Abiola v North Yorkshire County Council & Ors UKEAT 0369/08/0701
The appeal of an unsuccessful Claimant on perversity grounds against the dismissal of his claims for discrimination on the grounds of race and victimisation failed on the facts.
Appeal No. UKEAT/0369/08/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 23 April 2009
Judgment handed down on 7 January 2010
HIS HONOUR JUDGE SEROTA QC
MR D CHADWICK
MR M CLANCY
MR A ABIOLA (APPELLANT)
NORTH YORKSHIRE COUNTY COUNCIL AND OTHERS (RESPONDENTS)
Transcript of Proceedings
For the Appellant MR A TUCKER (of Counsel)
Instructed by: Messrs Thorpe & Co Solicitors 17 Valley Bridge Parade Scarborough YO11 2JX
For the First Respondent MR E LEGARD (of Counsel)
Instructed by: North Yorkshire County Council Legal Services County Hall Northallerton North Yorkshire DL7 8AD
For the Second Respondent MR S HEALY (of Counsel)
Instructed by: Messrs Morgan Cole Solicitors Apex Plaza Forbury Road Reading Berkshire RG1 1AX**SUMMARY**
PRACTICE AND PROCEDURE: Perversity
RACE DISCRIMINATION: Direct / Indirect
The appeal of an unsuccessful Claimant on perversity grounds against the dismissal of his claims for discrimination on the grounds of race and victimisation failed on the facts.
The First Respondent, an Education Authority was entitled to decline to give a substantive answer to a letter seeking advice and assistance, after the commencement of proceedings, where the reason for the First Respondent's conduct was not that proceedings had been commenced but that the proceedings remained on foot and the First Respondent reasonably considered it might be prejudiced in the proceedings by giving a substantive reply and offering further assistance; Chief Constable of West Yorkshire Police v Khan  IRLR 830 applied.
The cases of Yeboah v Crofton  IRLR 634 and Meek v City of Birmingham  IRLR 250 are well known to anyone who sits in the Employment Appeal Tribunal. In future copies of those cases should not be supplied to the Employment Appeal Tribunal. It is perfectly possible for advocates to refer to the principle of those cases, without referring to the report. A quotation of the appropriate citation in a skeleton argument will generally suffice and it will only be in rare cases that it is necessary for a copy of the entire case to be provided.**HIS HONOUR JUDGE SEROTA QC**IntroductionThe Parties
- The Claimant describes himself as being of African/white descent. He qualified as a teacher in approximately 2000 at Keystage 2 Primary School level.
- The First Respondent is the Local Education Authority for North Yorkshire. The Second Respondent in the Spring of 2004 took over responsibility for the First Respondent's Supply Teacher Pool.
- The Third to Ninth Respondents are the governing bodies of various primary and junior schools in North Yorkshire.
- This is an appeal by the Claimant from a judgment of the Employment Tribunal at Thornaby on Tees dated 10 December 2007 (Dr J Watt being the Employment Judge). The Hearing lasted 11 days, the Employment Tribunal spent 3 days in Chambers and have produced a Judgment of some 80 pages.
- The Employment Tribunal dismissed a number of complaints by the Claimant including:
(a) Direct discrimination contrary to Sections: 4(1)(a) and 4(1)(c) of the Race Relations Act 1976 against the First, Second, Third, Fifth, Six, Seventh, Eighth and Ninth Respondents.
(b) Claims of indirect discrimination under Section 1(1)(b) of the Act against the First, Second, Third, Fifth, Six, Seventh, Eighth and Ninth Respondents.
(c) A claim for victimisation under Section 2(1)(d) of the Act against the First and Second Respondents.
(d) A complaint that the First Respondent aided the Second Respondent in unlawful discrimination contrary to Section 33 of the Act,
(e) A complaint that the First Respondent had refused or omitted to provide training opportunities to the Claimant contrary to Sections 13 and/or 14 of the Act.
- The Claimant withdrew claims of direct and indirect discrimination against the Fourth Respondent. He failed to establish that the governing bodies of the various Respondent schools were agents of the First Respondent for the purposes of Section 32 of the Act.
- The ET1 was presented on 20 July 2006, against the First Respondent. It contained claims of direct discrimination, indirect discrimination and victimisation. The Second to Ninth Respondents were subsequently added to the proceedings by way of amendment.
- On 7 March 2007 a further claim was made against the First Respondent and various schools alleging that they had discriminated against the Claimant by requiring recent teaching experience as a criterion for his employment. The discrimination alleged was both direct and indirect, in particular in not short-listing the Claimant for interview, and also victimisation. The Claimant was ordered to pay a deposit in relation to those claims.
- On 30 March 2007 a further ET1 was presented alleging victimisation against the First Respondent.
- The Employment Tribunal's Judgment was sent to the parties and entered in the Register on 10 December 2007.
- The Claimant's Notice of Appeal was initially out of time and an application to extend time was refused by the Registrar on 21 January 2008. However, after hearing evidence from the Claimant HHJ McMullen QC extended time. Subsequently, on 27 August 2008 Judge McMullen directed that the Notice of Appeal should be considered at a Preliminary Hearing.
- On 16 December 2008 the Employment Appeal Tribunal (presided over by HHJ Reid QC) directed that the matter should proceed to a full hearing (the seal date of the Order is 18 December 2007). On that occasion, however, the appeal was permitted to go forward against the First and Second Respondents only and the appeal in so far as it concerned the other Respondents was dismissed. Further, Grounds, 2, 4 and 7 as set out in the Notice of Appeal were excluded and directions were given for an amended Notice of Appeal to be served to comply with the directions of the Employment Appeal Tribunal so that there were subsequent directions in relation to various evidential matters.
- The Claimant is aged 53. He describes himself as being of African and white British decent. He graduated with a degree in biology in 1997 but decided on a career change in about 1999 when he enrolled on the PGCE course and received a qualification from Manchester Metropolitan University. He was qualified as a teacher at Keystage 2 Primary in the year 2000. He therefore had the status of a Newly Qualified Teacher ("NQT") until he had completed the mandatory induction year in a state maintained school. During his teacher's training he undertook teaching practice in two schools in Manchester.
- The Claimant had lived in Scarborough in North Yorkshire from about 1997 so he sought teaching posts in North Yorkshire
- The Employment Tribunal found (see paragraph 14.02) that he was seeking work in what appeared to be a particularly competitive area of the country. Teaching jobs were highly sought after in North Yorkshire. Statistics at page B71 appear to bear out the high number of applications for each job. There was evidence, for example, from Bedale School that it had over 100 applicants for a teaching post. The area had a low turnover of teachers and did not appear to have had any specific difficulties in recruiting male or science teachers. The position as to teachers from ethnic minorities is another story.
- The First Respondent maintains schools, including the Third to Ninth Respondents but those Respondents have delegated powers including powers of recruitment. The First Respondent, as the Local Education Authority, has the right to attend interviews and advise on appointments but in practice it never attended appointment interviews and proffered advice only when it was asked. Advice was made available by the First Respondent for schools that paid for it, however, schools were able to obtain advice from any source. Schools were in a position to require the First Respondent as Local Education Authority to employ any teacher they had selected.
- The Employment Tribunal did not employ teachers directly save in specialist categories not relevant to these proceedings. It was an important finding by the Employment Tribunal because the Claimant's case was that the First Respondent should have provided him with a teaching post.
- Statistical evidence before the Employment Tribunal showed that the average employment of white British teachers for Yorkshire and Humber was 95.1 per cent. North Yorkshire was in the upper quartile with 97 per cent white British. It was apparent from the figures before the Employment Tribunal (see paragraph 14:49) that predominately rural areas of North Yorkshire and the East Riding had the least number of teachers from ethnic minority backgrounds whereas the big conurbations of West and South Yorkshire had the greatest number. The percentages for black or black British teachers totalled 0.5 per cent for the whole region, which includes black Caribbean, black African and other black backgrounds. The only authorities recorded as employing teachers from those ethnic groups were the large cities of Sheffield, Bradford and Kingston upon Hull.
- In 2001 the Claimant sought employment in North Yorkshire. He sought employment from individual schools rather than the First Respondent. Later he sought employment in West Yorkshire and did undertake some work in Wakefield until August 2001 but the details of this were sketchy.
- The First Respondent wished to know details of that employment, for example as to whether it was continuous because this was relevant to the question of whether the Claimant had completed two-thirds of the one year mandatory induction course. The Employment Tribunal expressed concern at the Claimant's failure to be forthcoming in relation to the work he had done in West Yorkshire and to give references; the Claimant, the Employment Tribunal found, had not been particularly forthcoming about the reasons for not continuing to work at Wakefield other than to say that he wished to live in Scarborough, the expense of maintaining a home in Scarborough while working in Wakefield was too much for him. The Employment Tribunal had difficulty in reconciling this assertion with the fact that he was prepared to consider full or part-time jobs in schools in North Yorkshire, many of which were more distant or more difficult to access from Scarborough and Wakefield. The Employment Tribunal concluded:
"Accordingly, the Claimant's home base explanation, his obvious reluctance to provide a full account of his time in Wakefield and his refusal to offer references from what appears to be his longest period of employment, all gave us cause to doubt that the given reason for leaving Wakefield fully reflected the truth of the matter."
- In the autumn of 2001, the Claimant maintained that he contacted the First Respondent with a view to going onto its supply pool. He maintained that he was told that the pool did not accept NQT's otherwise than through agencies. Accordingly the Claimant signed up with two agencies, Supply Desk and Select Education. He was, however, only offered limited work. He never systematically identified the schools at which he worked or the periods which he worked and at no time did he ever provide references from any of these schools. The Claimant maintained that the nature of supply teaching was such that a school would not be able to provide any kind of teaching reference as no one would have knowledge of his classroom performance. The Employment Tribunal (see paragraph 14:8) found that it had evidence before it that strongly suggested that primary schools were sometimes able to form judgments on supply teachers as did one Head Teacher, Mr D Evans.
