Appeal No.	 EAT/959/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR D G DAVIES CBE
MRS M E SUNDERLAND JP

MR S BHATOOLAUL	APPELLANT

LEYTON SIXTH FORM COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J WAITHE
(of Counsel)
Messrs M M Khan & Co
Solicitors
7A-9A South Road
Southall
Middx  UB1 1SU	

	JUDGE JOHN BYRT QC:		This is a preliminary hearing in an appeal from a decision promulgated on 4 June of this year of an Employment Tribunal sitting at Stratford, whereby they held that the employee’s complaint of unfair dismissal, racial discrimination, victimisation and breach of contract all failed.  The employee, Mr Bhatoolaul, appeals.

	The facts are as follows:  the Respondents run a sixth form college which was incorporated in 1992.  The Appellant was a teacher in economics and business studies there, and had been so since 1 September 1988.  His employment continued with them until 21 October 1996 when he was summarily dismissed for gross misconduct.  

	This question of unfair dismissal came about in this way.  On 11 July 1996, the last day of the summer term, a party of teachers decided that they would go out and have lunch in a local public house.  It was a party without time limit; it started at 12.00 and went on until 2.00.  Teachers were expected to come and go as they were able to do so in accordance with their teaching duties.  However the Appellant left to go to the public house at 12.00 and in doing so, he effectively cancelled a lecture class he was due to take between 12.00 and 1.00.  His account was that he had put up a notice on the door, instructing the students to go and work in the library. 

	At the party he saw a Mr Nilson, who was the head of his department and told him what he had done.  Mr Nilson, on going back to the college, then went to the room where the Appellant would have been teaching the students, in order to remove such notice as was there, in case there might be some confusion at a subsequent class.  When he went there, he saw that there was no notice, but there were a couple of students who told him that there had been no notice put on the door. Mr Nilson reported what he found and in consequence the vice principal of the college summoned the Appellant to a disciplinary hearing on 16 September.  The Appellant told the hearing how he had made provision for the class, the notice on the door and the instructions as to what the students were to do.  He also called a student, a Mr Hatchett, to corroborate that he had put a notice on the door.  As a result of his calling Mr Hatchett the disciplinary hearing accepted his evidence and in consequence indicated there was no need to hear two other witnesses who had been lined up.  Following their considerations, the disciplinary hearing decided it would be appropriate to give the Appellant a formal written warning.  Not satisfied, the Appellant decided he would appeal that decision.  During the investigations which took place prior to the hearing of the appeal, the investigating officers learnt first that Mr Hatchett was not a member of the Appellant’s class at all.  In the circumstances, that may or may not have been crucial, but they also discovered that he had not been in college for that particular week which included the 11 July because he had been away, engaged on work experience, and therefore he could not honestly have given the evidence the Appellant called him to give before the disciplinary hearing.

	On hearing these matters, the College management immediately suspended the Appellant.  That was on 4 October and a disciplinary hearing was arranged for the 18 October.  The gravamen of the charge he had to face on that occasion was that he had procured Mr Hatchett to give false evidence at the disciplinary hearing on 16 September.

	Mr Bhatoolaul was represented by Mr Khan and Mr Khan asked for Mr Hatchett to attend that disciplinary hearing.  Mr Hatchett declined.  The person conducting the disciplinary hearing, Mr Keogh, principal of the college, declined to compel him to do so.  But according to the findings of fact of the Tribunal, he told the Appellant he could call any witness he liked, including in particular Mr Hatchett.  

	In any event, the disciplinary hearing decided that the charge was proved.  Mr Bhatoolaul was summarily dismissed.  There was an appeal on 8 November and that appeal confirmed the dismissal.

	The Employment Tribunal considered the case of unfair dismissal.  They were satisfied that the reason for the dismissal was conduct.  They then went on to consider the appropriate matters under section 98(4) of the Employment Rights Act and found that the employers had a genuine and reasonable belief after proper investigation that the Appellant was guilty of what he was charged with, namely procuring the attendance of Mr Hatchett to give false evidence on 16 September.  They concluded that dismissal was appropriate.  It was within that broad band of what was a reasonable response.  They therefore rejected the claim of unfair dismissal.

	Mr Bhatoolaul appeals on the basis that their conclusion was perverse.  What he says is that it was a breach of the rules of natural justice for him to be denied his request that Mr Hatchett should be called before the disciplinary hearing.  We have listened to that allegation with great care.  Mr Waithe has argued the point before us and we put to Mr Waithe what was it that Mr Hatchett could have said had he been called.  He could not have supported the Appellant’s case in any way, and Mr Waithe at the end of arguing this matter, ended up by conceding that this particular ground of appeal was not sustainable.  With great respect to his initial argument we think he is right about that.  We do not see that the Employment Tribunal went wrong in their directions on law or on the applications of the law to the facts they found, and there is no way we can see that we can disturb their finding that there was a fair and proper dismissal.

	Mr Waithe has then addressed us on the allegations of racial discrimination and victimisation.  The facts on which he makes his claim are as follows:  In 1992 a model staff contract was negotiated with the trade unions at national level and that contract included what is known as a capability procedure.  There were complaints against the Appellant about his competence from his own students in his own class.  In 1994, there were two complaints; in 1995 there were five complaints made in the first three months of that year and the evidence adduced before the Employment Tribunal was that that was more complaints than any other lecturer in the college.

