DR E FORSON v (1) THE GOVERNING BODY OF HARWICH SCHOOL (2) MR NIGEL MOUNTFORD (3) MR STEPHEN FENDER [2009] UKEAT 0660_09_0212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0660_09_0212Case No Appeal No. UKEATPA/0660/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR E FORSONAPPELLANT(1) THE GOVERNING BODY OF HARWICH SCHOOL (2) MR NIGEL MOUNTFORD (3) MR STEPHEN FENDERRESPONDENT
Before
His Honour Judge McMullenDate 2 December 2009
[1]APPEARANCES For the Appellant MR C SHELDON Of Counsel (Appearing under the Employment Law Appeal Advice Scheme) And THE APPELLANT IN PERSON SUMMARY RACE DISCRIMINATION: Direct The black Claimant was employed as a maths teacher subject to a policy for dealing with classroom disruption and racism which counselled against public confrontation with pupils. He did not follow the policy and was given a final warning. He did not change and was dismissed. The Employment Tribunal did not err when it defined the issue as relating to "his race" rather than "on grounds of race". The former is narrower than the latter but both are correct according to how the issue was defined. On the facts the Employment Tribunal was entitled to dismiss the claims. HIS HONOUR JUDGE McMULLEN QC This case is about discrimination taking the form of direct discrimination and victimisation contrary to the Race Relations Act 1976 and unfair dismissal contrary to section 98 of the Employment Rights Act 1996 . I have read a substantial number of the papers and I have been referred to one document out of the supplementary bundle to which I will return.[2]I will refer to the parties as the Claimant and the Respondents; that is, Dr Forson and The Governing Body of Harwich School and two individual Respondents, Mr Mountford and Mr Fender. Introduction[3]It is an appeal by the Claimant in those proceedings against the reserved judgment of an Employment Tribunal sitting at Bury St Edmunds, over nine days, registered with reasons on 28 April 2009, under the chairmanship of Employment Judge Pritchard-Witts. I make the point now, since the Claimant throughout his written and oral submissions attacks Judge Pritchard-Witts, that this is a judgment signed by him as required by statute but given by all three members.[4]The Claimant was in person and the Respondent was represented by counsel. The Claimant again through his written submissions and through Mr Sheldon, emphasises that he is a litigant in person at these proceedings and of course I pay careful attention to that both at the Employment Tribunal and here in this court.[5]The Claimant is highly educated, he is from Ghana and black and has Bachelors and Masters Degrees and a doctorate from universities in Ghana and the United States. He is a teacher of mathematics and he is, from what I have read and from his presentation to me, extremely articulate. He contends that because he is 5 feet 6 inches he was not taken as seriously as others. That has made no difference to me and I cannot see it made a difference to anybody. He presents as a confident, fluent, articulate communicator giving, of course, grounds for his appointment at the school as a teacher of maths. Without those skills he would not be in this profession and so it is in that context that I observe that the Claimant is a litigant in person but able to take care of himself.[6]Today he has the advantage to be represented by Mr Clive Sheldon of counsel, who gives his services through the ELAA Scheme and who has focussed upon one ground of appeal ineptly formulated but by virtue of which Mr Sheldon contends an error of law has occurred. I have heard from Dr Forson himself on what Mr Sheldon introduced to me as being the factual matters . That is an unpromising start, for in this jurisdiction we are concerned with questions of law. Rightly, Mr Sheldon advances a question of law and has not advanced what he categorises as the questions of fact.[7]The Claimant made the claims I have cited above. They were subject to taxonomy by the Employment Tribunal so that there were 10 issues for it to decide. These are important. There had been two CMDs, conducted by a judge alone; the 10 issues were set out in those previous CMDs. There was no appeal. The issues are rehearsed by the Employment Tribunal and the parties confirmed that the list of issues for determination was the list that had been determined at the CMD. Thus this Employment Tribunal was the beneficiary of the work done by judges on two previous occasions to try and marshal the two existing claims of the Claimant. As is the custom in what are likely to be complex discrimination claims, these CMDs have served their purpose in marshalling the points that are to be put and subjected to evidence and argument.[8]The issue focussed upon by Mr Sheldon is the following: "Direct Discrimination (I) Whether the Respondents, on or about 8 October 2007, subjected Dr Forson to less favourable treatment on the grounds of his race , colour, nationality and ethnic origin by giving him a first and final warning in respect of his treatment of pupils." ( my emphasis )[9]The other aspects of the race discrimination claims continue the same personal pronoun, ie his race and so do the findings, which correspond analytically to the issues. In other words, the Tribunal began by setting out the agreed issues and then found the facts and came in its conclusions to answer the questions set out in the issues. The Tribunal dismissed the Claimant's claims.[10]He appealed. On the sift of this notice of appeal, in accordance with rule 3. HHJ Reid QC held that there were no prospects of success and said this:
"Essentially the prospective Appellant is seeking to challenge findings of fact made by the ET. The Notice of Appeal discloses no arguable point of law."