- In the autumn of 2002, the First Respondent changed its supply pool policy and on 21 October 2002, the Claimant was informed by the First Respondent in standard terms that notification of inclusion in the pool would not be issued until satisfactory clearances and references had been obtained and that an applicant would not be able to work until he or she had been notified of inclusion.in the pool. The Employment Tribunal found that although the application received by the Claimant in October 2002 was dated 15 December 2002 when completed, it was not received by the Respondent until 20 February 2003. The Employment Tribunal observed:
"However, by proposing a much later date for the start of the process, particularly in the context of the Claimant's allegations of unreasonable delay on the part of the Respondent, this latter date conveniently excludes a four month period of inaction at the inception, which appears to be entirely attributable to the Claimant."
- The application form stipulated that the Claimant was required to supply two references, one being from the latest or current employer. The Claimant never attempted to comply with this requirement at any stage. The Employment Tribunal (see paragraph 14:10) found that the requirement for a reference from the most recent employer was "an almost universal practice". The Claimant provided as references Manchester Metropolitan University and the school where he had done a seven week teaching practice in Manchester (St Anthony's Roman Catholic Primary School). This School subsequently refused to give a reference. No references were given from more recent posts obtained through Select Education or even from his longest period of teaching in Wakefield.
- The First Respondent, when it received the Claimant's application unsuccessfully attempted to contact him. He did not respond until September 2003. The Employment Tribunal rejected the Claimant's case that the First Respondent was delaying and found that the main cause of delay was the Claimant. The First Respondent had wished to discuss with the Claimant the omission of current references. After St Anthony's declined to provide a reference, the First Respondent suggested that the Claimant find an alternative. After some delay he nominated the Teaching Agency Select Education but the processing of the application was delayed by the Claimant in providing a contact name at Select Education.
- In November 2003 after a discussion with the Claimant, the First Respondent sought a reference. It received a reference from Select Education and also from Manchester Metropolitan University which was dated 20 May 2002. The references were generally encouraging but there were reservations which pointed to the need for examination of the Claimant's more recent experiences. The reference from Select Education was somewhat guarded. Then, after the Claimant said that St. Anthony's would provide a reference after all, a rather equivocal reference was received from St. Anthony's by telephone on or about 27 November 2003.
- On 14 November 2003 the Claimant wrote to the First Respondent to complain of the delay in getting on to the Supply Teaching Register and of his failure to obtain a permanent post. He also drew attention to the under-representation of Afro-Caribbean teachers in North Yorkshire. The First Respondent's substantive response was that the Claimant had failed to provide sufficient details of his teaching history and sufficient references. Again the First Respondent had difficulties in contacting the Claimant. It asked for fuller details of his employment history and more recent references. These matters were discussed by telephone in December 2003 on at least two occasions. The Claimant evidently declined to provide details of the schools where he had taught in Wakefield or where he had been placed by Select Education. He was given advice as to how he might obtain teaching experience and further references. It was also accepted that ethnic minority teachers were under-represented in North Yorkshire. The First Respondent did not have all the details. The Claimant did not respond for some five months until 24 April 2004. The Employment Tribunal considered that this letter misrepresented the advice that he had been given in December 2003 by Ms Taylor of the First Respondent because it suggested that the Claimant was informed that
"I was not to be accepted on to the county's supply register either until (sic) I had a more recent teaching reference. On inquiring how I was expected to get new references when no one in my own area will employ me I was advised to seek some sort of voluntary teaching placement in local schools to gain such a reference."
The Employment Tribunal noted:
"Although obtaining voluntary experience was suggested by Ms Taylor that was a secondary consideration. The primary point was that Ms Taylor had identified that the claimant seemed to have had substantial experience in Wakefield and had teaching engagements through Select. Any of these employments could have potentially satisfied the requirement for recent teaching experience. If references from those employments had been forthcoming the claimant would have been accepted thus completely avoiding the need to secure additional teaching experience. However, for whatever reason the claimant has throughout consistently refused to identify those schools or to offer any of them as a reference. Accordingly the formulation that he used in his letter was demonstrably disingenuous."
- At Easter 2004 the First Respondent stopped maintaining the Supply Pool register. It was then oversubscribed and thereafter it was to be handled by the Second Respondent as from September 2004, the start of the new academic year. The maintaining of the Supply Pool was thus out-sourced. The agreement between the First and Second Respondents provided, however, that the Second Respondent would take over "pipeline applications". It was decided on the grounds of cost and administrative considerations that applicants who had made uncompleted applications should make a fresh application to the Second Respondent.
- On 18 June 2004, the First Respondent received a further complaint from the Claimant which bore the date 24 April 2004. The Claimant complained that he had not received a substantive response to his complaints. He was informed that the Second Respondent was taking over the register and that he could apply for jobs advertised on the website and that he would be sent a weekly teachers' vacancy bulletin. He made a further complaint on 21 July 2004 saying that he was in a vicious circle. He could not get a reference because he had no recent experience but he could not get a job to obtain recent experience without a recent reference. He wanted direct help and assistance in gaining a position or placements and to be given teaching experience so he could obtain the fresh references that he needed. The Claimant also appears to have written to the Department of Education and Skills, which made various suggestions that do not appear to have been taken up by the Claimant.
- On 11 August 2004, the First Respondent sought a full employment history from the Claimant but the Claimant failed substantially to comply with this request despite advice from the First Respondent's office in Scarborough. He still did not provide details of the schools at which he had worked at Wakefield or for Select Education and gave no satisfactory explanation for not doing so. He again wrote to the First Respondent and contacted Ms Crawford, the Respondent's Recruitment Manager in Harrogate, who, in an attempt to assist the Claimant, spoke to a school in Scarborough (where the Claimant had in fact worked) to see if that school could offer the Claimant voluntary work but there was a very negative response as to his abilities from the Head Teacher.
- On 1 September 2004 transfer of the pool from the First Respondent to the Second Respondent took place. At this point in time the Second Respondent in its answer to the questionnaire at B245 suggests that there were approximately 370 teachers at key stages 1, 2 and 3 on the Register at the relevant time. Although the Employment Tribunal found there had been maladministration in not passing on pipeline applications and requiring applicants such as the Claimant to start again and make fresh applications, the Employment Tribunal found that this decision was not discriminatory. There was no evidence of any discrimination. Further, the contract between the Claimant and Second Respondent (as with other Local Education Authorities) was that training would be supplied as and when made available by the First Respondent because the Second Respondent did not provide training. The First Respondent did not provide training to supply pool teachers because of the cost and its limited financial resources. The Employment Tribunal found that this policy was applied to all teachers; see paragraph 14:26. The Claimant complained that the decision to transfer responsibility for the pool register to the Second Respondent was discriminatory; see decision paragraph 14:29. The Employment Tribunal recall, the Claimant's evidence in these terms:
"North Yorkshire County Council informed me that the North Yorkshire Supply Register was now being handed over to the Eteach agency and that I would have to reapply through them in September of that year. This was yet another delay that the First Respondent deliberately created in the application process. By delaying further processing of my application until Eteach took over supply pool management in September not only were four to five months added to the time before I could become [sic] on the supply register. But the whole process would have to start again from the beginning. I cite this as another deliberately discriminatory act against me by North Yorkshire County Council."
- The Employment Tribunal found that the Claimant did not act expeditiously in lodging an application. The Second Respondent's application was not received until 20 October 2004. Given that the Claimant had been told in June that he could have submitted the application at the beginning of September the reason for the delay was not explained. The Second Respondent duly took up references. There were issues as the Claimant needed up to date criminal record checks and needed to prove current membership of the General Teaching Council (GTC). The Claimant by reason of unemployment had not been able to pay the annual fee to the GTC. The Claimant again saw this as a delay designed to make him "give up and go away".
- On 8 October 2004 a meeting took place with Ms Crawford, the Recruitment Manager for North Yorkshire, in Harrogate at the invitation of the First Respondent. The Claimant attended wearing track suit bottoms and Ms Crawford did not think this was appropriate. The meeting was also attended by Ms Raine (General Adviser to primary schools in the Scarborough area). Detailed advice was given to the Claimant on how he could improve the presentation and content of his applications. It was suggested to him that he might seek some voluntary work or even work as a teacher's assistant to get classroom experience and he was offered assistance, by way of the review of draft letters and applications he was preparing followed by written feedback. The Claimant, however, did not make contact with Ms Crawford again until June 2005 and did not take up offers of assistance (see the Employment Tribunal's decision at paragraph 14:36). Notwithstanding the eight month hiatus for which the Claimant had no explanation he was minded to blame the First Respondent for the delay and suggested that the advice offered was in fact motivated by a discriminatory intent. The Employment Tribunal found it extremely difficult to follow the Claimant's reasoning in this regard. The Employment Tribunal noted that the First Respondent's position was that all it could do was to provide advice to the Claimant and that it was apparent from the record that on a number of occasions it attempted to do so.
- There followed a time when there was a delay in obtaining references. The Employment Tribunal rejected the Claimant's case that he had supplied them.
- Initially (and in error) the Claimant's name was shown on the Register by the Second Respondent as being "live" when in fact he was not. When the error was noted he was removed from the Register. He was, however, offered two positions through the pool but he was not in to receive calls informing him of the offers and the posts were filled elsewhere.
- On 11 June 2005 the Claimant raised a further complaint, again raising issues of discrimination. On this occasion he had to chase the First Respondent before he received a response dated 22 July 2005. The Employment Tribunal was somewhat critical of the First Respondent in this regard; see paragraph 14:37.
- The Second Respondent's computer log contained a number of entries between 23 and 30 September 2005. It is apparent that the Claimant thought he was the victim of racist behaviour and shared his views with the Respondents. The Respondents maintained that he could not go live on the system in the absence of satisfactory references which he had still failed to provide. There is also a reference of 23 September 2005 in the Second Respondent's log, in which it is suggested that Ms Crawford had complained of an issue with the Claimant's personal hygiene. The Claimant was restored to the pool on 30 September. Ms Crawford's evidence was that when Ms Rimmer of the Second Respondent told the Claimant that the First Respondent would only accept him on the Register when suitable references were provided he called her a racist.
