Appeal No.	 EAT/651/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR A D TUFFIN CBE
PROFESSOR P D WICKENS OBE

MS E STEELE	APPELLANT

MANDEVILLE PRIMARY SCHOOL AND 
LONDON BOROUGH OF HACKNEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	

	APPEARANCES

For the Appellant	Mr R A German
Representative	

JUDGE HICKS:
1	The Appellant, Ms Elaine E Steele, is a black person of Trinidadian origin who was recruited in Trinidad by representatives of Hackney Borough Council which at the time was very short of Primary School Teachers.  She had already at that stage taught in Trinidadian Schools for 21 years.  After comparatively shorter periods in other primary schools in Hackney she began working at the Mandeville Primary School, the governors of which are the first respondents, from September 1992, Hackney Borough Council being the second respondents.  

2	After two years she achieved qualified teacher status.  From September 1993 her headmaster was a Mr Hay.  On 11 October 1993 she was seriously assaulted by her husband in the presence of her children, and she was off sick until December 1993 but, as the Tribunal found, she confided the details of the assault - the fact of it presumably was well known, but the details of it - only to the school secretary and two of her teaching colleagues, saying that she wished to regard the circumstances as a confidential matter.  The Tribunal find that following that Mr Hay wrote a sympathetic letter to her offering support and his private telephone number but it seems to be implicit in their findings as to confidentiality that he did not know the full details of the circumstances.  

3	The history with which the Tribunal chiefly had to deal followed Ms Steele's return and concerned doubts which Mr Hay entertained about her capability and the procedure which was followed by him and by the respondents in dealing with that. Eventually after a lengthy history extending from December 1993 until a hearing on the 5 March 1996 a decision was taken by the capability panel that she should be dismissed and she was given three months’ notice, the termination of her employment being 19 September 1996.  

4	An internal appeal against that decision was heard and dismissed and Ms Steele complained to the Employment Tribunal on the ground of unfair dismissal and racial discrimination.  Those complaints were dismissed by the Tribunal, and it is against those dismissals Ms Steele appeals.  This is a preliminary hearing at which we heard Mr German on her behalf on the question of whether there are arguable grounds of appeal to go forward to a full hearing.  

5	Mr German has very helpfully presented his submissions in accordance with a skeleton which he submitted, which reduces itself to some 21 very short paragraphs.  But the grounds of appeal themselves run to forty heads and it is necessary for us to consider whether any of them raises an arguable ground of appeal, and if so which.  We therefore propose to go through them.  

6	I should say that it will not be necessary to deal with them all in detail, because we are satisfied that a substantial number of them simply raise criticisms of the Employment Tribunal’s assessment and treatment of the evidence and their findings of fact, and we have no jurisdiction to interfere with those matters.  Our only jurisdiction is to intervene if some error of law is shown in the Tribunal’s decision, or their reasons for that decision.  

7	With that preface, ground 1 arises because after a first hearing at which Ms Steele called a witness, Ms James, whose witness statement had not previously been disclosed, the Tribunal acceded to an application for adjournment.  That was in a decision promulgated on the 18 June 1998.  By an unfortunate series of events, including the illness of the Chairman and the inability of the representative of one of the parties to attend, various prospective dates for the hearing had to be abandoned, and although it had clearly been envisaged by the original Tribunal that the same members would hear the substantive hearing eventually, as the Tribunal record in Paragraph 4 of their reasons, the parties, as they say:

“sensibly, took the view that a fresh hearing before a differently constituted Tribunal was an appropriate way to proceed”.

8	And that is what happened.  It is now said in the first ground of appeal that it was wrong in law to depart from the original intention of reconvening the same Tribunal.  In our view there is no arguable point there.  The way in which the Tribunal was constituted was not a matter which could be inpugned on appeal in any event, even if imposed on the parties, but this was not imposed on the parties.  They agreed to it, as indeed Mr German accepts, in that he was representing Ms Steele at the time and was a party to that agreement.

9	Grounds 2 and 3 both arise out of the evidence of the witness whom I have already mentioned as having been the occasion for the adjournment, a Ms James.  The first Tribunal had adjourned in order that her evidence could be considered by the Respondents. The second Tribunal at the hearing was addressed as to how far her evidence was probative and admissible,  the situation being that she herself, whether or not she had brought a formal complaint by way of application to a Tribunal, was clearly in her evidence complaining of acts of racial discrimination on the part of the Respondents.  