[11]As will become clear, I agree with that; but in fairness to Dr Forson, his very detailed Notice of Appeal and the careful examination of the 10 issues by the Employment Tribunal in its 20-page judgment, ought, with respect, to have provided HHJ Reid QC with material upon which he could take a more analytic view.[12]In Haritaki v South East England Development Agency EATPA/0006/08 at paragraphs 1 to 13, I set out my approach to hearings under rule 3. As I said in Haritaki, this is not an appeal from HHJ Reid QC, it is a fresh application made to me. I have more material than was available to him, for I have had arguments from counsel and from Dr Forson himself. I reach my own conclusion. The legal point[13]The legislation in this case is not in dispute. The Employment Tribunal set out the Race Relations Act 1976 :
"1(1) A person discriminates against another person in any circumstances relevant for any `provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons."
[14]It is clear that in respect of the race claim, the Tribunal started with the statute and with the list of issues. Mr Sheldon's criticism on behalf of his client today, is that the Employment Tribunal misdirected itself in each of the answers it gave to the four issues by focusing not on grounds of race but on grounds of his race . The Claimant describes his race as being from Ghana and black. The difference is unimportant; they both come within the statute.[15]It is of course clear that on grounds of race is a wider concept than on the grounds of his race in that it includes, for example, the race of others and associative discrimination. Nevertheless, the majority of claims we see are brought by persons who complain that on the ground of their race they have been treated less favourably. It is open to an Employment Tribunal, when looking at the issue, to define it in that narrow way and this Tribunal inherited the earlier CMDs. Mr Sheldon argues that the point is arguable and should go to a full hearing. With respect, that is not the correct test, which is that there should be a reasonable prospect of success.[16]He contends the Tribunal erred in law; I disagree. If the case is presented to the Tribunal that the issue is the Claimant's race, only that issue is to be decided. It is not an error to define the issue in that way when there is material upon which that narrower approach should be taken. I start with the claim and at the very outset, the central issue in the case is a watershed reached on 8 October 2007, when the Head Teacher of the school, the Respondent Mr Mountford, issued a first and final warning to the Claimant that he was not to ask pupils "Are you disrupting the lesson because I am a black teacher". In the Claimant's typewritten document headed "A gist of the matter" which gives the substantial history, there is a further reference to this:
"The question was rarely asked to find out if such extremely disruptive people who were not following classroom routines was because I am a black teacher."
[17]It seems to me therefore that the procedural judge ahead of the full hearing in this case, acknowledging no doubt the litigant in person before him, looked at what Dr Forson had written in his claim form and in the five pages of type written gist and would have noted that the Claimant was asserting that his treatment was because he was a black teacher. There is no mention of any other grounds of race. That then explains the categorisation of the issues.[18]If this were wrong, there was an opportunity to appeal against it but both these CMDs were the subject of orders, which were not appealed. If the proper approach is to look at the order, which this Employment Tribunal, in its own judgment, set out, then again although the procedural point of an appeal not being lodged is not available, the other procedural point, which is the analysis of the Claimant's claim, was correctly depicted in the list of issues. On that point, Mr Sheldon's argument must founder.[19]Mr Sheldon draws my attention to the way in which counsel did put the point, indicating to the Tribunal what might be described as the broad and the narrow approaches. I am satisfied that counsel there was discharging her duty to the Tribunal, with a Claimant in person. She did not misdiagnose the nature of the Claimant's claim. There is no reasonable prospect of this judgment being overturned on Mr Sheldon's argument. The facts[20]In order to explain the Claimant's representations to me today, it is necessary to describe briefly the facts. The Claimant is an experienced mathematics teacher, having had considerable service in South Africa, and began teaching in Harwich School in Essex on 15 April 2004. He had a break and came back on 16 January 2006. The school has a policy for dealing with disruption by pupils, which involves a staged approach. The Tribunal found that the Claimant was seeking to challenge pupils directly in the classroom when they were misbehaving by accusing them of racism. The procedure eschews such direct approaches visiting racism, which is treated seriously and is damaging, with a range of sanctions including permanent exclusion from the school.