- The Employment Tribunal found the complaint of failure to place him on the supply teacher pool register, assuming that it might be regarded as a discriminatory act by the Second Respondent, had an end date of September 2005 when he was put on the Register. The Claimant should have brought those complaints prior to the end of December 2005 but he did not raise them until July 2006. The Employment Tribunal found that they were raised more than six months out of time and were clearly time barred and no application had been made to extend the time.
- At paragraph 14:34 the Employment Tribunal made findings in relation to the remark about personal hygiene, which the Employment Tribunal found to be extremely offensive with there being no evidence to justify the allegation. The Employment Tribunal was also satisfied that the Claimant had accused two officers of the Respondent of being racist. The decision made by Ms Crawford to restore the Claimant to the Register was a pragmatic not a principled decision, made not because of any threat of legal proceedings, as the Claimant asserted, but because, after a long period of attempting to secure compliance with the reference requirement, the First Respondent simply gave up trying, and recognised that the Claimant, either could not, or would not comply. The Claimant submitted that the Employment Tribunal should have found that the reason why Ms Crawford changed her mind and waived the requirement of references would have cast doubt generally on her credibility (which the Employment Tribunal was minded to accept) and thus the Employment Tribunal may have taken a more favourable view of the Claimant's credibility. We observe that this is simply not an appropriate issue to be taken on appeal to the Employment Appeal Tribunal. It does not raise any issue of law simply a question of credibility which is entirely for the Employment Tribunal and the case put forward by the Claimant comes nowhere near the standard required for a perversity appeal.
- The Claimant received no offers through the Second Respondent (save for the two to which we have referred when by the time he expressed interest, they had been taken up by other teachers). The Employment Tribunal noted that many schools did not use the services of the Second Respondent but had their own source for supply teachers, as for example the case of Mrs Hyatt whose school had four teachers with whom they were comfortable, to whom they could turn at short notice. The Employment Tribunal (paragraph 14:43) found that the majority of schools did not use the services of the Second Respondent. Only 16 per cent of the First Respondent's schools had used the Second Respondent (14 out of 155 schools). (The mathematics here seems to be somewhat suspect although it may possibly be explained by the reference to the pie chart at B398). The Employment Tribunal also found that only 30 out of 370 teachers in the pool ever received work through the Second Respondent. If one limits the figures to teachers at Key Stages 1-3 (see the figures at page B245 and the pie chart at B398) one finds that 92 per cent of teachers on the pool never received any work. The schools tended to use their own contacts or other agencies.
- On 15 February 2006, the Claimant responded to the letter of 22 July 2005. He received no response and sent a further letter on 18 March 2006. In these letters the Claimant raised concerns that he had been seeking a post for four years and had been turned down by reason of lack of experience. He complained of institutional racism in North Yorkshire. He maintained the First Respondent was flouting the law by refusing to answer questions in relation to ethnic recruitment statistics and he raised questions as to what was to be done. The response did not come from the Director of Education but from the Personnel Adviser, Mrs Rothery. The reply failed to address equal opportunity matters. The Employment Tribunal was obviously alert as to whether this might evidence a discriminatory culture and commented on this at paragraph 14:37. On 26 April 2006, Ms Crawford responded but addressed practical issues rather than dealing with the allegations of discrimination and equal opportunities. The Claimant was disappointed and wrote again to the First Respondent on 28 April 2006, and the First Respondent's Director of Education replied on 26 May 2006 answering the Claimant's questions. She noted that ethnic minority teachers in North Yorkshire were under represented as a percentage of the ethnic minority population. She noted that the schools to which the Claimant had applied had reported a large number of candidates and also in some cases commented on the quality of his application. She arranged with the Head of Overdale Community School, Mrs Hyatt to offer the Claimant voluntary work to give him relevant recent teaching experience to support future applications. Further, she would be happy to review his applications and supporting letters and offer him assistance with future job applications. On 29 June 2007 the Claimant met Mrs Hyatt. The meeting was not a success because the Claimant expected he would be offered a job and believed that the First Respondent was under a duty to provide him with one. The First Respondent, on the other hand, believed it had no power to offer the Claimant a job but would facilitate his applications. The Claimant complained to the Director that he was only offered work as an Assistant in class but that was of no use to him as it would not lead to work of a level where Mrs Hyatt could provide a teaching reference. The Director responded that Mrs Hyatt considered voluntary work would assist in giving the Claimant classroom experience. This was an opportunity offered to others in similar circumstances. The First Respondent was not in a position to offer employment to the Claimant because the employment of teachers was for governing bodies of the relevant schools.
- On 15 July 2006 the Claimant again wrote to the Director and challenged his statement that the First Respondent was not in a position to offer him a teaching post and again raised equal opportunities matters. He also asserted that the First Respondent was under a duty to ensure he could serve his induction year in North Yorkshire. The letter was described by Mr Tucker, his Counsel, who did not appear below, as a diatribe which extends over two pages and contains complaints about the Claimant's perceived mistreatment in somewhat robust terms. The letter concludes:
"You ask what support I need in seeking employment. I have told you. I need active intervention to circumvent the obstruction I have referred to with regard to my getting a first job in professional development. At the very least I need active teaching experience to be made available by way of long-term or short-term employment, a placement, long-term supply, maternity cover, emergency cover or otherwise, for a period that will gain me an up#to#date teaching reference, following my years of fruitlessly trying for employment. I need it to be made possible for me to serve my Induction year in the County. And I need to see urgent active steps being taken to get schools to comply with their duty to employ black teachers."
- On 20 July 2006 the Claimant issued his ET1, and in the circumstances the First Respondent decided not to respond to the letter of 15 July. The failure to respond to the letter was alleged to amount to victimisation by the Claimant but his claim in that regard was struck out as being out of time. Therefore, he in effect repeated the terms of that letter in a further letter of March 2007, as we shall come to shortly. On 21 July 2006 the Claimant delivered a Race Relations Act questionnaire. On 1 October 2006 because of the low level of usage and the cost of accreditation the Second Respondent gave notice to the First Respondent that it was ceasing recruitment to the pool.
- On 15 March 2007 the Claimant wrote the letter to which we have already referred. The purpose of this letter was in effect to set up the Respondents to "victimise" him again as he would see it. The First Respondent responded reiterating the points set out in the letter of 22 July 2006. The Claimant then in further proceedings alleged victimisation by reference to an alleged refusal to address his complaints. At paragraph 14:44 the Employment Tribunal set out the First Respondent's equal opportunity policies and advice to schools including the advice that they should usually seek references from the current or last employer. The Employment Tribunal noted that although it requested schools to return equal opportunities monitoring forms there had been a significant degree of non-compliance. The Claimant's case was that the First Respondent failed to achieve various aims and targets in its equality plan and on the limited evidence available the Employment Tribunal was inclined to agree.
- At paragraph 14:49 following the Employment Tribunal referred to various statistics. The Employment Tribunal noted that the statistical evidence provided by the Claimant was clearly inadequate as although it showed the percentage of black and minority ethnic teachers in Yorkshire and Humbershire as a whole (including the East Riding, Leeds, York and other areas outside North Yorkshire) and the percentage of black minority and ethnic (BME) in the population as a whole there was nothing to show the effect of any policy custom or practice on BME applications, in particular whether requirement of a recent reference and teaching experience had a disproportionate effect on BME candidates. BME teachers in North Yorkshire were under represented in percentage terms with reference to their percentage of the national population and the predominately rural areas of North Yorkshire and East Riding had the least number of BME teachers. Further the evidence disclosed that the rate of turnover among teachers in North Yorkshire was below the regional average and substantially below the national average at 4.53 per cent as opposed to a national figure of 7.32 per cent. The statistics in the view of the Employment Tribunal were not particularly full or comprehensive. Mrs Crawford's evidence was that the First Respondent was trying to attract more BME teachers and the Employment Tribunal at paragraph 14:52 found there was no evidence to contradict her. Modest progress had been made in the recruitment of Asian teachers but statistical evidence could not show patterns in relation to male and black African teachers. In paragraph 14:53 the Employment Tribunal dealt with the recruitment process in so far as it necessitated checks on applicants and the need to obtain comprehensive information and the checking of work experience and history. This would include requiring applicants to set out their full employment history in chronological order. At paragraph 14:54 the Employment Tribunal made reference to the document "Safeguarding Children and Safer Recruitment in Education" issued in 2006 by the Department of Education and Skills in which a reference from the last employer of a teacher applying for a post was advised.
- At paragraph 14:57 the Employment Tribunal then start to deal with the cases of the various school governing bodies against whom complaint was made when the Claimant had unsuccessfully applied for jobs. We say no more about this because we are not concerned with them in this appeal and in each case the Employment Tribunal had found there was a fair selection process and no discrimination.
- The Claimant's evidence to the Employment Tribunal was (as described by the First Respondent in its skeleton argument) that the First Respondent's staff, especially those in the Educational Department were consciously racist, acted out of malice and bad faith in their dealings with the Claimant and were dishonest in their dealings with him throughout.
- The Employment Tribunal firstly considered a number of procedural matters and gave explanations as to why it did not allow part of the Claimant's claim for victimisation to proceed. It also explained why the Tribunal held it had no jurisdiction to determine whether the First Respondent was in breach of the equality standard for local government, breaches of Part III of the Race Relations Act or other matters within the regulatory framework of local government. These matters are not germane to the present appeal.
- On 5 March 2007, Employment Judge Hargrove had identified the claims as being (a) direct and indirect discrimination by reason of the failure to register the Claimant on the database of supply teachers for schools in North Yorkshire initially kept by the First Respondent to September 2004 and thereafter by the Second Respondent; (b) direct and indirect discrimination on the part of the First and Third to the Eighth Respondent by reason of failure to list the Claimant for interviews for teaching posts; (c) the failure by the First Respondent to accept the Respondent for vocational training contrary to Section 13 of the Race Relations Act 1976; (d) victimisation by the First and Second Respondents; (e) in relation to indirect discrimination it was noted that the PCP (Provision Criterion or Practice) alleged by the Claimant was that he should be accepted for registration to the database and for short-listing for interview subject to a requirement of recent teaching experience and references in respect of that experience.