10	The Tribunal dealt with that by admitting part of one of her two statements but not the rest of that statement or the other.  They did that on the basis that there was a duty to admit probative evidence, and they took into account the case of Rosedale Moultings Ltd V Sibley (1980) ICR 186, which had also been considered by the earlier Tribunal. They considered that the parts which they admitted of Ms James’ first statement were matters which were probative because in particular, they say, they dealt with matters which appeared to bear a striking similarity to Ms Steele’s case.  But they considered that to admit the remainder would be to extend the perimeter of the hearing beyond what was reasonable into issues that were not relevant in Ms Steele’s case and would destroy any prospect of its being finished within the allotted time assessed by the parties.  

11	We see no error of law in that.  The complaint in the ground of appeal is that once it is recognised that evidence may be probative an Industrial Tribunal has no discretion to exclude it, and reliance for that proposition is placed on the very case of Rosedale Moultings Ltd V Sibley (1980) ICR 186 which the Tribunal considered.  But in our understanding the Tribunal did address the very question what parts of Ms James’ evidence were probative of Ms Steele’s application, and applied that criterion in deciding which part of the evidence to admit, and we see no arguable ground that they were in error of law in that respect.  

12	Ground 4 is a general allegation that the Tribunal grossly misinterpreted evidence, ignored important and significant evidence and completely misunderstood the concept of institutionalised racism and racial discrimination.  That is much too general to merit separate consideration.  Clearly, in so far as there are grounds of that kind, they are dealt with in the individual paragraphs that follow, and the same is true of ground 5 which develops that point.  

13	Paragraph 6 quotes from Lord Scarman’s report of his inquiry into the Brixton disorders.  Having rejected the allegation that Britain was an institutionally racist society (and this is of course dealing with the situation many years ago)  Lord Scarman made some observations about the need for serious consideration and swift remedy where practices adopted by public bodies or by private individuals unwittingly discriminated against black people.  It is alleged that the Tribunal failed to the discharge the responsibility of giving the matter serious consideration, but the whole hearing before the Tribunal was about an allegation of racial discrimination, as well as an allegation of unfair dismissal, and the Tribunal expended a substantial amount of time and effort in making findings and reaching conclusions on that very point.  A Tribunal is exercising a statutory jurisdiction and must answer the questions before it in accordance with the statute.  It would not have assisted, in our view, to have departed from that in the more general way that this ground suggests by reference to Lord Scarman’s report and we see no error of law raised by this ground.

14	The next, Ground 7, quotes another report, that of the Macpherson inquiry into the death of Stephen Lawrence, and alleges that the Tribunal fails to acknowledge the extent to which the evidence showed Ms Steele was treated unfairly and less equally in comparison with others on the staff.  But that is a pure question of fact and of the Tribunal’s assessment of the evidence and discloses no arguable ground of appeal in law.

15	Ground 8 again refers to the Macpherson Report and to its definition of institutional racism, and this ground of appeal alleges that there were racist consequences for Ms Steele and her witness Ms James, both black women of Trinidadian origin.  But the bare assertion that they were racist consequences of course begs the very question which the Tribunal had to consider among others, namely whether or not if there was less favourable treatment to Ms Steele, which indeed they found there was, the reason for that less favourable treatment was racial discrimination.  

16	Ground 9 again refers to the Macpherson Report, but for the same reasons as ground 8 there is no arguable ground of appeal there.

17	Ground 10 refers to evidence of some alleged advice which the Chair of the governing body gave to Mr Hay, and it is summarised in the ground of appeal in these terms: 

“here are things to bear in mind - follow these procedures - if you want to get rid of Ms Steele”.

18	If that was in evidence, and we take it that it was, then that was a matter that clearly was considered by the Tribunal.  Remarks of that kind can of course, bear different interpretations, depending on exactly what is said and the context, and the words put before us themselves are only said to be a summary.  It is perfectly proper for the Chair of a governing body to remind a Head of the proper procedure to be followed when a capability issue arises and the need to adhere strictly to that procedure.  There would be nothing wrong with that at all.  Whether the colour of the remark allegedly made by the Chair was of that kind or of a more sinister kind was entirely a matter for the Tribunal, and we are not in a position to substitute any view of our own, even if we had formed one, which we have not.  

19	Ground 11 again raises a question of fact and the assessment of evidence, raising allegations that:

“black witnesses from the ‘institution’ were also enrolled by the Respondents to put the seal of ‘non-racism’ and professional respectability on the exercise”.

20	Whether the witnesses, whether black or white, called before the Tribunal were credible and what weight should be given to their evidence was entirely a matter for the Tribunal and does not raise any arguable ground of appeal in law.

21	Ground 12 goes back to the Lawrence enquiry report and to some evidence by a Police witness to that enquiry.  It clearly raises no separate arguable ground of appeal.

