United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS TESS GILL (of Counsel) Tottenham Legal Advice Centre 754-758 High Road London N17 0AL
For the Respondents	THE RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK:

1. The appellant, Mrs Bennett, who is black and of African-Caribbean ethnic origin, was employed as acting head of modern languages at Fryern School, Basildon, by a series of short-term contracts from 1st January 1995 until 31st August 1996.
2. Following termination of that employment she presented an Originating Application to the Stratford Employment Tribunal on 22nd January 1997, complaining among other things of unlawful sex and racial discrimination.
3. Following a preliminary hearing before a Chairman, Mr Q Barry, sitting alone on 8th October 1997, at which the sex and race claims were permitted to proceed notwithstanding that they were presented outside the primary limitation period, the matter came on for substantive hearing before the same Chairman, sitting with lay members, on 11th, 12th and 13th May and 14th and 15th July 1998. By a reserved decision with extended reasons promulgated on 12th October 1998 that tribunal upheld the claim of sex discrimination, but dismissed the claim of race discrimination. The facts relating to each claim were quite different. In the circumstances our focus is on the race discrimination claim, in respect of which this appeal is brought. A cross-appeal by the third respondent below, Mr Hayes, the head-teacher of the School, against the tribunal's finding of sex discrimination has been formally abandoned by letter from his solicitor dated 21st September 1999. In that letter, it is further contended that on 31st August 1999 the School was closed and the Board of Governors, the second respondent below, dissolved. It is further alleged that any award in this case is not enforceable against the first respondent Essex County Council. Having heard Ms Gill this morning we have concluded that those arguments go to enforcement of any award. They do not affect our task in adjudicating on this appeal.

The material facts

4. The tribunal found that at this secondary school a considerable number of pupils had serious behavioural difficulties. Many of the teachers were subjected to quite serious misconduct by pupils.
5. Out of 29 members of staff the appellant was the only black teacher. During the first four months of her employment she was exposed to a number of incidents of racial abuse by pupils. Language used included the expression "golliwogs", and reference to "jungle" and "jungle bunny". The appellant referred a number of these incidents to the head of humanities, Mr Routledge. He dealt with some of the pupils referred to him and in respect of five particular pupils he prepared letters to their parents. In fact those letters were not then sent on the instructions of Mr Hayes. The school had considerable difficulty because a number of parents failed to support the disciplinary sanctions imposed on the pupils guilty of misconduct by refusing to allow them to attend detention. The racial abuse temporarily abated after the early part of May 1995, but the tribunal found that the response of the School, particularly Mr Routledge and Mr Hayes, to these complaints by the appellant was somewhat muddled and uncertain. The School had no prior experience of racial misconduct of this kind; the initial response was unclear, no policy was determined upon and to some extent the problem may not have been taken as seriously as, in the view of the tribunal, it should have been.
6. In April 1996 there was a further series of incidents of racial abuse. These occurred in the last two weeks in April and when he found out about them Mr Hayes acted promptly, writing to the parents of each of the five pupils concerned. The tribunal found that on that occasion the action taken by Mr Hayes was prompt and appropriate.

The tribunal decision

7. During the course of argument the tribunal was referred to two decisions of the Employment Appeal Tribunal, Burton & Rhule v De Vere Hotels [1997] ICR 1 (Smith J presiding) and Go Kidz Go v Bourdouane (EAT/1110/95 – Unreported), a case on which I sat.
8. The tribunal directed themselves that although the respondents were not vicariously liable for the acts of children at the School, the appellant could succeed in her race discrimination claim if she could show, adapting the principle in Burton & Rhule, that the racial harassment by pupils was something which was sufficiently under the control of the respondents or any of them that they could, by the application of good education practice, have prevented the racial harassment or reduced the extent of it.
9. The tribunal considered both periods during which the appellant suffered racial abuse. Having found that in relation to the first period, from January to May 1995, the respondents initial response was unclear, no policy was determined upon, and to some extent the problem may not have been taken as seriously as it should have been, the tribunal went on to find that after a short time the abuse ceased. As to the second period, in April 1996, five incidents then occurred and Mr Hayes acted promptly by writing to the parent of the pupils concerned.
10. Taking the whole picture into account the tribunal asked itself whether the appellant's employer had done enough. Although the response to the earlier incidents was not as effective as would have been desirable, the response to the later incidents was immediate and in the overall context of the difficulties of controlling the particular pupils at this particular school, it could not be said that the School failed in its responsibilities. In these circumstances the complaint of racial discrimination failed.

The Appeal

11. We have not in the circumstances heard submissions on behalf of the respondents to this appeal. We have taken into account the respondents' written answer.
12. Ms Gill has taken us to the judgments in Burton & Rhule and Bourdouane. She submits that applying the proper test, which she accepts is set out at paragraph 7(k) of the tribunal's reasons, to the facts as found by the tribunal, their conclusion is irrational and illogical and that further, in considering the appellant's complaint, which related solely to the 1995 incidents, the tribunal took into account an irrelevant factor in favour of the respondents, namely the appropriate way in which the 1996 complaints were dealt with by Mr Hayes. That finding, she submits, militates against the tribunal's conclusion that the respondents had taken all reasonable steps in 1995 to prevent discrimination taking place.
13. We find ourselves persuaded to uphold those submissions. The racial abuse in 1995 continued from 24th January until 12th May, about four months. That is hardly a "short time", as the tribunal say in paragraph 7(l) of their reasons. Regular formal complaints were made by the appellant during that time. They were not taken as seriously as they should have been, on the tribunal's findings. When Mr Routledge prepared letters to pupils involved, Mr Hayes blocked their being sent. In 1996 such letters were sent and the problem was promptly resolved. No policy to deal with those complaints was devised during the four-month period in 1995. The employer's approach, so the tribunal found, was muddled. In these circumstances it simply cannot be said, in our judgment, that the employer took all reasonable steps to prevent the appellant being subjected to racial harassment by pupils, even taking into account the difficulty which the School experienced in controlling some of those pupils. Accordingly, we find that the claim of direct racial discrimination is made out in relation to the 1995 incidents properly applying the law to the facts as found by the Employment Tribunal. In these circumstances we shall allow this appeal and substitute a declaration of racial discrimination accordingly and remit the case to the Employment Tribunal for a remedies hearing to take place at the same time as the sex discrimination remedies hearing.