- Those were the issues the Employment Tribunal had now to determine.
- The Employment Tribunal set out the facts as we have attempted to summarise them above. It directed itself as to the law; we note that no particular issue was taken by the Claimant as to the Employment Tribunal's self-direction as to the law. The Employment Tribunal directed itself in relation to (a) discrimination under the Race Relations Act (b) victimisation (c) cases on the burden of proof (d) authorities on the meaning of an act extending over a period (e) the provision of vocational training (f) the aiding of unlawful acts (g) the drawing of inferences (h) indirect discrimination (i) the Code of Practice on racial equality issued by the CRE.
- The Employment Tribunal in its conclusions dealt with a number of issues as to time and jurisdiction, and whether the Claimant had made allegations of an act extending over a period. These are matters in respect of which there is no appeal before us.
- The Employment Tribunal rejected the case that the schools were to be regarded as the agents of the First Respondent. It accepted that the Second Respondent was an agent of the First Respondent and also that it was an employment agency for the purposes of Section 14 of the Race Relations Act.
- In relation to victimisation, the Claimant alleged that he had been victimised by the First Respondent as principal and the Second Respondent as agent, firstly by delaying his registration in the supply pool, secondly by the failure to provide him with in-service training, and thirdly by his removal from the pool and subsequent reinstatement. These complaints are not contained in the first ET1 presented in July 2006 although that claim did mention being put in and then being removed from the supply pool and also the failure to supply him with work.
- The Employment Tribunal (paragraph 48) concluded that the three matters we have referred to were finite and not continuing acts and had an end date no later than September 2005. The Claimant had made no application to be permitted to proceed with the claim in respect of those matters out of time.
- In relation to the Claimant's claim that he had been subject to victimisation for the failure to provide him with work: that claim was not time-barred but was rejected on its merits. The Claimant did not get work but there again neither did 92 per cent of those in the supply pool. There was no evidence of any link between the protected acts (the only protected acts were said to be the Claimant's complaints about breaches of the First Respondent's obligations) but there was nothing to link those complaints to the operation of the supply pool.
- The Claimant had resurrected his letter of July 2006 by repeating it on 8 March 2007. When the First Respondent refused to respond he had alleged victimisation.
- The Employment Tribunal concluded (at paragraph 51) that the matters raised by the Claimant were all encompassed in the proceedings and the law provided a process to determine interlocutory matters giving the Respondents a period of time to serve responses etc. The Claimant in effect was seeking advance disclosure of the defence and the Respondent's evidence, the subject of the pending proceedings, without regard to the structure and timetable the law stipulated. In reality, he was seeking to override those necessary protections the law allows a Respondent.
- The Employment Tribunal considered that the facts of this matter fell fairly within the decision of the House of Lords in Khan v Chief Constable of West Yorkshire 1001 1 WLR 1947. Further, after the pleadings had closed the Claimant received a full reply. The First Respondent was entitled to protect its position until the close of proceedings but thereafter took the not unreasonable view no substantial prejudice would be suffered if it replied after the close of pleadings and exchange of witness statements.
- The Claimant maintained that there were long delays before he was put on the supply pool, that he was not given supply work, that he was not appointed to teaching positions and that he was not offered training. Although the Claimant maintained the reason for those things was his race or ethnic origin, the Employment Tribunal was unable to draw such inferences merely from the juxtaposition of those facts. It was insufficient to suggest that the reason for all those happenings was anything to do with the Claimant's race or ethnic origin. Indeed in relation to most of those events the Claimant could not even show that those matters constituted less favourable treatment.
- In relation to the failure of the First Respondent to offer the Claimant jobs, that was solely the schools' responsibility and right. That was the unchallenged evidence of the First Respondent and any NQT in the same circumstances as the Claimant who had not done a protected act would have been treated in the same way.
- The Employment Tribunal noted (see paragraph 55) that the majority of the delays were attributable to the Claimant; certain delays were attributable to the Respondents' administrative malaise where matters were not promptly followed up. There was nothing to suggest the delays had a discriminatory explanation.
"55. Accordingly, in this regard there were no facts on which inferences of discrimination could properly be drawn. There was no evidence identifying an actual or hypothetical comparator who would have been treated more favourably than the claimant. On all the material facts before us we were unable to find that a prima facie case had been established that these delays constituted acts or omissions of a discriminatory nature. Accordingly the burden of proof did not move to the respondents.."
- In relation to the fact that the Claimant had to "start again" in the spring of 2004, the Employment Tribunal found nothing to raise any inference of discriminatory conduct even if the decision might have been characterised as unreasonable. The Employment Tribunal was satisfied that the suspension and "start again" policy applied to all pending applicants, all teachers seeking registration on the supply pool were treated in exactly the same manner. Even, contrary to the Employment Tribunal's view were the burden to be transferred, the First Respondent's explanation appeared to be entirely credible; namely that the reason for suspending the pool and making all pending applicants reapply was that the supply pool was already oversubscribed and suspending the pool at that point was a matter of convenience and cost saving to the First Respondent. The Employment Tribunal also considered that just because the First Respondent may have acted unreasonably it did not follow that that conduct was discriminatory.
"All of the evidence pointed in the other direction, namely that this was a policy applied to everyone equally. Accordingly on such facts it was not possible to conclude that this was discriminatory conduct on the part of the First Respondent."
- The Employment Tribunal then went on to consider the delay after the Second Respondent took over responsibility for the register. The Employment Tribunal found that the enquiries made by the Second Respondent were entirely proper and that delays in part were necessitated by the legislation, and by the application circulars of the Department of Education and Skills. There was nothing to shift the burden of proof. If the Employment Tribunal was wrong about this the Second Respondent's explanations for those delays were entirely cogent and reasonable. It had a duty to satisfy itself that all necessary requirements of law and policy had been met to ensure that it was appropriate to register the Claimant on the supply pool.
- The Employment Tribunal then considered the mistake in offering work to the Claimant in June and July. The facts showed that the Claimant was not cleared to teach and no further explanation was required. The Claimant wrongly believed he had been put on and taken off the Register but this was not so. Further the First Respondent had no knowledge of this.
- The Employment Tribunal then considered the entry of the Claimant on to the Register, the First Respondent having waived the requirement for references. The Employment Tribunal found that the requirement for references was a very necessary requirement and was concerned why it was relaxed in the Claimant's case. It accepted the explanation given by Ms Crawford that as no references were going to be produced, she in effect gave in. This did not suggest to the Employment Tribunal either that there was no need for references or that the requirement was discriminatory. It was an entirely appropriate requirement that all teachers were expected to meet.
- The Employment Tribunal then turned to the hygiene remark. The Employment Tribunal was satisfied that Ms Alison Freer, an administrative assistant with the First Respondent, had made some remark about the Claimant in which she alleged an unspecified hygiene problem. The record made by Ms Rimmer was an accurate and a reasonable summary of what was said to her. But Ms Freer had no decision-making authority or influence; there had been no discussions between Ms Crawford and Ms Freer about this and Ms Crawford was completely unaware Ms Freer had made this remark. Ms Crawford had said she thought the way the Claimant was dressed at the meeting in October 2004 was inappropriate. She had never had any concerns about the Claimant's hygiene and made no remarks. Neither the Claimant nor Ms Crawford was aware of this remark at the time. Ms Crawford could not have been influenced by the allegation as she was unaware of it. The Employment Tribunal concluded:
"In these circumstances we are unable to infer anything other than this was an entirely gratuitous observation, that it had no foundation in fact and we understood why the claimant found it to be very offensive."
The Employment Tribunal did not consider the evidence to suggest that the comment related to the Claimant's race or ethnic origins. In those circumstances the burden of proof had not shifted but if it had the Employment Tribunal were satisfied with the explanation of Ms Crawford that she had never said anything of this kind and did not know why it had been said and had no knowledge of the matter so that it did not and could not have affected any of the decisions she took at the time.
- The requirements of the Second Respondent in relation to the provision of references were neither unreasonable nor improper nor designed to prevent the Claimant being registered. They applied in the case of all LEAs for whom the Second Respondent acted. It also applied across the board of all teachers on the pool. There was no prima facie case of discrimination.
- In relation to the allegation that the Second Respondent failed to offer work to the Claimant, this was not supported by the evidence. There was no evidence that the First Respondent directed the Second Respondent not to offer the Claimant work. He was among the 92 per cent of teachers on the pool who did not get work. There was nothing from which discrimination might be inferred.
- The Employment Tribunal found that the failure on the part of the First Respondent to offer the Claimant work was not discriminatory: it had no work to offer.
- The Claimant's claim in relation to the failure to provide training was unsustainable. The First Respondent did not provide training to any NQT.
- In relation to indirect discrimination, we have already noted that the Employment Tribunal considered the statistics were insufficient. It accepted, however, that the percentage of BME teachers employed in North Yorkshire was less than appropriate but, nevertheless, no prima facie case of discrimination had been made out.
- The Employment Tribunal considered the complaint that the PCP in relation to references had a disparate effect on BME teachers but there was no evidence to support this; rather such limited evidence as there was before the Employment Tribunal was to the contrary. Thus evidence from the school at Bedale suggested that candidates from BME backgrounds were fully able to comply with the reference requirements. The Employment Tribunal considered "overwhelmingly" that it was a proper and essential requirement that the First and Second Respondents, and also the schools obtained appropriate references. The references served a number of essential functions including verifying information required to meet statutory requirements and Central Government policy safeguards. The Employment Tribunal continued:
"We could see no reason why the claimant could not have complied with the requirement and we found his explanations for his failure to comply most unconvincing."
- The Employment Tribunal considered that the Claimant, who had worked at schools in Wakefield through agencies as a supply teacher, could have nominated any of those employers to provide him with a reference. Had he done so at the time of his applications the Employment Tribunal considered there was little doubt that the reference issues would have been resolved at a very much earlier stage.
