Appeal No.	 EAT/0204/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 December 2001

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MISS C HOLROYD

MR M S SHOJAEE	APPELLANT

(1) GREENHEAD GRAMMAR SCHOOL 
(2) CITY OF BRADFORD METROPOLITAN COUNCIL
(3) MR MILES MIZON - HEADMASTER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR M S SHOJAEE
(The Appellant in person)	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Mr Shojaee, the Applicant before an Employment Tribunal sitting at Leeds under the chairmanship of Mr J R Barton over 12 days last year, against the Tribunal’s decision, promulgated with Extended Reasons on 18 December 2000, dismissing his complaints of racial discrimination and victimisation plus bullying and conspiracy brought against (1) Greenhead Grammar School (the school), (2) City of Bradford Metropolitan Council (LEA) and (3) Mr Miles Mizon, the school’s headteacher.

2	Background
The Appellant, who is of Iranian racial origin, commenced employment with the school on 
1 September 1989.  That employment continues, he is a teacher of physics.  The school population is a racial mix.  It has 867 secondary school age pupils, of which 60% are of Pakistani racial origin, 31% white/European and 9% Bangladeshi.  Of the staff of 58 teachers, 7 are of Pakistani origin, 1 Bangladeshi plus the Appellant.  The Tribunal accepted that the school is committed to the recruitment of staff of different ethnic origins to both teaching and support posts.  The head, Mr Mizon, is, among other things, a member of the Keighley Racial Equality Council.

3	The nature of the Appellant’s case before the Tribunal was that in a number of respects, he was treated less favourably than white teachers, particularly in the allocation of teaching groups.  He felt that he was being excluded from ‘A’ level teaching opportunities.  He complained that there was a conspiracy against him by Mr Mizon, other teaching staff, OFSTED Inspectors and his own trade union representative.

4	The Tribunal considered these various allegations and rejected them on the facts.  There was no conspiracy.  If there were differences in treatment they had nothing to do with his race.  There was no protected act to found any complaint of victimisation under Section 2 of the Race Relations Act 1976.  When he complained to the Governors his complaints were thoroughly examined.  In short, there was nothing in his claims.  In any event, many of the acts complained of, the Tribunal found, were out of time and it was not just and equitable in their view to extend time under Section 68(6) of the Act.  Accordingly the complaints was dismissed.

5	The Appeal
The Appellant lodged a Notice of Appeal dated 24 January 2001, supported by an affirmation dated 7 March 2001, complaining of bias on the part of a Chairman, Mr D J Latham, who held a directions hearing on 9 December 1999 and by Mr Barton who chaired the substantive hearing.  In addition we have before us a statement from Mr Michael Robinson, who was a fellow teacher at the school with the Appellant and who gave evidence on his behalf before Mr Barton’s Tribunal.  To those allegations Mr Barton has responded by a letter to the Employment Appeal Tribunal dated 1 August 2001, as have the 2 lay members of the Employment Tribunal, Mr Golightly and Mr Hardacre.  

6	Our jurisdiction is limited to correcting errors of law.  We cannot retry the facts  We therefore look first for any misdirection in law on the part of the Tribunal. The potential legal issues raised by the Appellant are: -

(1)	Direct racial discrimination.  We are quite satisfied that the Tribunal correctly directed themselves as to the meaning of direct discrimination under Sections 1(1)(a) and 4(2)(b) of the Act.  The Appellant’s complaint here is really as to the Tribunal’s findings of fact on the questions raised by those statutory provisions.  
(2)	Victimisation.  The Tribunal found at paragraph 16 of their reasons that the Appellant had failed to make out any protected act for the purposes of Section 2(1)(d) of the Act.  That was a permissible finding in our view.  The Appellant in challenging that finding took us, for example, to the witness statement of his head of department, Mr Lister, as evidence of an earlier complaint by the Appellant amounting to a complaint of racial discrimination.  In fact the passage from Mr Lister’s statement reads as follows:

“I do recall asking Mr Shojaee, although it may not have been at this meeting, whether he was accusing me of acting in a racist way.  He said he was not.  I also asked him if he felt the school was acting in an institutionally racist way.  He said it was not.”

Far from supporting a case that he had made a relevant complaint, that particular piece of evidence indicates that he expressly disavowed an earlier complaint of racial discrimination.

(3)	Time limits.  At the directions hearing held before Mr Latham on 9 December 1999 that Chairman directed as follows:

“In respect of the issues as to whether some of the applications are out time bearing in mind the complexity of the issues that are likely to be raised by the applicant and the period of time over which it was maintained, the acts that occurred and the fact that he was maintaining that they were continuous acts, there would be no preliminary hearing on whether such matters were out of time but any out of time issue and jurisdiction issue would be dealt with by the full Tribunal at the full substantive hearing.”

It follows that both parties were fully aware that at the substantive hearing before Mr Barton’s Tribunal, which commenced on 27 March 2000, issues of limitation and therefor of jurisdiction could and should be raised.  

7	Mr Shojaee has submitted that the Respondent did not raise any question as to limitation until counsel’s closing address.  We find that a curious submission bearing in mind the direction given in December 1999 and the clear opportunity for the Appellant to explain why he had not presented a complaint earlier in respect of the earlier matters in time.  He says that he was not given a fair trial and a proper opportunity to deal with the question of limitation.  We are quite unable to accept that submission.

8	Finally, Mr Shojaee complains of the way in which the Chairman conducted the substantive hearing.  He complains of bias or the appearance of bias and procedural irregularities in particular in relation to his application for witness orders.  We will deal with that last point first.  It seems that initially Mr Shojaee applied for witness orders in relation to 35 people, subsequently he pared that down to some 5 or 6 witnesses in addition to those who were to be called by the Respondent.  The reason he wanted to call those witnesses, mainly his line managers, was in order to demonstrate that they had told lies to the panel of governors which investigated his complaints internally.  As the Chairman points out in his comments on the Appellant’s affirmation in these appeal proceedings, it is not open to a party to call a witness in order to cross-examine him.  That seems to us to be a perfectly sound reason for declining the witness orders.

9	More generally, having seen how he puts this part of his case and the comments of the Chairman and the lay members, our clear impression is that the Chairman handled a difficult long case with remarkable patience and fairness.  The Appellant has wholly failed to make out his complaint to us of bias or the appearance of bias or that he was denied his right to a fair trail under Article 6 ECHR.  

10	The reality, in our view, is that this appeal is a straightforward attempt to reargue the facts or have another lengthy Tribunal hearing and thus a second bite of the cherry having failed on the first occasion.  We shall permit neither.  This Tribunal reached a permissible conclusion in this case.  The appeal is dismissed.