England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND
PERMISSION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Friday, 19th July 2002

1. LORD JUSTICE SEDLEY: Mr Rahim Shojaee, who is of Iranian origin, teaches physics at a secondary school in Bradford. Over the years, from 1989 but more particularly from about 1995, he formed the view that his allocation of A level classes was being unfairly reduced by comparison with the much higher allocation given to two white teachers.
2. In October 1999 Mr Shojaee issued Employment Tribunal proceedings alleging direct race discrimination and victimisation against this school. His case was that the discrimination had affected not only the allocation of A level classes but the ways in which the lower school classes were allocated, the ways in which classroom incidents were responded to, the ways in which in-service training was shared out, the ways in which difficult classes were consequently handled and allocated, and the ways in which allowance was made for leave for one particular religious festival. Mr Shojaee's originating application set out acts of discrimination which he contended to have occurred during the three months prior to the lodging of the originating application. In essence, they were the head teacher's response to the terms which Mr Shojaee had proposed for his return to work.
3. Taking the matter shortly for the present, the Employment Tribunal, finding nothing discriminatory in the head's particular response, held that there was no act of discrimination within the three-month period which was capable of affording jurisdiction to consider the long antecedent history which, as I have indicated, formed the pith and substance of Mr Shojaee's case. The tribunal went on to hold that it would not be just and equitable to extend time.
4. I pause here to say that if this were all the Employment Tribunal had decided, as logically it could have been, I would hold it was wide open to appeal. As recent cases before this court have suggested is becoming rather common, the Employment Tribunal seem to have directed themselves in effect that they would have jurisdiction only in relation to what I might call stand-alone incidents of discrimination lying within the three-month period or a series of incidents forming a continuing act running into the three-month period. This, at least as it seems to me at present and without the benefit of full argument, is misleadingly simplified. There are a good many cases in which a long succession of incidents which may very well be seen in aggregate to have been racially motivated but which the applicant has put up with and tried to negotiate around, is followed by a quite trivial incident, perhaps no more than a contemptuous gesture - and Mr Shojaee's case was that the head's response was a rather contemptuous gesture - which proves to be the last straw. If the claim is brought within three months of that last incident, in my view, it is arguably not right to look at it on its own, to observe, as may well be the case, that in itself it is racially neutral or insufficient to constitute a detriment and so to decline jurisdiction to consider the whole history which gives the final incident its true character. In law, this is because the antecedent history is admissible as evidence of the true seriousness, the true nature and true effect of an ostensibly trivial final incident.
5. Having said this however, the striking and perhaps anomalous thing about the present Employment Tribunal decision is that before reaching this point of its reasons the tribunal had examined the entire employment history and had made a series of material findings about various forms of detriment which Mr Shojaee had encountered and whether to any degree they were racially motivated or influenced. In other words, they had considered the substantive and not merely the jurisdictional issues of discrimination. They had concluded moreover that while the applicant had had his A level teaching much reduced, there were in their judgment acceptable professional reasons for this which had nothing to do with Mr Shojaee's ethnic or racial origins. Their examination of the facts is careful and thorough and their conclusions in themselves are not open to attack even though Mr Shojaee, as he is entitled to do, rejects them as mistaken.
6. Mr Shojaee appealed to the Employment Appeal Tribunal who, under the chairmanship of Judge Peter Clark on 14th September 2001, dismissed his appeal upon a preliminary hearing. Mr Shojaee intelligently accepted that what he had to deal with was not the jurisdiction question but the substantive issues which had been decided against him. In addition, he asserted to the Employment Appeal Tribunal and re-asserts to this court that he had been subjected to procedural injustice of a serious kind. He believed that the two Employment Tribunal chairmen who dealt successively with his case prevented him from presenting it properly. Appropriately, he put his allegations on affidavit and the second of the two chairmen, Mr Barton, and the two lay members sitting with him responded to them. In his application to this court Mr Shojaee adds further allegations that Judge Clark at the Employment Appeal Tribunal also interrupted him and closed ranks with the Employment Tribunal on contentious issues.
7. I have considered these allegations with care and concern. It is not going to be helpful in this short judgment to run through them in detail. Mr Shojaee has demonstrated to me today that he is an intelligent, thoughtful and moderate man, and certainly not the kind who wearies tribunals with pointless and unnecessary argument. That, however, is not an insulation against the surprise which many litigants in person encounter when for the first time they find themselves caught up in a legal or quasi legal process. In particular, many litigants in person - and Mr Shojaee has been in person throughout - feel that the necessary endeavours of Employment Tribunals and Employment Appeal Tribunals to get to the point without loss of time are unfairly cutting down their right to be heard. The surest way for an appellate court to decide whether this has happened, and to decide whether a real injustice has resulted from the handling of the case, is to look at the outcome of the case and see whether it might have been different but for some step which the tribunal below has taken or has declined to take and, if so, whether the tribunal was wrong in what it did.
8. A number of things that happened in this case aroused Mr Shojaee's suspicions that all was not well. His submissions to me today have recognised that suspicion is not enough. One needs something concrete to focus on, and it is this that Mr Shojaee has sought to do in court today. The two main things of which he makes complaint and which are linked are these. First, he points out that the earlier of the Employment Tribunals, chaired by Mr Latham, which made a series of interlocutory orders designed to get the proceedings running in tidy form included in its decision the following paragraph:

