents it is contended that the third issue identified by Judge Ansell has been resolved by an exhaustive search for the documentation identified by the Judge, and that there is no such letter. The scope of the present full hearing, it is contended, must be affected by the way in which Judge Ansell's EAT approached the issues. It is asserted that AIS may be a part of Essex, but that it performs many functions for the DfE, including the relevant functions in this case.[33]It is contended that there was, at the hearing before the Employment Tribunal, no issue as to whether or not section 13, qualifying body , section 14, vocational training , section 41, agency and section 42, aiding , arose as against the two Respondents. The Claimant's allegations are of direct discrimination, essentially by teachers at the School. It is contended that the derivative provisions, which we have cited above, are not in play in this case, notwithstanding Judge Ansell's approach. Given that it was a preliminary hearing at which only the Claimant attended, Judge Ansell's Tribunal could be forgiven for thinking that there might be in play those four special auxiliary sections of the Sex Discrimination Act ; but on proper analysis of the tribunal proceedings and the Tribunal's rulings during the course of the hearing, a claim in discrimination is weighed only against the School. We have been taken to the passages in the Claimant's documentation, including his Originating Application and Particulars, and that is a submission which we can accept.[34]It is further contended that there are two simple answers. First, that the discrimination case can only succeed if an unlawful act of discrimination is found, for only then will it be necessary to consider whether there has been any aiding of it. In any event, the wrongful dismissal claim is met by a defence that not minimum statutory notice but two months' notice have been given. No permission was given by Judge Ansell's EAT to advance the arguments on bias and in respect of the wrongful dismissal, no proper written contract has been adduced in evidence by the Claimant for there never was one. The legal principles[35]The legal principles in this case appear to us to be as follow. The test for discrimination is that set out by the Tribunal in its Reasons at paragraph 30, extracted from Bahl at paragraph 104 and from Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 .[36]The test for wrongful dismissal is whether there has been a breach of contract in which, in this case, less than the contractual period of notice has been given. Where no express contractual term provides for a longer period, the right to notice is set out in section 86(1) of the Employment Rights Act 1996 . In the absence of special statutory rights, an employer may lawfully dismiss provided that it does so in accordance with the employee's terms and conditions.[37]What may be described as derivative liability (see Steyn LJ in Anyanwu and another v South Bank Student Union and another [2001] ICR 391 at paragraph 33) must be predicated on the commission of an unlawful act by another person. In the absence of an unlawful act this liability will not lie. Conclusions[38]In our judgment the submissions of the Respondents are correct. Bearing in mind the limited target, that is the School, of the allegations of discrimination, the derivative provisions appear to us to be of no assistance. If, however, it is to be said that derivative liability lay against AIS through its connection to Essex and through Essex's connection to the School, it would founder upon the straightforward finding of fact that there was no discrimination by the School or its relevant teachers. That, it seems to us, is a complete answer, and it is not necessary for us to decide whether any of the subsidiary provisions, sections 13, 14, 41 and 42, apply in this case.[39]As a matter of fact the Tribunal decided what relevant attributes a hypothetical comparator should possess. We accept that that was for it to decide and it made a correct choice. We reject the Claimant's contention to the contrary and thus, once the Tribunal had decided to uphold the Respondents' evidence that the Claimant was the object of the criticisms which it had heard, it was open to the Tribunal to decide that the School would have dismissed a woman in the same circumstances. Thus we see no error of law in the Tribunal's approach to that matter.[40]Turning to the question of wrongful dismissal, the Claimant's case is that since he was engaged through that quadrilateral relationship to be at the School, training for an academic year, he was entitled to be paid until the end of July 2002. We reject that contention. His contract was an oral one which entitled him to no express provision in respect of notice. That means he is reliant upon the statutory minimum. No findings were made as to what a reasonable period would be. In our judgment, if that were to be an issue in this case, the Tribunal had before it the standard contract for a trainee teacher in the Claimant's position, indicating that he would receive two months', as he did. In those circumstances we cannot accept the Claimant's contention that he suffered either a breach of contract or any loss. He has been paid in full what, at the most generous estimate, he would have been entitled to receive.[41]We appreciate that our judgment will not satisfy the Claimant in any way. He has continued to work sedulously upon this case and to dedicate his undoubted skills to presenting all arguments which he thinks will be relevant. However, we, like Judge Ansell's EAT, note that essentially there is less to this case than meets the eye and that the important matters which need to be decided have been decided in this case, leaving aside matters which appear to be irrelevant or simply argumentative.[42]We would very much like to thank Mr Plumb for the measured way in which presented his arguments to us today. We note that he had been off for some time with a stress condition, and this event today cannot have been easy for him. Of course, we were also grateful for the arguments addressed to us in writing, and orally, by Mr Lane. The appeal is dismissed. Appeal[43]An application has been made, as was foreshadowed at the outset of this judgment, for permission to appeal to the Court of Appeal. It has been made in very forceful terms, alleging deception and corruption by the Respondents and that, as a matter of law, the Claimant should be entitled to pursue this matter further. In our judgment, we do consider there is any reasonable prospect of success in an appeal to the Court of Appeal. The Court of Appeal will wish to have in mind its judgment in Cooke v Secretary of State when it considers this decision of a specialist Employment Tribunal, now upheld by a specialist Appellate Tribunal, essentially on questions of fact.[44]Permission to appeal is refused. Any application for permission must now be made to the Court of Appeal, and time is extended to 14 days after the seal date of the judgment of which there will be a transcript. Review[45]Following the oral Judgment and Order, the Claimant applied for a Review under Rule 33. I refuse the application as it is not disclose any of the relevant grounds in Rule 33 and stands no reasonable prospect of success at a Review by the full EAT. The matters of which complaint is made have been dealt with by our acceptance of the Respondents' arguments against them.