22	Ground 13, to which 12 seems to be introductory, refers again to one of the black witnesses called by the Respondents.  The relevance of that and the credibility and weight to be given to her evidence again are matters of the assessment of evidence and fact for the Tribunal and raise no arguable ground of appeal in law. Indeed the second part of that ground simply repeats the substance of what we have already dealt with in addressing ground 11.

23	Ground 14 alleges that the Tribunal demonstrated a profound failure to appreciate the nature of institutional racism, and there is a reference to yet another report, the Crawford report.   It is said under part A of that ground that Mr Hay, aided and abetted by Ms Beecham, the Chair of Governors and Ms Tucker, an Inspector, were part of Hackney’s and the school’s institutionalised racially discriminatory responses to Ms Steele.  That is covered by the remarks which we have already made in dealing with earlier grounds of appeal of a similar nature, and the same is true of part B of ground 14, which refers to an address by Mr Gus John in 1993 to Hackney’s education managers, and of part C, which refers to an OFSTED report.  

24	Ground 15 refers to what are called three particular strands of evidence that the Tribunal failed to draw together.  That has only had to be stated to be seen to be a criticism of the Tribunal’s treatment of the evidence and conclusions from it and not an arguable ground of law.

25	Ground 16 alleges that the Tribunal failed to probe Ms Beecham’s motives, as revealed by her evidence, and the working relationship between her and Mr Hay.  That again is a matter of fact and the assessment of evidence and the same is true of ground 17 which criticises the fact that Mr Hay copied to Ms Beecham letters he wrote to Ms Steele.  

26	Ground 18 raises a matter dealt with in the reasons of the Tribunal, in that on 28 January 1996, Ms Bimla Thakur of the Advisory and Inspection Unit wrote after carrying out a pre-OFSTED development visit (and this is a quotation from her report):

“The school … has some teachers who are in need of considerable support”.

27	The next paragraph of the Tribunal’s findings goes on:

“Subsequently, Mr Hay identified from Ms Thakur that only one teacher, Ms Steele, needed considerable support.  Mr Hay, therefore, asked Ms Thakur to change her letter at paragraph 9 in order to reflect the true position”.  

And she did.   

28	That is criticised in ground 18, and it is said that the Tribunal failed to probe her ready acquiescence in amending her letter to suit the demands of the head teacher and his designs on Ms Steele as a target for dismissal.  But of course the whole question was whether it was done in response to his demands and his designs on Ms Steele, or whether it was done in order to make a factual correction on the basis that Ms Thakur had, perhaps tactfully, first of all been more general than she intended to be, and that was a matter of fact and evidence for the Tribunal.

29	Ground 19 deals with the fact that the circumstances of the assault on Ms Steele in October 1993 were not raised before the capability panel which decided on her dismissal, although they were before the appeal panel which heard her appeal.  Clearly whether they were to be raised at the first hearing was entirely a matter for Ms Steele, and that was clearly understood by the Tribunal in reciting the history and giving its reason for its decision.  We see no error of law in the Tribunal’s treatment of those circumstances.

30	Ground 20 is an allegation about the conduct of one of the Respondent’s witnesses, and manifestly is a matter for the assessment by the Tribunal of the demeanour and credibility of witnesses who appear before it, and not a ground of error of law on their part which can concern us.

31	Ground 21 concerns what are alleged to be discrepancies exposed by the RR65 questionnaire.  They are said to be wrongly dismissed by the Tribunal but that again was a matter of fact and evidence for the Tribunal not of law for us.

32	The same is true of ground 22, which arises because one of the matters which the Tribunal recites in going through the history is the fact that shortly after Ms Steele’s dismissal her witness Ms James was short-listed for the post of curriculum leader.  She was short-listed by Mr Hay and others and eventually interviewed together with five other candidates.  Mr Hay was on the interviewing panel and Ms James was the successful candidate.  The Tribunal expressed the view among their reasons, although it seems to be a subsidiary one after they had gone through the list of main reasons, that Mr Hay had, as they put it.

“…every opportunity to block Ms James’s appointment if it was his agenda to racially discriminate against teachers from a black Trinidadian ethnic background”.

33	It is alleged in the grounds of appeal that that was an improper conclusion for the Tribunal to draw and that in fact Mr Hay could not have blocked the appointment.  The realities of short-listing and interview in such circumstances, where the head teacher is one of the persons concerned, may be debatable, but they were clearly a matter of fact and evidence for the Tribunal and do not show any error of law which would entitle this Appeal Tribunal to interfere or which would be arguable at a full hearing.