"The claimant's contention that the schools where he had undertaken supply teaching could not provide a reference did not convince the Tribunal. The remarks made by Mr Evans (Head Teacher of a school in Scarborough) clearly indicated that that school had formed a view of the claimant as a result of his supply teaching appointments at that school. It was not a favourable view but did indicate to us that schools can form some kind of an assessment as to whether a supply teacher has been a success or not."
- The Employment Tribunal was critical of the Claimant for having failed to offer a cogent explanation as to why no referee could have been nominated from Wakefield. It was also critical of the Claimant's failure to detail all the schools in which he had taught.
- The Employment Tribunal concluded that the Government had made it quite clear that it was incumbent on schools to satisfy themselves as to the details of the career history of teachers and to look at any gaps in that career and find explanations for those gaps. Thus, when officials of the First Respondent made suggestions to the Claimant regarding possible referees from within the career pattern that had been disclosed to them they were acting perfectly reasonably. It was the Claimant's conduct that caused the problem with references not that of the First Respondent. The Employment Tribunal was satisfied the issue of references had nothing whatever to do with the Claimant's race or ethnic background.
"70. For whatever reason the claimant was not prepared to provide the necessary references from periods of his employment where on the facts that he had presented there ought to have been referees. Accordingly in relation to this question of references the claimant was entirely the author of his own misfortune. We could find nothing on the facts that had been established before us to suggest that this provision criterion or practise of requiring referees was in any way indirectly discriminatory. The facts as presented to the Tribunal by both parties did not constitute a prima facie case. The burden of proof did not pass to the respondents. However if we are wrong and the burden of proof did pass we are satisfied that the requirement for referees was entirely justified and that the actions of the respondents in seeking appropriate references was a proportionate means to satisfy a legitimate purpose."
- The Employment Tribunal then went on to consider the case against each of the Respondents' schools and dismissed them on the facts. It rejected the suggestion that the First Respondent had aided discriminatory conduct on the part of the Second Respondent and also rejected the suggestion that the requirement for a reference was a provision criterion or practice ('PCP') which put persons of the Claimant's race or ethnic origins at a particular disadvantage when compared with other persons or, indeed, that it actually put the Claimant at such a disadvantage; see paragraph 73. The Employment Tribunal also could find no evidence on which to conclude that a person from another race or ethnic background than white British by having to provide the references would be at a particular disadvantage. On the evidence before the Employment Tribunal it did not find that the Claimant was unable to provide such references but that he was unwilling to do so. He could have identified appropriate referees had he chosen to do so. It was his choice not to put forward referees from schools where he had taught.
- The Claimant made it clear that this was a perversity appeal and recognised the high standard required for such an appeal to succeed. The Claimant concentrated on five particular points but raised others (a) it challenged the finding that the absence of compliance by the First Respondent with its statutory obligations under the Race Relations Act 1976 (Statutory Duties) Order 2001 was due to laxity in administrative procedures (2) the finding that the use by the First Respondent and schools of recent relevant experience was justified and not discriminatory (c) the failure to identify what it was that prompted Ms Crawford to waive the reference requirement (d) the finding that the computer print-out relevant to the Claimant's entry on the Second Respondent's system demonstrated contrary, to the Claimant's case, that the Claimant was never in the supply pool before September 2005 (e) the finding that the First Respondent's reliance upon the decision in Khan justified its failure to respond to the Claimant's letter prior to May 2007 or to the Claimant's request for assistance in obtaining work.
- The submissions, therefore, largely concern grounds 5 (part) 6, 11, 14, 15, 18 and 19. The other grounds of appeal were not however "devoid of merit" and we shall consider them in due course.
- Our attention was drawn to the well known authorities on perversity and the approach of the Employment Tribunal to findings of fact. We were referred to cases well- known to us such as Yeboah v Crofton and Meek v City of Birmingham. We would observe that it is perfectly possible for advocates to refer to the principle of those cases which are well known to anyone who sits in the Employment Appeal Tribunal. We would ask that in future copies of those cases are not supplied to the Employment Appeal Tribunal. Many trees have been cut down to produce copies of those cases which are supplied to the Employment Appeal Tribunal it seems on almost a daily basis. A quotation of the appropriate citation in a skeleton argument will suffice and it will only be in rare cases that it is necessary for the entire case to be provided.
- Our attention was drawn by Mr Tucker to the judgment of Sedley LJ in London Borough of Ealing v Rihal  EWCA Civ 623 in which he commented on the employment tribunal having drawn an inference in a case where the Respondent was aware of significant racial imbalance among its employees:
"The ethnic audit figures produced by Ealing for the tribunal hearing and summarised in paragraph 43 of the employment tribunal's reasons are disturbing. (It might have been better if this paragraph had been placed much earlier in the reasons.) In the housing department of the local authority of a multi-racial borough they portray an almost complete racial divide between upper management and the remainder of the staff. With the single exception of Ms Gomer (whose elevation the tribunal found explicable without negativing their general finding) the entire managerial team was white: this in a borough 40 per cent of whose population is from ethnic minorities, and in a local authority whose other departmental senior management teams typically contain about 25 per cent from ethnic minorities. These figures in themselves rightly put the tribunal on inquiry, because they suggested a clear possibility that there was a culture of white elitism in the upper echelon of the housing department. Such a culture, as the tribunal will have been well aware, can exercise a potent influence on individual decision-makers, of which they themselves may be aware faintly or not at all.
Ms Grewal, for the local authority, has relied upon what Balcombe LJ said in Chapman v Simon  IRLR 124, para. 33:
'In order to justify an inference, a tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation.'*
What her argument overlooks is that there was no such want of primary facts here. The sharp ethnic imbalance revealed by Ealing's own figures was enough to entitle - indeed arguably to require - the tribunal to look for a convincing non-racial reason. In a well-run organisation there will be procedures, training and monitoring data capable of reassuring a tribunal that everyone has been treated on an equal footing and that any imbalances are caused by fortuitous or extraneous factors. When the tribunal failed to find an acceptable non-racial reason for the imbalance of which Mr Rihal's history formed part, they were entitled to infer that there was none: see West Midlands PTE v Singh  ICR 614, 619. Their inference was supported by Mr Rihal's own history of persistent non-promotion."
- We were also referred to the Khan case (Chief Constable of West Yorkshire v Khan  I WLR 1947) on the issue of victimisation.
- It was submitted that the failure of the Education Authority to fulfil its statutory duty of ethnic monitoring was a "discriminatory failing" and not an administrative failing. The First Respondent had a duty to monitor its employment and recruitment under the Race Relations Act 1976 (Statutory Duties) Order 2001 and under the CRE Code of Practice to promote racial equality and under Section 71(1) of the Race Relations Act. It was accepted that only the CRE might enforce the duty laid upon the First Respondent but that its failure gave a flavour to other complaints and was relevant in considering whether the burden of proof had been transferred. It was indicative of a culture of not attempting to ensure adequate recruitment of BME teachers.
- The statistics showed that of 511 jobs advertised there was a monitoring response supplied by schools in only 4.11 per cent and there had been a major failure to comply with the statutory duty over a three year period. There was admitted under representation of BME teachers. The First Respondent failed to sufficiently chase schools and without the monitoring information it was not able to say if BME teachers were at a disadvantage and if so what practical steps might be taken to remove this disadvantage. The persistent failure to carry out statutory obligations in the circumstances together with the under representation of BME teachers gave rise to an inference that the failings were discriminatory rather than administrative even if there was no malicious intent. The evidence did not support the Employment Tribunal's conclusion that the fault lay in ineffective administration.
- Mr Tucker submitted that it was an unreasonable conclusion that administrative failure was to blame because this understates the default in the context where there had been persistent non-compliance and the failure to comply with the monitoring obligation should have been aggregated with other matters in the consideration of whether there were facts sufficient to warrant the inference of discrimination so as to reverse the burden of proof.
- Reliance was placed on the concern of the Employment Tribunal (see paragraph 14:37) as to how matters of equal opportunity and race were dealt with in correspondence, paragraph 14:39 where Ms Crawford seems to have ignored these issues. Mr Tucker also pointed in this regard to the lack of statistics by reason of the First Respondent's default as well as the schools and the admitted under-representation of BME teachers. This should have flagged up to the Employment Tribunal that it was proper to draw the appropriate inference of discriminatory conduct.
- The Employment Tribunal was wrong to rule that the First Respondent's requiring evidence of recent experience was justified rather than discriminatory.
- The Claimant could not obtain experience without obtaining employment. He could not obtain recent experience without a job; we observe the Employment Tribunal was satisfied that much of the problem was of the Claimant's own making.
- The requirement would exclude people who had not been teaching in England; that might be overcome as it had been in the cases of other LEAs who recruited from overseas.
- BME teachers were under represented among the teachers employed within the First Respondent's area. Mr Tucker drew attention to other statistics to show that BME teachers were under-represented across the country and across Yorkshire and Humberside as a whole. He accepted that he could not draw hard and fast conclusions but it was consistent with the Claimant's picture and perception in North Yorkshire from the replies to the questionnaires. He accepted, however, that there was no evidence before the Employment Tribunal as to the percentage of black as opposed to other minority groups as pupils in North Yorkshire schools.
- When there is a problem among an identifiable group of gaining experience training must be provided. The First Respondent should have promoted race equality under Section 71 of the Race Relations Act and monitored schools under its aegis. The only person removed from the pool with insufficient references was the Claimant. Therefore he could have been trained on his own and that would have been justifiable under Sections 37 and Section 71(1) of the Act.
- The Employment Tribunal should have drawn the inference that the provision requiring recent experience had a disproportionate impact on black applicants. The requirement that the Claimant should have experience to Key Stage 2 would disqualify all teachers from outside England.
- The Employment Tribunal was wrong to find it was proper for the First Respondent to rely upon references as a prime means of making a decision to employ applicants with regard to the Supply Register.
