Appeal No.	 EAT/1027/01/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 2002

Before
HIS HONOUR JUDGE J ALTMAN
MRS M T PROSSER
MR R N STRAKER

MR A B GHOSH	APPELLANT

LONDON BOROUGH OF TOWER HAMLETS
& OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or
representation by or 
on behalf of the Appellant

HIS HONOUR JUDGE J ALTMAN

1	This is an appeal from the Employment Tribunal held at Stratford on four days in October 2000, and two days in June 2001.  It was a long hearing and the Tribunal gave a very comprehensive Decision over some 31 closely typed pages.  The appeal comes before us by way of preliminary hearing to determine if there is a point of law properly arguable in full before the Employment Appeal Tribunal.  

2	Unfortunately, Mr Ghosh is not able to be here today.  He has a sickness note relating to multiple joint pains and depression which is not specifically related to Court attendance, but relates to work, and on 16 October, the Listing Officer wrote on behalf of the Registrar to Mr Ghosh, pointing out that there had been two previous adjournments earlier this year and that the matter should remain in the list, and pointing out the options of attendance, sending a representative, or relying on written submissions.  

3	It is important that this matter comes to a conclusion.  It is never a perfect solution that an appellant is unable to appear before the Employment Appeal Tribunal.  However, these matters must be dealt with with reasonable expedition, and a further adjournment is clearly contrary to the interests of justice.  Balancing all the considerations, therefore, we have decided to proceed with the appeal and we take into account the written submissions that have been made by Mr Ghosh.  

4	The original complaint to the Employment Tribunal was of unfair dismissal and discrimination, victimisation on grounds of both race and sex.  The Employment Tribunal dismissed all those complaints.  They dealt, in the early part of the Decision, with the various procedural difficulties that had arisen, and the delays, and the number of different applications, but resolved in the Applicant’s favour to deal with all the applications that he had made.  

5	The Tribunal then turned to the fact that there was a substantial dispute on the evidence and they set out the background history which shows that the Appellant is a man of very considerable academic qualification and academic success, going back to the fifties and sixties, and even as early as 1988.  The Employment Tribunal then turned to some of the issues that were before them and that did not relate to the disciplinary investigation; we are not sure what part they formed in the thinking of the Tribunal, there is always a risk that irrelevant matters may form some part, but it does not appear in this case that they formed any adverse part in the final Decision.  

6	The Tribunal then dealt with a section dealing with the refusal to obey reasonable instructions from the line manager, and set out the factual history of the matter which shows that there were, on the Respondents’ view, a number of occasions when that occurred.  

7	The Tribunal then dealt with the allegation of abusive and threatening behaviour against the Applicant, alleged to have been directed towards other members of staff, and they instanced a number of occasions when that was alleged to have occurred as a background to disciplinary processes.  

8	Then the Tribunal dealt with unauthorised absence from the school site during working days.  Again, occasions were referred to, particularly in 1997, coupled with allegations of lateness.  It appears that the Applicant accepted a number of the allegations.

9	Then there were regular occurrences of lateness to work without adequate explanation, but what happened before the disciplinary panel was that those allegations were actually rejected and the Tribunal had to make no findings about it at all.  

10	The Tribunal then dealt with the refusal to obey general instructions and guidelines relating to whole school policies and they set out a number of failures alleged in that respect.  The Tribunal found that in one instance, the Applicant should have realised the inappropriateness of his action in leaving children unsupervised, but in relation to the allegation of failing to supervise examinations properly, it appears that the Tribunal were unable to assess that because the teachers who complained about that did not give evidence, and the Applicant denied any improper behaviour.  

11	The Tribunal then turned to dealing with the refusal to comply with specific management requests, including requests to attend formal meetings by the head teacher, which was apparently admitted, and then non-compliance with job description during working hours.  