34	Ground 23 alleges a misinterpretation of Ms Steele’s own evidence, especially her responses to Mr Hay following his lesson observations and her responses to the capability-hearing panel.  The significance of that is that it is recorded - and the accuracy of this is not challenged by Mr German – that Ms Steele’s response invariably, or almost invariably, to Mr Hay’s criticisms was to accept them and to ask for time to improve, and that was quite clearly also her approach to the capability hearing.  Whether the Tribunal rightly or wrongly interpreted that undoubted fact was entirely a matter for them and not anywhere near the area of law with which we are concerned.  

35	Ground 24 concerns an allegation plainly pursued, as Mr German pointed out to us, in his closing address to the Tribunal that Mr Hay had formed a negative view of Ms Steele at a school where both he and she previously taught, although perhaps not at the same time, and the case presented to the Tribunal clearly was that that was a preconception, formed from no proper capability investigation and indeed perhaps from what Mr German called “gossip or hearsay”, but that matter was clearly pursued before the Tribunal and again well within their province  as judges of fact, not one for us to interfere with.  

36	A related but not the same point is pursued in Ground 25, which concerns reports by Ms Phelps, a retired head teacher who had been brought in to assist Ms Steele to improve but also to report on what progress was made in that regard.  It is said that Mr Hay agreed in cross-examination that her reports showed that the relevant targets were being met, and Mr German complains that the Tribunal stopped his cross examination on this point on the basis that he had  established the point and need not pursue it further and then, as we understand it, he complains that the Tribunal did not nevertheless take that point adequately on board in its reasons.  But in truth the Tribunal deals with the matter fully in its reasons and does accept the favourable elements in Ms Phelps’ reports.  And since they had the reports themselves before them they perfectly legitimately have considered that since they spoke for themselves there was no need for Mr German to continue a cross-examination of any length of Mr Hay as to what Mr Hay thought of them.  There is no arguable ground of appeal under that head.

37	Ground 26 returns to the exclusion or reduction of Ms James’ evidence already dealt with under grounds 2 and 3 and we need say nothing further about it. 

38	Ground 27 raises a fresh point.  It is alleged that the Tribunal shows by paragraph 2 of its reasons that the Tribunal’s thinking, as it is put:

“Seems to focus on acts of motivation whereas the law is concerned with the nature of the process and its end-result”.

39	The fact of the matter is that paragraph 2 of the Tribunal’s reasons is not setting out its own approach to the law at all;  it is summarising the issues as identified, it is said, by Ms Steele although in fact it must have been by Mr German because he was putting her case to the Tribunal, and the references to motivation appear in that list of issues.  The Tribunal sets out its own understanding of the law in paragraph 6 at very substantial length by reference to the statute and to authorities and none of the grounds of appeal attacks that statement of the law.  That is where the Tribunal directs itself as to what matters it should consider and then, when it comes to reach a conclusion on the question of whether there was racial discrimination, if contrary to its primary finding there was any less favourable treatment of Ms Steele at all, it lists six matters, none of which is concerned with a direct assessment of Mr Hay’s motivation in the way which is criticised in ground 27.  There is therefore nothing in that ground of appeal.

40	Ground 28 submits that it was wrong of the Tribunal to conclude that the arrangements were in any way adequate.  Again that self-evidently is a matter of fact and evidence, as is ground 29 which criticises the Tribunal for ignoring Mr Hay’s spelling and grammatical errors and other weaknesses, as it is alleged, in the Respondent’s evidence.  

41	Ground 30 again is a matter of fact and evidence, namely the difference between the approach of Ms Phelps and Mr Hay and so is ground 40 (there are no numbers 31 to 39) about consultation with the advisory and teaching department.  Ground 41 makes the point that that must be a misnomer because there was no department with that precise title.  It then goes on, however, to make more substantial points but they are again entirely points of fact and evidence, as is paragraph 41, as to the constitution of the capability review panel, and 42 as to the constitution of the capability appeal panel and 43 on the same subject.  

42	Ground 44 alleges that there was no evidence to show the effect of Ms Steele’s teaching on her pupil’s academic progress, and also that the Tribunal ignored evidence about levels of achievement by the pupils.  But that can only be a matter of fact and evidence, as can ground 45 which criticises the failure to draw what is described as the obvious conclusion of discriminatory treatment from Mr Hay’s attitude.  

43	Ground 46 repeats a point made in one of the earlier grounds and raises no separate point.

44	Ground 47 alleges that the Tribunal ignored significant evidence and covers some of the same ground already raised, but insofar as it is fresh it again raises matters of fact and not of law.  

45	The same is true of ground 48, which deals with class size and class-room circumstances.

46	Ground 49 is by way of general summary of all the allegations of shortcomings, as it is alleged, by the Tribunal in dealing with the evidence before it.  We therefore find no arguable ground of appeal to justify sending this appeal forward to a full hearing and it is dismissed.