- It is said that this reliance was contrary to statutory guidelines. The thrust of the argument was aimed at the failure to identify what it was that in the end prompted Ms Crawford to waive the requirements for references. Ms Crawford's action was accepted as having been unique. She had never done this before or since and she consulted no one. The Employment Tribunal did not have a sound basis for accepting her explanation for waiving the requirement. The Employment Tribunal seems to have accepted that Ms Crawford's decision to waive the requirement was irrational because it abandoned safeguards for children. The Employment Tribunal should have found that Ms Crawford waived the requirement because of the Claimant's threat of litigation and it was perverse not to have made that finding. The sudden volte-face had been made after the threat; accordingly (a) the case that the requirements were appropriate was undermined: if they could be waived they were not essential (b) if Ms Crawford's explanation as to the reasons she waived the requirement was rejected it would undermine her credibility as a witness and thus support the Claimant's credibility in cases where his evidence was rejected in circumstances where it conflicted with hers.
- The Employment Tribunal was perverse in deciding that the decision to remove him from the supply register in the summer of 2005 took place in the manner that the First Respondent alleged.
- It is asserted that the Employment Tribunal should not have come to this finding because the First Respondent's evidence was in conflict with that of the Second Respondent and the Claimant. There was no basis for the finding that the Claimant conceptualised that he was in the pool. The decision of the Employment Tribunal was perverse and although it did not go directly to any issue in the case it went to the Employment Tribunal's view of the Claimant's credibility which was relevant in other aspects of the case. Reference was made through a computer screen (B386) from 16 April 2007 which, it was submitted, showed that the absence of references did not preclude entry into the pool. The screen was never changed even after the Claimant's removal and re-admission to the pool.
- It was unreasonable to reject the Claimant's evidence as to what he said he was told about being in the supply pool. The Employment Tribunal misunderstood the evidence relating to the computer system. The Second Respondent supported the contention that the Claimant was in the pool because they were told to remove him whereas the First Respondent denied giving such an instruction. Reference was made to the question at B242 (f) and (g) in the First Respondent's questionnaire and at B8 and B15. It was submitted that this shows the Claimant was correct, the First Respondent was wrong so the Employment Tribunal's views on the Claimant's credibility could not be accepted.
- The Employment Tribunal was wrong to find that the Claimant was not victimised by being refused advice and assistance after he had commenced proceedings in the Employment Tribunal.
- The First Respondent could have responded to the request for assistance. The Employment Tribunal was wrong to say that the Claimant was in effect seeking the disclosure of the First Respondent's case; this was not an attempt to seek advance disclosure. The decision in Khan it was submitted was limited to the question of references. The Employment Tribunal did not ask themselves the subjective question that was posed in Khan, namely why did the First Respondent act as it did. In Khan the legal adviser who gave the advice was called to give evidence although the maker of the letter was not. In the present case only Ms Crawford gave evidence. The letter appears to be signed by Cynthia Welbourn, Director of Children's Services, so it is impossible to know what the First Respondent's reasons were. Someone who had not started proceedings would have had the letter answered in substance. Accordingly, the Claimant, it was submitted, had been subjected to less favourable treatment by reason of his protected act.
- It was perverse for the Employment Tribunal to reject the Claimant's evidence while accepting that of the First Respondent's witnesses.
- Ms Crawford only commenced employment with the First Respondent in September 2004 when the new academic year started and the new applications had to be made. Accordingly she could not explain the reasons for not passing on pipeline applications. There was a conflict of evidence between the First Respondent and the Second Respondent's witnesses as to whether the First Respondent instructed the Second Respondent only to accept recent references. There were a number of evasive answers to questionnaires under the Race Relations Act. Reference was made in relation to the First Respondent to the question at B7 (h.ii.) and the First Respondent's answer at B15. The question at B10 (6u) and B17 answer did not explain how the complaints procedure was dealt with in the Claimant's case although it was subsequently dealt with at B208. The question at B10 and (a) at B17 (6.w.iii) (Application of Discrimination Policy to Claimant) and also at B208 and B152 in relation to the policy document referred to at B208. Reference was also made to the questions at [B6H, B6U, and B6W]. These matters were not referred to by the Employment Tribunal although the Claimant referred to them in his skeleton argument.
- The Employment Tribunal failed to take into account the derogatory remarks made about her to the Second Respondent by the First Respondent and perversely accepted that Ms Crawford did not make the remark attributed to her. This, of course, concerns the remark relating to the Claimant's personal hygiene said to have been made by Ms Crawford. The Employment Tribunal, it was said, was wrong to have failed to appreciate that the remark was discriminatory. It was wrong to say there was no racial element as absence of hygiene is often a means of expressing prejudice against black people. The Employment Tribunal should have questioned the credibility of Ms Crawford.
- Other grounds were touched on more briefly but we nonetheless set out the Claimant's case.
- The Employment Tribunal wrongly failed to take into account the whole course of events. This ground would succeed if other grounds were made out. The Employment Tribunal should, it was submitted, have considered the whole course of events.
- The Employment Tribunal failed to draw inferences from the Race Relation Act questionnaires. This submission, it was said, would depend on other grounds succeeding.
- The Employment Tribunal was wrong to find that it was for schools rather than the First Respondent to comply with the statutory duty to ethnically monitor applicants for teaching posts (we have already referred to the second part of ground five as to whether the failing was administrative or discriminatory).
- It is said that the Employment Tribunal wrongly rewarded the First Respondent for breaching the law in relation to its duty to monitor and act on the results of such ethnic monitoring. The Claimant accepted that it was not known what the statistics would have shown; this was a matter of perception by the Claimant. As there were so few teachers, it was likely that the requirement for experience would have had a disproportionate effect on black teachers.
- The Employment Tribunal raised an irrelevant issue of his not supplying a reference for work that he did in Wakefield when a similar and more recent reference had been supplied and rejected.
- It was submitted that it was wrong to use a reference as a selection tool. This was contrary to the CRE code. The reference from Select was sufficient. The reference was at page A18 and was guarded. I enquired what the terms of the inquiry were but Counsel did not know.
- The Employment Tribunal was wrong to determine that three years of the delay was the Claimant's fault.
- The Employment Tribunal was wrong to conclude that there were no facts from which it could infer discrimination; there was a reference from Select and also from Manchester Metropolitan University. There was no record of any one else's reference being rejected. This should be taken together with the under representation of black African teachers and inadequate answers to questionnaires and the dereliction of duty in relation to monitoring statistics. If all these matters were bundled together the Employment Tribunal could have inferred discriminatory conduct. Much depended on whether the First Respondent was entitled to insist on references. There was sufficient material for the Employment Tribunal to find facts from which discriminatory conduct could be inferred. There was no record of anyone else's references being refused.
- The Employment Tribunal was wrong to rule that the requirement that pipeline applications be started again applied to other candidates. There was no evidence as to why pipeline applications should be handed over by the First Respondent to the Second Respondent and there was limited evidence as to the requirement that applicants be required to start again.
- The Employment Tribunal ruled out a number of relevant documents. The Employment Tribunal may have been correct but it should have accepted those documents to enable the questioning of the implementation of the First Respondent's policies relevant to the case.
- Complaint is made about a number of factual errors. For example, there was no evidence that there were 350 teachers on the Register and the evidence suggested that the percentage accepting work was higher than found by the Employment Tribunal. The Employment Tribunal's figures came from a pie chart. The document at B245 showed that 80 per cent of those in the pool were successful in terms of filling bookings. It was suggested the pool was much more successful than the Employment Tribunal had found at paragraphs 62 and 64. This was a fundamental matter and it was submitted that if the Employment Tribunal were wrong in this regard then they were wrong on other matters and also the use of the pool to supply experience.
- As might be expected both Respondents admitted that it was important to have regard to the high burden of proof in perversity cases and drew attention to findings of fact made by the Employment Tribunal that defeated, it was said, the submissions that the Employment Tribunal should have found the burden of proof had been reversed so that discriminatory conduct might be inferred.
- Generally, in relation to each ground of appeal it was submitted there was factual evidence to justify the Employment Tribunal's conclusions. In relation to victimisation the Employment Tribunal had directed itself properly as to the law and had correctly applied the law to the facts.
- The Employment Tribunal pointed out that as a result of the Employment Tribunal's finding at paragraph 43 that only claims arising after September 2005 might be considered, the Employment Tribunal only had to consider the following: (a) direct discrimination against the First Respondent by not allowing the Claimant on to the pool (b) secondary indirect discrimination in relation to the provision criterion or practise requiring recent references and recent experience (c) issues of victimisation as a result of the failure to respond substantively to the letter of 21 March 2007.
- Both Respondents accepted that evidence relating to matters prior to September 2005 were relevant, and these were considered by the Employment Tribunal in relation to the question as to whether they threw any light on subsequent events and the Claimant's claims.
- The Employment Tribunal considered an enormous amount of forensic detail (some four ring binders of documents) and it had a first-hand opportunity to hear Ms Crawford and the Claimant. It formed clear and cogent conclusions having applied the law correctly. The judgment was Meek compliant throughout. It was, said Mr Legard, thoughtful balanced and thorough.
- The key finding was that the Claimant was to a large extent the author of his own misfortune.
- It was not sufficient for the Claimant to assert that the Employment Tribunal did not consider a particular point. It had to show that it was required to consider the point as a matter of law. Similarly, the Claimant had to show if a factual matter was not determined, that was relevant to the issue of discrimination.
- The Respondents made submissions on the specific grounds of appeal and concentrated on those relied upon by the Claimant. In relation to the other matters it was submitted that these were issues of fact and the Employment Tribunal was entitled to conclude as it did.
- The Employment Tribunal was entitled to find that the failings were administrative and it gave reason for its findings. The burden of proving disparate impact rested on the Claimant. The complaints under Sections 18 and 19 of the Act were outside the jurisdiction of the Employment Tribunal; reference was made to Section 54(1)(a), of the Act.
- The Second Respondent submitted that the duties were owed by the First Respondent and the schools but the Employment Tribunal was entitled to find that the primary responsibility lay with the schools for collecting the necessary information. It was also difficult to see how criticisms of monitoring impacted on any treatment of the Claimant. The Employment Tribunal was entitled to find that this had been an administrative failing.
