England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge D M Levy QC)

		Royal Courts of Justice Strand London WC2A 2LL Friday, 6th September 2002

Friday, 6th September 2002

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal by Dr Seray-Wurie from a judgment given at a preliminary hearing by the EAT in which it dismissed the applicant's appeal from a decision of the London Central Employment Tribunal. The Tribunal had dismissed the applicant's complaints of race discrimination and unfair dismissal.
2. The applicant was employed by the respondent body as a science teacher from April 1988 to 4th September 2000 when she resigned: so her case was one of constructive dismissal. The second respondent was the head teacher of the school. It is not necessary to detail the events which led to the applicant's resignation, but it is clear that being made subject to the school's capability procedure for the last year of her employment played an important part. Her basic complaint was that the head teacher had implemented and manipulated this procedure against her so as to force her out of her job. She alleged that she was treated differently from white teachers.
3. In short, the Tribunal considered, and rejected, each of the allegations made by the applicant both in relation to the complaint of race discrimination and constructive dismissal, which they considered separately.
4. The hearing before the Tribunal lasted for three days. The applicant was represented by her husband, who is a lawyer, and the head of Legal and Welfare Services of the Hackney African Organisation. He again represented the applicant on her appeal to the EAT, which was mounted on a very broad front supported by a 21-page skeleton argument and referred to a number of authorities. Again the notice of appeal settled by the applicant's husband to this court is framed in very general terms. However, today the applicant is represented by counsel, Mr Panton, who has very helpfully honed the points which the applicant wishes me to consider in a skeleton argument and in his submissions to me today, for which I am very grateful.
5. The first and most serious complaint I have to consider is that the applicant says that the Tribunal were biased against her and that the EAT did not give adequate reasons for rejecting this complaint. In particular, it is said that they did not deal at all with the complaint that the Chairman displayed bias against the applicant by her body language.
6. During the hearing before the Tribunal the applicant's husband complained about the Chairman's interventions during the evidence and about her body language. The Tribunal felt that they should deal with this complaint, which they took to be one of bias, in the reasons which they gave for their decision. I think they were bound to do this, as the complaint had been made to them and any suggestion that it was inappropriate for them to do so is, I think, without substance. They deal with the complaint in paragraphs 31 to 39 of their reasons, to my mind convincingly. They explain that the Chairman's interventions were to keep the witnesses to the point. That is the Chairman's job. They record that the members of the Tribunal did not observe any body language detrimental to anyone involved in the proceedings. As is the practice where such allegations are made, the EAT asked for the comments of the members of the Tribunal when complaints of bias were made in the notice of appeal to them, and each member then made a written statement strongly refuting the allegations which had been made.
7. In dealing with the applicant's complaints about bias the EAT recalled that they had taken account of what was said in the reasons and the statements to which I have referred. They then set out what is accepted as being the correct test, based on recent authority of this court and the House of Lords, and concluded that there was no possibility or danger that an informed observer would conclude that the Tribunal was biased. They do not say in terms that this is for the reasons given by the Tribunal, but it is obvious from the context that this was the basis for their conclusion. Accordingly, I reject the complaint that the EAT did not deal adequately with the question of bias.
8. The next and related complaint arises from the rejection by the Tribunal of the claim for race discrimination. Before the hearing the respondent had disclosed documents relating to a white teacher who was the subject of the school's capability procedure. The respondents contended that these documents showed that this teacher had not been treated in any different way from the applicant. She says that when her husband started to ask the head teacher questions about this the Chairman of the Tribunal stopped the cross-examination and asked for the disclosed documents to be removed from the respondent's bundle. The applicant says that this evidence was admissible and probative of the allegation of race discrimination and to exclude the evidence was unfair, particularly because in the course of rejecting the complaint of race discrimination the Tribunal said at paragraph 95:

"The final complaint is that Dr M Seray-Wurie was treated in a manner which was different from the kind of treatment given to white teachers in the School. This matter is not particularised, and Dr M Seray-Wurie has not put forward any comparators."