12	That was quite an extensive catalogue of allegations.  The Tribunal then went on to look at the procedure adopted by the Respondents which involved reference to Occupational Health, and doctors and disciplinary procedures, and they examined in some considerable detail the procedure that was adopted.  

13	The Tribunal then turned, when dealing with unfair dismissal, to the law.  They rejected a number of the allegations that were made.  They came to a view on it.  They approached the issue of race discrimination in the same way, going into some detail as to the allegations that were made and the conclusions that were to be drawn.

14	Turning now to the Notice of Appeal, it is alleged that the Tribunal did not act fairly in trying to side with the Respondents and confuse the Applicant.  We have found no basis for that.  Of course a party inexperienced in Tribunals may feel that that is happening simply because the Tribunal is making an adjudication which is in favour of the other side, but it is of course the job of a Tribunal to decide which side of the argument appeals to it and which does not.  

15	Then, dealing with the various charges to which I have referred, it is alleged that the Tribunal was biased, siding with the Respondents, ignoring the Applicant.  Far from that, it is quite clear on the face of the Decision there was a careful analysis of all the evidence.  It is suggested that the Tribunal was vague in making its Decision and gave insufficient weight to the Applicant’s account.  We find no basis for that.  The Tribunal are entitled to form judgments on the facts they found and there is no error of law.

16	Then a number of matters relating to procedures, about the ratio of Asian to white teachers, the grievances, complaints about missing documents, and a number of matters were referred to.  It is suggested that they were not considered properly and that the unfairness was vivid.  We have searched in vain throughout the Decision of the Employment Tribunal to find any unfairness.

17	So far as the unfair dismissal is concerned, Mr Ghosh quotes a number of aspects of it, and suggests that they were not considered properly on the points of law.  We find no basis for that contention.  

18	It is contended that the Tribunal unfairly mixed early retirement and unfair dismissal, and we find no basis for that argument either.  

19	The Tribunal, it is said, sided with Mr Tiscoe’s conclusion of three gross misconducts, but did not consider going through them in detail.  It seems to us that the Tribunal was entitled to form a view on the facts before it in the way they did, and there is no error of law.  

20	In relation to race discrimination and victimisation, a number of quoted issues are referred to and, again, it is said they were not properly dealt with, but again, we simply to have to look at this very careful, thorough and comprehensive Decision to find ourselves unable to find any support for Mr Ghosh’s argument in that respect.  

21	It is suggested that the Tribunal confused the Applicant by mentioning which one from the original application or better and further particulars would serve and kept aloof about the fact that the Applicant was not given any opportunity to further his career.  It seems to us that such an opportunity was, perhaps, a part of the consideration, but we find no factual basis for the allegation that the Tribunal kept aloof.  

22	We recognise that it is often difficult for applicants to deal with applications and further and better particulars and other such documents, but there is no evidence here that the Tribunal Chairman was doing anything other than trying to conduct the case in accordance with ordinary practice, and there was no error of law here.  

23	It is suggested that the Tribunal was partial in looking at the Respondent’s witnesses and completely ignoring the Applicant, but the purpose of a Tribunal is to adjudicate upon competing evidence, as I have said, and we find no basis for criticising their preference of one side before the other.  

24	Mr Ghosh then deals with the question of students’ witness statements, and a series of facts which were allegedly not viewed by the Tribunal.  However, this is not a case in which it can be said that there were important issues of fact upon which the Tribunal did not address themselves.  One never covers absolutely everything in a decision, but there is quite sufficient in the Decision for us to be satisfied that the Tribunal addressed all the essential issues before them, and they demonstrate clearly in their Decision their approach to the matter.  

25	Mr Ghosh concludes with an opinion that he had a strong impression that legal Reasons should adopt a new dimension, which he describes.  We respect his opinion in that connection, if that is how he feels, but, of course, we simply have to apply the law as it is, and applying the law as it is, we find no arguable error of law in the Decision of the Tribunal, and the appeal is therefore dismissed at this stage.