- The First Respondent submitted the Employment Tribunal addressed the issue of recent relevant experience in depth at paragraph 67. The Claimant failed to adduce evidence to show a disparate impact and the Employment Tribunal was entitled to find that no ethnic group was disadvantaged. However, if the Employment Tribunal was wrong about this it went on to find that the requirement was justified.
- The Claimant had failed to consider how a PCP that a teacher has relevant teaching experience impacted on all qualified teachers in North Yorkshire and the burden was on him to provide some evidence to enable the Employment Tribunal to carry out an analysis. The Employment Tribunal examined the evidence before it and concluded that the PCP had no indirectly discriminatory effect.
- The Employment Tribunal had found that even if the Claimant had established a prima facie case of indirect discrimination the PCP was objectively justified as a proper means of achieving a legitimate aim. The evidence demonstrated that the requirements for references, CRB clearance and GTC accreditation were the norm for all Local Education Authorities.
- The key question was whether the requirement best served the interests of the children, and schools should be able to be confident in the knowledge that a teacher allocated from the pool will have up to date relevant knowledge and a proven track record.
- The Second Respondent's submissions were as follows. Its PCP for two satisfactory references over the last five years was different to that of the First Respondent's. There was no evidence of any adverse affect on BME teachers. It was in any event objectively justified as a proper means of achieving a legitimate aim.
- Both Respondents submitted that the Employment Tribunal had made appropriate findings and it was impossible to say that those findings were irrational. The fact that a requirement was waived showed the extent to which the First Respondent was prepared to assist the Claimant.
- The Employment Tribunal's findings were justified by Ms Crawford's statement at paragraph 30 (page 253). The Employment Tribunal was perfectly entitled to come to the conclusion that it did. Even if the finding of the Employment Tribunal was wrong it did not impact upon the judgment as a whole.
- The Second Respondent submitted that the Claimant was never admitted to the pool because he had never provided two satisfactory references. The Employment Tribunal was entitled to conclude as it had at 14:31 that someone at the Second Respondent in error had treated the Claimant as though he were "live" on the system in relation to requests for assistance from a school in Scarborough. The Claimant did not comply even with the more relaxed requirements of the Second Respondent.
- The Employment Tribunal was entitled to conclude as it did that he was never admitted to the pool but that his appearance on the computerised database was an error.
- The First Respondent submitted that the Employment Tribunal preferred Ms Crawford's evidence. The First Respondent did everything in its power to assist the Claimant in improving his chances of securing work. It had no work to offer itself. It arranged meetings with senior human resources and schools adviser officers in October 2004; it gave the Claimant written feedback, guidance on preparation of CVs and application form drafting and arranged voluntary classroom placements. It sent the Claimant vacancy bulletins and advised him to take a returners course.
- The First Respondent was entitled to take the step it did because as in Khan there had been increasingly acrimonious correspondence. The Employment Tribunal was entitled to reject the suggestion that there was victimisation on the part of the First Respondent. The First Respondent submitted that the victimisation claim was an attempt to fan flames and was in effect vexatious.
- We were shown an agreed note of the evidence; there was little cross-examination about the discrepancies in question. The Employment Tribunal heard the evidence and made findings. Counsel had no recollection of other matters in relation to the questionnaires being explored in cross-examination.
- The agreed note is in the following terms
"Dorothy Rimmer of E-Teach gave evidence and was cross-examined. The Respondent's notes of evidence recalled that Mrs Rimmer said that she had spoken to NYCC who had asked her to double-check everyone's file as an accreditation audit and that audits of this type were normally done at the end of the academic year. The Claimant's recollection of Mrs Rimmer's evidence, in the absence of any notes of evidence, was that she believed they "would" or "might" have had a request to check the supply pool in relation to references and other details."
The note continues in relation to whether evidence was given that the First Respondent gave an instruction to E-Teach in the summer of 2005 to remove the Claimant from the supply pool:
"Evidence relating to the Claimant's removal from the supply pool was given by Susan Crawford of NYCC and she was cross-examined at length on the issue. The gist of her evidence, as recorded by both Respondents, is that NYCC had a conversation with E-Teach regarding policy and procedures, specifically in relation to the requirement for references, as a result of which the Claimant was removed from the supply pool in the summer of 2005. Ms Crawford gave further evidence on the point 'I do not know if anyone was taken off the register at the same time, I have no knowledge either way'."Ground Twelve
- In so far as it was asserted that the finding in relation to delays caused by the Claimant was perverse, this was not a point argued by Mr Tucker but the Respondents pointed to the findings by the Employment Tribunal that the Claimant was responsible for the majority of the delays.
- It was submitted that the complaint was in any event out of time.
- We start by reminding ourselves as to the law. Perversity appeals are difficult and we refer to the well-known passage from the Judgment of Mummery LJ in Yeboah v Crofton  IRLR 634 at paragraph 34:
'Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care"."
- We also have in mind the well-known passage of May LJ in Neale v Worcester & Hereford County Council:
"An industrial tribunal has been described as an "industrial jury," and so in many ways it is. It knows its area; it comprises a lawyer, a representative of employees and a representative of employers within that district; each has substantial experience of industrial problems and they are hearing this type of case regularly. Their job is to find the facts, to apply the relevant law and to reach the conclusion to which their findings and their experience lead them. It will not, in my opinion, be often that when an industrial tribunal has done just that, and with the care, clarity and thoroughness which the industrial tribunal in the present case displayed, that one can legitimately say that their conclusion "offends reason," or that their conclusion was one to which no reasonable industrial tribunal could have come. Deciding these cases is the job of industrial tribunals and when they have not erred in law neither the appeal tribunal nor this court should disturb their decision unless one can say in effect: "My goodness, that was certainly wrong."
- It is helpful also to have regard to other passages in the Judgment of Mummery LJ in Yeboah v Crofton. In particular we refer to paragraph 12 when he said:
"12 When the principal ground of appeal is, as here, perversity of the decision of the fact#finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the employment tribunal. Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an employment tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the employment tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the employment tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the employment tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."
- We also refer to paragraphs 94 and 95 when he said:
"94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.
95. Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions."
- We were also guided by the Judgment of Elias J, as he then was, in ASLEF v Brady  IRLR 576 at paragraph 55 when he summarised the law on the approach of the Employment Appeal Tribunal to judgments of employment tribunals and in particular the factual findings:
"The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law."
- We also have regard to the well-known decision in Meek v City of Birmingham  IRLR 250 on the importance of an Employment Tribunal providing adequate reasons sufficient for the parties to know why they have won or lost as the case may be.
- We also for the sake of completion refer to the more recent decision of Underhill J and D'Silva v NAFTHE  EAT/0384/07/LA when he said:
"37. …In order to raise a (potentially) arguable ground of appeal the Appellant needed to submit not simply that that question was raised but, positively, that the Tribunal ought as a matter of law to have concluded that the answer to it was one which raised an inference that the Union had discriminated against the Appellant."
and continued at paragraph 38:
"…we have observed a tendency in discrimination cases for Respondents' failures in answering a questionnaire, or otherwise in providing information or documents, to be relied on by Claimants, and even sometimes by Tribunals, as automatically raising a presumption of discrimination. That is not the correct approach. Although failures of this kind are specified at item (7) of the "Barton guidelines" as endorsed in Igen Ltd. v. Wong  ICR 931 (see at p. 957 B) as matters from which an inference can be drawn, that is only "in appropriate cases"; and the drawing of inferences from such failures – as indeed from anything else – is not a tick-box exercise. It is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference. There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the Respondents did the act complained of, which in cases of direct discrimination is what the Tribunal has to decide. In such cases time and money should not be spent pursuing the point."
- We feel bound to say, looking at the appeal as a whole, that it is an attempt to re-argue questions of facts. The finding of facts, the weighing up of evidence and deciding which evidence to accept and views as to the credibility of witnesses are all the province of the Employment Tribunal. In this case there was ample evidence to justify all the Employment Tribunal's findings. It is irrelevant whether or not we would have come to a different conclusion because the decision is for the Employment Tribunal not for the Employment Appeal Tribunal. Save in relation to victimisation, there is no criticism of the Employment Tribunal's self-direction as to the law. The drawing of inferences is always case sensitive and in this case where the Employment Tribunal has drawn or declined to draw inferences, it was amply justified by the evidence before it and the facts that it found. The grounds of appeal in this case nowhere approached the high standard required for perversity appeals and the reasons given are more than adequate to make the decision Meek compliant.
- The Employment Tribunal was perfectly entitled to conclude that the statistics and evidence as to under-representation of BME teachers in North Yorkshire was not sufficient as to require it to draw any inference; the dictum of Sedley LJ in Rihal makes clear that the effect of statistics will always be fact sensitive.
- We now turn to deal with the specific grounds of appeal.
- We accept that there has been a lamentable failure on the part of the First Respondent and individual schools to ensure compliance with the monitoring requirements placed upon them by the Race Relations Act 1976 (Statutory Duties) Order 2001 paragraph A4 and the Code of Practice, paragraph 6:45 – 6:46 of the CRE Code of Practice to promote racial equality, and also Section 71:1 of the Race Relations Act. We are pleased to note that as a result of these proceedings the issue has been addressed. It is also perhaps surprising that no equality impact assessment was carried out by the First Respondent having regard to the under employment of BME teachers.
- We must bear in mind that this is not an act of discrimination against the Claimant in itself. The criticisms of monitoring could not have had any direct impact on the treatment of the Claimant or on the number of BME teachers given that the First Respondent did not itself recruit teachers. It is said, however, to show that other matters the subject of complaint might be seen to be discriminatory in the light of the inference that a persistent failure to carry out a statutory obligation was discriminatory rather than administrative. It is nevertheless not easy to see how the failure to ensure that monitoring obligations were complied with impacted on the Claimant.
