Abiola v North Yorkshire County Council & Ors

An Employment Appeal Tribunal will interfere with an employment tribunal’s factual decision on perversity grounds only where an overwhelming case shows that no reasonable tribunal, properly applying the evidence and law, could have reached it. The appeal tribunal must not retry the evidence or substitute its own assessment of credibility.

Statistical under-representation and administrative failures may justify an inference of discrimination only where, in the circumstances, they support that inference. A requirement for appropriate references for supply teachers may be justified by safeguarding and the need for suitably experienced teachers to be available at short notice.

Victimisation requires identification of the reason for the impugned treatment. An employer may reasonably protect its position in pending discrimination proceedings where the treatment results from the proceedings remaining on foot and possible prejudice to the employer, rather than from the protected act itself.

The claimant, a qualified primary-school teacher, brought claims under the Race Relations Act 1976 against North Yorkshire County Council, the organisation managing its supply-teacher arrangements, and various schools. The Employment Tribunal dismissed claims of direct and indirect race discrimination, victimisation, aiding discrimination and failures concerning training and recruitment.

The claimant appealed to the Employment Appeal Tribunal on numerous grounds, principally alleging perversity, discriminatory use of recent experience and references, failures in ethnic monitoring, and victimisation arising from the Council’s refusal to give a substantive response to correspondence after proceedings had begun. The appeal proceeded against the Council and the second respondent only. The central issue was whether any alleged errors disclosed an error of law or merely invited reconsideration of factual findings.

1. Appeal dismissed. The grounds did not approach the high threshold required for a perversity appeal. The Employment Tribunal had given adequate, Meek-compliant reasons, made findings supported by the evidence, and was entitled to decide questions of credibility, weight and inference.
2. The approach in Yeboah v Crofton [2002] IRLR 634, Neale v Worcester & Hereford County Council, ASLEF v Brady [2006] IRLR 576 and Meek v City of Birmingham [1987] IRLR 250 required the EAT to respect the tribunal’s factual findings and avoid turning an appeal on law into a rehearing.
3. The tribunal was entitled to treat the Council’s failures in ethnic monitoring as administrative failings rather than discrimination. The monitoring failures were not themselves discriminatory treatment of the claimant, and the evidence did not require an inference of a discriminatory culture. The statistical evidence did not establish disparate impact on black or minority ethnic teachers.
4. The requirement for appropriate references, together with relevant experience, criminal-record clearance and teaching-council accreditation, was a proper requirement for a supply-teacher pool. Teachers might be needed at short notice, and schools had a legitimate need to know their experience. Even if the requirement had an indirectly discriminatory effect, it was justified as a proportionate means of achieving a legitimate aim.
5. Applying Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, the Council was entitled to withhold a substantive response and further assistance while proceedings remained on foot, where it reasonably considered that responding might prejudice its position. The relevant reason was the pending litigation and the need to protect its interests, not the claimant’s protected act.
6. The tribunal was also entitled to find that the claimant had not properly entered the supply pool because he lacked the required references, and that any appearance on the database was an error. No error of law arose from its findings about the later removal, reinstatement, alleged hygiene remark, delays, questionnaires or responsibility for offering teaching work.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s judgment dated 10 December 2007 dismissed.
• Employment Tribunal: Claims of direct and indirect race discrimination, victimisation, aiding discrimination and failures concerning training and recruitment dismissed. The judgment was entered in the Register on 10 December 2007.