"The applicant agreed at the directions hearing that he would now proceed to co-operate with the investigation being set in hand by two of the governors of the first respondent school. That investigation would now proceed but must be completed by the end of February 2000 so that the matter could proceed properly to a hearing. If the applicant then wished to raise any issue from such investigation, including any allegations of any bias on the part of the investigators, then they could properly be raised and heard at the full hearing of the matter when such allegations, if any, could be contained in the relevant witness statements produced for the hearing."

9. That internal inquiry ran its course. A number of people gave evidence to the inquiry, which was conducted by two of the school's governors. They gave evidence to which Mr Shojaee took the strongest exception because he considered it to be untruthful. However when the case came on for hearing before the Employment Tribunal, although the report of the inquiry was placed before the tribunal, by no means all the witnesses who had given evidence to the tribunal were called. Mr Shojaee submits that this meant that unless he were allowed to call those witnesses and to cross-examine them if necessary, the tribunal would be allowing the school (I speak compendiously of the respondents as the school) to get away with unverified and untested evidence given to and adopted by the governors but never seen, heard or tested by the Employment Tribunal. That, if it were the case, would be a serious and worrying factor.
10. In my judgment, it is not arguably right. The school called before the tribunal a substantial number of witnesses. They are recorded in the first paragraph of the tribunal's decision and they, together with the witnesses called by Mr Shojaee himself, form the basis of all the fact findings which follow in the bulk of paragraph 11, a very long paragraph of the tribunal's extended reasons. Nowhere in that paragraph of the extended reasons does the tribunal draw upon the findings of the governors in their report as evidence in itself. It is only when one gets to the final paragraph of the Employment Tribunal's decision that one finds them saying this:

"Having considered the whole of the evidence in this case we share the views expressed by the investigating school governors in their report (page 641). We would simply add that the applicant impressed as a sincere and caring teacher whose enthusiasm for the job cannot for a moment be the subject of any doubt."

11. They go on to summarise the effect of their decision in relation to the applicant's personal position.
12. Although it is difficult for lay people to come to terms with the rules of evidence that tribunals apply - and difficult sometimes for lawyers to do so - they are in their simplest form that a party can call witnesses to support his or her case. Witnesses antagonistic to that party's case either are called by the other side, in which case they can be cross-examined by the party to whom they are antagonistic, or if they are not called their absence may be the subject of adverse comment if they clearly had material evidence to give and there is no good reason known to the tribunal why they should not have been called. Here, the entirety of the school's case upon which the tribunal founded its conclusions was evidence called before them live by the school and able to be cross-examined to by Mr Shojaee. The reference to the governor's report is not a foundation but, at most, corroboration or a make-weight in relation to findings already arrived at.
13. It does not seem to me arguable in the end that Mr Shojaee was denied justice in relation to those matters which the Employment Tribunal investigated and found. It follows that in spite of what I have said is to my mind a debatable finding, to my mind, about jurisdiction, in the event the real issues were heard out and, unfortunately for Mr Shojaee, determined against him. The same is true of the victimisation claim as of the discrimination claim. Everything that did happen to Mr Shojaee's detriment - and detriment, it seems, there undoubtedly was - was held by the tribunal on the evidence to have a satisfactory non-racial explanation and motivation. Mr Shojaee was given what I hope he accepts from me was the considerable leeway of a twelve-day hearing, a very long hearing by Employment Tribunal standards, in order to ensure that the case was properly investigated. No viable issue of law now arises out of it, and there is no realistic hope of bringing a successful appeal before this court.
14. Unlike the Employment Tribunal and Employment Appeal Tribunal where, absent unreasonable behaviour, losing parties are not expected to pay the other side's costs, the Court of Appeal has a costs regime in which the loser ordinarily pays all. That is capable of facing someone in Mr Shojaee's position, if I were to give him permission to appeal, with a five-figure bill of costs. Lawyers in this country do not come cheap. He would not thank me for giving him permission to go ahead on an appeal which, on my view, would be doomed to failure if all that could result from it is a massive bill of costs which would be docked from his salary for ever. This procedure of applying for permission has the salutary effect that a litigant whose case does not stand a decent chance of success is not allowed to go into this financial area of risk. I hope that Mr Shojaee will appreciate that although very unwelcome to him on personal grounds, refusal of permission is a protection for him.
15. For the reasons I have given permission to appeal will have to be refused.
16. Mr Shojaee, I express my gratitude to you for the good sense, moderation and helpfulness with which you have presented your case. I am sorry there is not more I can do for you.
Order: Application refused