- The burden is on the Claimant to show facts from which an inference of discrimination might be drawn and the Employment Tribunal found that he had failed to do so. It is, however, for the Employment Tribunal to decide if it is appropriate to draw inferences and the Employment Tribunal having considered and heard the evidence (including evidence of other matters the Claimant said should be aggregated with the failure to comply with its monitoring obligations) concluded that there was not evidence of a climate or culture of discrimination but there were administrative failings. The findings of the Employment Tribunal at paragraph 66 were well within the spectrum of appropriate findings the Employment Tribunal was entitled to make. The Employment Tribunal was entitled to conclude that although the First Respondent had obligations in relation to monitoring the primary responsibility rested with the schools.
- It is necessary to bear in mind that at least initially the Claimant was the author of his own misfortune for failing to nominate references that were readily available to him. We note the different requirements of the First and Second Respondents. We also note that the PCP as put to the Employment Tribunal related to the request for references rather than recent teaching experience. The Second Respondent pointed to the Claimant's skeleton argument before the Employment Tribunal (see page A193) where his complaint relates to the requirement that he provide a detailed teaching reference from employment as a prerequisite to being placed in the supply pool.
- We accept that there is nothing to support the case but the First Respondent was obliged to provide training.
- The statistics simply do not show that a detriment was caused to BME teachers as a result of the requirement to provide references. There was no other evidence to support the alleged detriment: for example, there was no other evidence as to the proportions of BME teachers leaving training and finding posts compared to the white majority. There was no evidence as to the percentage of black (as opposed to other minority) children in North Yorkshire schools. There was no evidence as to the proportion of black applicants for jobs as a percentage of the overall number of applications. The Employment Tribunal was accordingly entitled to find that the statistical evidence was of little value.
- On the evidence before it, the Employment Tribunal was entitled to conclude there was no evidence of any discriminatory effect. Further, even if the requirement for references might be seen as indirectly discriminatory the Employment Tribunal was entitled to conclude as it did at paragraph 7 that the PCP was justified and met a legitimate aim. We accept that unlike in the position of a permanent post, a supply teacher is called at short notice so there is no reasonable opportunity to obtain references, CRB checks and GTC accreditation. It is necessary that they should already be in place if a teacher is to be taken on from the supply pool at very short notice as is frequently the case. The evidence suggests that this was normal for other Local Education Authorities. We accept also that schools have a proper need to know the teacher's experience, so that as the First Respondent put it, a teacher taken from the supply pool could hit the ground running.
- As we have said, the Employment Tribunal was entitled to conclude there was no evidence of any adverse affect on BME teachers.
- This really is an inappropriate ground for an appeal to the Employment Appeal Tribunal; it certainly does not raise any point of law.
- As we have said questions of fact are for the Employment Tribunal. The Employment Tribunal had the benefit of hearing and seeing Ms Crawford. It is for them, not for us, to decide if she was a credible witness, and it was for the Employment Tribunal to decide whether or not to accept her evidence as to why she waived the requirement. Even had she waived the requirement because of the threat of litigation, we do not see that this finding would have made any difference to the case at all. To argue that a peripheral point such as this would have so damaged her credibility is an argument more properly addressed to the Employment Tribunal, which in our view was perfectly entitled to conclude as it did both in relation to her credibility and as to the need for the references.
- As we have said there was no reason why the Employment Tribunal could not have accepted her evidence. As we have already said they saw her and heard her give her evidence and be cross-examined. She gave evidence as to why she waived the requirement and it is quite impossible to say that it was irrational for her to have acted as she did or that it was irrational or perverse for the Employment Tribunal to have accepted her evidence.
- The Claimant clearly should never have got onto the pool. He could only have done so if there was an error because he plainly did not meet the requirements. The document at B386 shows in terms that he did not have the necessary references so if he had been included in the pool it would have been a manifest error. The absence of any reference to his having references cleared shows clearly that he did not meet the criteria and thus should not have been in the pool.
- The findings of the Employment Tribunal were supported by the evidence from Ms Grey and Mrs Rimmer of the Second Respondent and the Second Respondent's response to the questionnaire.
- We have already referred to the evidence placed before the Employment Tribunal (which the Employment Tribunal appear to have accepted) in the document marked "Clarification of Evidence" which we cited when setting out the Respondent's submissions.
- Whether or not the First Respondent did or did not give instructions to remove teachers without appropriate references the fact remains that the Claimant should never have been on the Register. When it was discovered that his name appeared on the Register he was removed (if he was in fact ever "on the Register") which we do not accept. We cannot see how this assists the Claimant in any way. The Employment Tribunal was entitled to conclude as it did and it is clear that the Claimant considered he had been accepted to the pool because he had complied with all necessary criteria when he manifestly did not because he lacked the necessary references. We note that even with the more relaxed requirements of the Second Respondent the Claimant still failed to provide appropriate references.
- We must observe that the Claimant's conduct seems contrived. On 15 July 2006 he had written to the Director to challenge the statement that the First Respondent was not in a position to offer him a teaching post and he raised equal opportunities matters. He also asserted that the First Respondent was under a duty to ensure that he could serve his induction year in North Yorkshire. He commenced proceedings before the Employment Tribunal on 20 July 2006 and in the circumstances the First Respondent decided not to respond to the letter of 15 July in a substantive way. On 21 July 2006 he issued a Race Relations Act questionnaire. He subsequently claimed he had been victimised by the failure to offer a substantive response to the letter of 15 July but this claim was struck out as being out of time. Accordingly, in order to resurrect this claim he effectively re-wrote the letter of 15 July 2006 on 15 March 2007. This letter drew a non-substantial response which was followed by a further application to the Employment Tribunal on 30 March 2007 making a further allegation of victimisation. There was in the event a substantive response on 18 July 2008. We have serious doubts as to whether or not the Claimant did suffer any detriment as a result of a failure to write a substantive response to his letter.
- In Chief Constable of West Yorkshire Police v Khan  IRLR 830, the House of Lords explained the difference between discrimination under Section 1 of the Act and victimisation under Section 2. Lord Nicholls said at paragraph 29
"29. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
He continued at paragraph 31
"31. Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ('by reason that the person victimised has - (a) brought proceedings against the discriminator … under this Act') cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings."
Lord MacKay in his speech at paragraph 59 said:
"59. This decision, with which I respectfully agree, shows that once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation
Finally, we would refer to the speech of Lord Scott at paragraph 79:
"79. The evidence establishes that the reason for the refusal of the reference was not that Sergeant Khan had brought the proceedings but that the proceedings were still on foot and might be prejudiced by the content of the reference if it were given."
- The First Respondent found itself in what it perceived to be a difficult position. If it refused assistance it would be accused of further victimisation or discrimination. If it did provide assistance, the Claimant would argue this showed its previous conduct was discriminatory. The First Respondent would point to the use made of Ms Crawford's decision to waive the reference requirement. In our opinion, having regard to the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan the Employment Tribunal was correct in holding that the First Respondent was fully entitled to protect its position until the conclusion of proceedings. The reason for the First Respondent's conduct was not that proceedings had been commenced but that the proceedings remained on foot and the First Respondent reasonably considered it might be prejudiced by giving a substantive reply and offering further assistance.
- Some of this ground has already been covered in relation to grounds eleven and fourteen. Credibility is pre-eminently a matter for the Employment Tribunal. We are not satisfied at the end of the day in any event, that there was a great deal between the evidence of the First and Second Respondents.
- The weight to be given or inferences to be drawn from what are described as evasive or unsatisfactory answers on the questionnaires was again a matter for the Employment Tribunal.
- We do not consider in the circumstances there is anything in this point at all.
- Again, credibility is a matter for the Employment Tribunal. The Employment Tribunal saw and heard Ms Crawford and was entitled to accept her evidence. The Employment Tribunal concluded at paragraph 62 that the First Respondent did not in any way direct the Second Respondent not to offer work to the Claimant or place any inhibition in his way. This is consistent with the Second Respondent's evidence from Ms Grey as to how the pool operated. It was apparently computer based and semi-automated
- We now turn to deal with other grounds that were touched on much more briefly by Mr Tucker.
- This is a generalised allegation; it fails on the facts.
173.. We have already found that the Employment Tribunal was entitled to draw inferences and decide when not to draw inferences on the basis of the materials before it. This is an attempt to re-argue questions of fact. We accept the First Respondent's submissions in this regard. The facts of this case are very far removed from those of Rihal, and as was made clear in that case, the question of drawing inferences will always be fact sensitive.Ground Five
- This again was a question of fact for the Employment Tribunal to determine.
- Again, the Employment Tribunal was entitled to conclude as it did the evidence did not show a disproportionate effect on BME teachers. There was no question of rewarding the First Respondent for failure to carry out its obligations to monitor. It was a question of the Claimant having the burden of showing a disparate effect and the evidence found by the Employment Tribunal did not support his case.
- The issue was not irrelevant, the Employment Tribunal was entitled to draw the conclusions it did in paragraphs 68 and 69 in relation to his credibility and as to why he was unable to secure work.
- The Employment Tribunal correctly directed itself and its refusal to draw inferences was well within the range of appropriate findings it was entitled to make. This is another attempt to re-argue questions of fact. The Employment Tribunal was entitled on the evidence before it to find that the Claimant was responsible for the majority of delays.
- Again the Employment Tribunal made factual findings on the evidence before it. There is no basis in law for challenging those findings. All applicants were treated in the same way.
- Again the evidence is a matter for the Employment Tribunal and it clearly had a discretion to refuse to accept further documents at a late stage in the proceeding. We can see no basis for challenging its exercise of discretion.
- Mr Tucker submitted in this regard that although there were "perverse factual errors" it took the matter no further. We are not satisfied that errors were made out in relation to the number of teachers; in this regard we refer to the documents at B245 and the letter of 22 November at B396 and the pie chart at B398. These support the findings made by the Employment Tribunal that some 350 teachers (over 90 per cent of those in the pool) received no work from the pool.
- In all the circumstances the Claimant has failed to persuade us in relation to any of the grounds of appeal and this appeal must stand dismissed.
Published: 08/01/2010 16:59