[21]The procedure requires a record to be made on an incident slip, posted in the staff room, so that the pupil can be dealt with according to the procedures. What is expressly forbidden is the escalation of the conduct and the school has access to what is known as the "Healey Do's and Don'ts": do not get into a shouting match between yourself and the pupil in front of the class, is an illustration. The Claimant made out 1000 incident slips from 3 October 2006.[22]The leading lights at the school were concerned about this. I have mentioned the Head Teacher, but this account also pays attention to Mr Gilders, who is a colleague and mentor of the Claimant at the school, to Mrs King, who is from the Human Resources Department of the County Council, which of course holds the contract of the teacher in the triangular relationship in teaching, and Mr France, who is the head of maths.[23]The Claimant, at a later stage, also had the advantage to be assisted by two officers of his union, NAS/UWT, Mr Hartwell and Mr Warren. The response of the school to these 1000 slips involved a meeting; the Claimant reported 437 incident slips and this was held to be unacceptable. The outcome was that on 8 October 2007 the Claimant received a final written warning. He accepted the warning in the technical sense that he did not appeal to the Governors, which was his right. He also accepted it in conventional terms for he agreed he was culpable and knew the consequence of a breach of the final written warning would be as he put it, "I am out".[24]Shortly after the warning, reports were given which indicated that the Claimant had not mended his ways. Although there was a dispute about Mr Mountford's approach to a meeting on 20 November, which the Claimant says is a fabrication, the Tribunal found that pupils had reported through their carer or parent, the Claimant again escalating disputes in the classroom. At the heart of Dr Forson's submissions to me is a contention that Mr Mountford was dishonest and engaged in criminal activity.[25]The one page which has been shown to me from the trial bundle, which the Claimant relies upon, is an extract from Mr Mountford's witness statement (see page 179), where he refers to the November events. I am satisfied from what Dr Forson tells me and from the intense notation of this document, which, as he told me is there in order that he can raise important points, that Mr Mountford was challenged about these issues of fact, including in particular a meeting on 20 November 2007. The Tribunal upheld what Mr Mountford said about it.[26]Things did not get better and disciplinary proceedings were put in hand. Adventitiously, with the assistance of his union officials and an open minded approach by the school, a compromise agreement was drawn up which would involve the parting of the ways on agreed terms. I am sure that the best intentions of Dr Forson, his advisers, the school and its advisers, were focussed upon an amicable solution, but it founded, principally because the parties could not agree a reference. The reason was that the Governors regarded themselves as bound by the Department for Education and Skills document, "Safeguarding Children and Safer Recruitment in Education". This requires a previous employer to provide details of any disciplinary procedures involving the safety or welfare of young people. So, the parties could not agree. Eventually the Claimant went through a disciplinary procedure, which he did not attend. The Governors upheld the case by the school and the Claimant was dismissed with notice.[27]The Tribunal therefore returned to the issues, which it put at the outset and it answered each of the questions under the Race Relations Act adversely to the Claimant. The simple issue, which had to be determined in each of these questions, was whether the action was taken by the school because the Claimant was black and was he treated less favourably than a person who is not black.[28]In my judgment the Tribunal has decided on cogent material each of these issues in a way which was open to it. I know the Claimant feels very strongly about this, and has complained about Mr Mountford to the Queen, the Prime Minister, President Obama, The Ministry of Justice, the Ghana High Commission and a substantial number of the Claimant's creditors. It has ruined his life. The papers before me show a dispute with his wife and his conviction by the Crown Court on his plea of guilty to abduction of his children to Ghana.[29]I am sorry that this has had such a devastating effect on his career and that there is no doubt that he feels sincerely that he has been wronged. But the question here is whether there is an error of law made by this three person Employment Tribunal and I have come to the conclusion that there is none.[30]To return, to the way in which the subject was introduced to me this morning by Mr Sheldon, Dr Forson's arguments are to do with questions of fact and whereas certain questions of fact, if they are findings based on perversity may be adjudicated here, none of this does. The Tribunal ultimately answered the simply question of fact as to why the Claimant was treated as he was and held that it was not to do with the fact that he was black. The application is dismissed.