	The college therefore decided that they would implement the capability procedure and that took place in two stages.  Stage one was that, in consultation with the line manager, a programme of support was devised which included training and counselling.  It included observation, by supervisors.  The emphasis on this particular procedure was that it should be supportive and not punitive.  The second stage was where the supervisors were required to report to the principal on what they saw in their observation sessions.  Stage one was implemented on 24 April 1995.  Mr Bhatoolaul’s teaching commitments were reduced so that he could give more time to preparation.  There were weekly meetings with the head of his department, Mr Nilson, and there were observers put into his class from time to time to watch his progress.

	Unhappily, things did not go too well.  On 11 July there was a report which recommended that the capability procedure should move forward to the second stage.  However, discussion took place about the matter, and it was agreed that there should be an extended period under stage one.  In fact it was extended until 9 October 1995.

	During that period the Appellant attended three courses at a centre for Higher Education Studies, London University, all aimed at assisting Mr Bhatoolaul to learn additional skills in how to present his lectures before a class.  Unhappily on 19 January of the next year, there was a further report presented which recommended that as the standards of the Appellant’s teaching had not improved, stage two should be implemented.  The Appellant then started to raise allegations of racism.  He consulted the Commissioner for Racial Equality.  As the result of points put forward to the college management, it was agreed that stage two would yet once more, be suspended in order to allow for further consultation and advice to be taken and also to afford Mr Bhatoolaul the opportunity to take advantage of the grievance procedures.

	That opportunity of pursuing his complaints through the grievance procedures was not taken up by the Appellant.  It was made plain to the Employment Tribunal the reason why they were not, was that the grievance procedures had not been something which had been negotiated with the unions and in consequence, he did not have over much confidence in their integrity.  In any event the complaints would be made to the same managers who had in fact had been observing him at various stages of the capability procedures.

	On 29 April 1996 the stage two of the capability procedures was reinstated.  They were extended until the 4 October.  Unhappily on 3 October a delegation came forward from his class, complaining about his teaching style and methods. It was said he was primarily concerned with attending to their homework rather than lecturing.  In any event, as a result of the complaint of 3 October, a report was made out and sent forward to the principal of the college the same day.  That matches in with the events I have already related concerning the unfair dismissal.  It was on 4 October that t he Appellant had been suspended because of the allegations made that he had procured Mr Hatchett to give false evidence.

	In any event, because of the allegations I have just mentioned, the Appellant was dismissed.  The matter came before the Employment Tribunal. I have already dealt with the allegation of unfair dismissal but there were also the allegations of racial discrimination to be considered.  The Employment Tribunal dismissed the complaints however on the basis that, the burden of proof being upon the Appellant, he had failed to produce any evidence of comparisons to show that he had been treated less favourably than another person. Mr Waithe has argued that there was plenty of evidence before the Tribunal of comparators and they just overlooked it.

	We invited Mr Waithe to put before us passages in the documentary evidence which would demonstrate that this evidence of comparators was before the Tribunal.  Unhappily the conclusion of all of us on this Tribunal is that there are none which show that the Employment Tribunal were wrong in their assertion that there was no evidence of a comparator.  

	Mr Waithe also referred to the fact that there was another incidence of racial discrimination in 1994, when the Appellant had put himself forward for the position of deputy head of his department.  He was one of three candidates.  His qualifications were, it is said, by far and away the best and the fact that one of the other two had been appointed instead of him, showed there must have been discrimination.  It is notable from the examination of the extended reasons that whilst the competition for this job is recited as part of the historical facts of the case, there is no reference to any of the issues which would have been discussed and considered had this been raised before the Tribunal as an incidence of racial discrimination.  There is no reference in the extended reasons to the qualifications of the other two candidates and had this issue been raised as an incidence of discrimination, had they been put forward as comparators in this case, we are quite certain that those facts would have been recited.

	The Tribunal drew attention to the fact that 20% of the teaching staff of this college were from ethnic minorities.  They relied on the evidence of Mr Keogh, the principal, whose evidence they found to be completely honest and acceptable. Mr Keogh said that right from the time Mr Bhatoolaul finished his probationary period in 1989, the Appellant had been complaining about his lack of promotion and discrimination, and whenever he tried, as principal of the college, to get to grips with this allegation which he deemed to be serious, he found that the Appellant was quite unable to explain or articulate the nature of the discrimination he was complaining about.

	The Employment Tribunal came to the conclusion that when the Appellant was giving evidence before the Tribunal, he was still unable to describe the nature of the racial discrimination about which he was complaining, and they came to the conclusion that all he succeed in manifesting was a lack of acknowledgement of his own shortcomings.

	We have considered with care the Tribunal’s approach to this question of racial discrimination.  We have to take into account their finding that there was no evidence of comparators and that being so, it is almost impossible to conceive how the Appellant could have succeeded on this particular allegation.  Along with it goes the allegation of victimisation; they stand or fall together.  In those circumstances, we can see no arguable point of law which could go forward to a full hearing of this Tribunal, either on the unfair dismissal issue or on the allegation of racial discrimination or victimisation.  The Employment Tribunal noted that the separate allegation of breach of contract had not really been argued before them.  Mr Waithe, in addressing this Tribunal, has not advanced any further argument in support of that particular allegation either and in those circumstances, we do not take that into account.

	In all the circumstances therefore, we see no alternative for us at this particular stage, but to dismiss the appeal and accordingly we do so.