Shojaee v Greenhead Grammar School & Ors

An appellate court considering alleged procedural injustice should examine the outcome and ask whether it might have been different because of the challenged procedural step, and, if so, whether the tribunal erred. Where an employment tribunal’s substantive findings rest on evidence given live and capable of cross-examination, an internal investigation report adopted only as corroboration does not ordinarily establish unfairness because other inquiry witnesses were not called. A limitation ruling which treats the final incident in isolation may be open to challenge: an apparently trivial incident within time can acquire its true character from an earlier sequence of alleged discriminatory acts. Permission to appeal was nevertheless refused where the substantive findings were careful, no viable issue of law arose, and there was no realistic prospect of success.

An Iranian-origin physics teacher brought Employment Tribunal claims for direct race discrimination and victimisation against his school. He alleged a long history of disadvantage in teaching allocations, classroom treatment, training, difficult classes and religious leave, together with acts within the three-month period before his claim.

The Tribunal found no discriminatory act within time capable of engaging the earlier history and declined to extend time on the just and equitable basis. It also examined the full history and found satisfactory professional, non-racial explanations. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing on 14 September 2001. In the Court of Appeal, he sought permission to appeal and permission to rely on further evidence, alleging legal error, procedural injustice and failure to call witnesses from an internal governors’ inquiry.

Application refused. Lord Justice Sedley gave the judgment of the court.

1. The Employment Tribunal’s apparent approach to jurisdiction, requiring a stand-alone discriminatory incident within the three-month period or a continuing act running into it, was arguably misleadingly simplified. A sequence of earlier incidents may provide evidence of the seriousness, nature and effect of an apparently trivial final incident occurring within time. That point was debatable and was not necessary to the outcome because the Tribunal had also determined the substantive issues.
2. In assessing an allegation that a tribunal’s handling of a case caused procedural injustice, an appellate court should examine the outcome, ask whether it might have been different because of the challenged step or omission, and, if so, whether the tribunal was wrong in taking or omitting that step.
3. The complaint concerning witnesses from the governors’ investigation did not disclose arguable unfairness. A party may call witnesses to support its case. An opposing witness may be called by the other side and cross-examined, while failure to call a witness with material evidence may attract adverse comment where no good reason is known. Here, the Tribunal based its findings on witnesses who gave evidence before it and could be cross-examined. The governors’ report was, at most, corroboration or a make-weight, not the foundation of the decision.
4. The Tribunal had conducted a twelve-day hearing and made careful findings that the alleged detriments, including those relied upon for victimisation, had satisfactory non-racial explanations. Although the jurisdiction point was arguable, the real issues had been heard and no viable issue of law or realistic prospect of a successful appeal remained. Permission was therefore refused.

• Court of Appeal (Civil Division): on 19 July 2002, refused the application for permission to appeal and permission to rely on further evidence.
• Employment Appeal Tribunal: dismissed the appeal at a preliminary hearing on 14 September 2001.
• Employment Tribunal: rejected the substantive discrimination and victimisation claims, found no qualifying discriminatory act within the relevant period, and declined to extend time on the just and equitable basis.