9. The Tribunal did not explain why they had excluded this evidence, and although this was the subject of complaint to the EAT, the EAT did not deal with it either. I think this is unfortunate, but I am not persuaded that, standing on its own, this point gives the applicant any real prospect of success on appeal to this court.
10. The Tribunal set out the matters relied on by the applicant in paragraph 51 of their reasons. The complaint that white teachers were treated differently was a quite general one. It was the respondents who wanted to rely on their treatment of the white teacher in support of their case. If the applicant's husband really believed that the documents disclosed supported his wife's case, I have little doubt that he would have made a fuss about this and the Tribunal would have dealt with the matter in their decision. As it is, we do not know why they excluded the evidence. It may be (and I speculate about this) that they were concerned about confidentiality. At all events, I do not believe that if the Tribunal had considered this evidence it would have affected the result.
11. The applicant complained that she had never been given a written statement of the terms of her employment. In answer to a request for particulars, her husband on her behalf said that she had asked for such a statement when she was first employed and periodically after that. In their reasons the Tribunal say that there was no evidence that she had asked for such a statement. This was obviously a mistake. At paragraph 93 they conclude:

"In relation to the failure to give a written contract of employment, there is no evidence as to whether other members of staff had a contract of employment and nothing to link the failure to provide a written contract of employment to Dr M Seray-Wurie's race."

12. In dealing with the complaint about this the EAT said:

"If that is an error in the Tribunal's finding of fact, it seems to be a minor one and not one which would mean that the rest of the judgment was to be set aside or otherwise questioned. "

13. However, in saying this Mr Panton argues that the EAT misunderstood the significance of the point. The respondent maintained that when the applicant was employed she was given a document which contained a job description, including the fact that she was to teach A-level chemistry. She denied that she had been given such a document. She was to teach A-level biology and the respondent were unable to produce a document showing this. I am bound to say: so what? It does not seem to me that any of this advanced the applicant's case of race discrimination or constructive dismissal. Mr Panton says that it is further evidence of bias by the Tribunal, but I do not think one can draw that conclusion. Mistake does not equal bias.
14. Finally, Mr Panton complains that the EAT erred in failing to deal with the applicant's submissions about the Tribunal's rejection of her claim for constructive dismissal. The only reference to constructive dismissal in the notice of appeal to the EAT was in paragraph 3, which said:

"The Tribunal's rejection of the appellant's claim of racial discrimination and constructive dismissal was unfair and wrong."

15. The skeleton argument for the EAT, the thrust of which was to complain about bias and unfairness, made only passing references to constructive dismissal.
16. The EAT set out the grounds of appeal, including the ground relating to wrongful dismissal to which I have referred. They refer to the Tribunal's findings which dealt with each of the allegations relied on in support of the complaint of wrongful dismissal. In the concluding paragraph of its judgment the EAT said:

"We understand the disappointment of the Applicant and her husband but at the end of the day we are unable to fault the Employment Tribunal's findings of fact or applications of the appropriate law. In our judgment the decision of the Employment Tribunal is one which it was entitled to reach."

17. It is clear, I think, that its reasons for dismissing the appeal in relation to wrongful dismissal were those of the Tribunal. In the circumstances I do not think it was necessary for the EAT to spell the matter out further.
18. Mr Panton concluded his submissions to me this morning by saying that maybe individually none of his points carry the day, but cumulatively they do show that this Tribunal was biased against the applicant and did not give her a fair hearing, and that the EAT in reviewing that decision abandoned its responsibility. Attractively though that submission is put, I do not accept it. I do not think either individually or cumulatively this is a case in which there is any real prospect of successfully appealing to this court. At the end of the day it seems to me that after a full and I am bound to say, I think, fair hearing the applicant lost before the Tribunal on the facts, and that is something which this court and the EAT cannot interfere with, our jurisdiction being confined to appeals on questions of law.
19. For those reasons I must refuse permission to appeal.
Order: Application refused.