Appeal No. UKEAT/0248/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 September 2009
	   Judgment handed down on 1 December 2009

Before
HIS HONOUR JUDGE ANSELL
MRS R CHAPMAN
MS B SWITZER

MS L JOHNSON	APPELLANT

THE GOVERNING BODY OF COOPERS LANE PRIMARY SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS L JOHNSON
(The Appellant in Person)	
For the Respondent	MR D O’DEMPSEY
(of Counsel)
Instructed by:
London Borough of Lewisham Legal Services
Lewisham Town Hall
Catford
London
SE6 4RU	

SUMMARY
RACE DISCRIMINATION
Inferring discrimination
The majority of the Tribunal were correct in rejection of submission that the majority of white employers held stereo-typical view that black people are more likely to have mental health issues.

HIS HONOUR JUDGE ANSELL
1.	This is the hearing of an appeal from a judgment of a London South Employment Tribunal presided over by Employment Judge Taylor who, following hearings in March 2008, dismissed claims for racial discrimination in reasons sent out on 27 June 2008.  The full allegations of unlawful direct racial discrimination made by the Appellant, who was a teacher in the Respondent’s Hearing Impaired Unit, were set out in paragraph 3 of the judgment.  The complaints were:
(i)	On 7 March 2007 the Respondent (through Maggie Morgan) treated the Claimant less favourably on racial grounds by sending her an abusive racially stereotypical letter informing her that she was “unwell” and needed to seek medical help.  The comparator relied on is a hypothetical white employee.
(ii)	The Respondent treated the Claimant less favourably on racial rounds in that on 9 March 2007 the Respondent’s Head Teacher (Mr Steve Davies) wrote to the Claimant by letter (dated 7 March) expressing the same views as specified in allegation (i) above and questioning the Claimant’s ability to carry out her duties.
(iii)	On 15 March 2007 the Respondent treated the Claimant less favourably on racial grounds in that Ms Morgan rounded on her regarding the Claimant’s request at future meetings.
(iv)	The Respondent treated the Claimant less favourably on racial grounds when on 15 March 2007 she was approached by Dr Davies and the deputy Head Teacher who having summarised its contents handed the Claimant a letter placing her on medical suspension.  The Claimant contends that the racially stereotypical implication of that letter was that she “had mental health issues”.  Further, it is alleged that the Claimant was ordered not to enter school premises without permission and to meet her trade union representative at another location.  The comparator relied on is a hypothetical white employee.

2.	The decision in respect of allegations (i), (ii) and (iv) was by majority.  As regards allegation (iii) it was a unanimous decision.

3.	The Appellant’s first Notice of Appeal was filed on 6 August 2008 and was rejected on the sift by HHJ Burke QC on the grounds that it was simply an attempt to re-litigate the factual issues in the case.

4.	In due course a Rule 3(10) hearing took place on 6 May 2009 before Slade J.  By that time an amended Notice of Appeal had been filed.  Her order records that the Rule 3(10) appeal was allowed to the extent that ground (c)(iv) of the Notice of Appeal, which alleged that the majority decision of the Tribunal that the assumption in the letters of 7 March 2007 that the Appellant had mental problems, and the medical suspension, were not on grounds of race, was perverse, was allowed to proceed to a full hearing.  We have checked with the amended Notice and ground (c)(iv) is headed Perversity and complains about the acceptance by the Tribunal about the evidence given by the Respondent’s witnesses, particularly Mr Davies, Ms Godliman and Ms Morgan.  However, we also have the benefit of a transcript of the judgment of Slade J where at paragraph 20 she said this:
“I am not, in this hearing, determining the outcome of this appeal.  At this stage what has to be considered is whether there is a reasonably arguable ground for appeal.  In my judgment the contention that the majority of the Employment Tribunal erred in concluding that the facts which it found, namely unreasonable treatment by the school of the Claimant, were not such as to pass the burden of proof onto the school to explain why there was a medical suspension of Ms Johnson by reason of conduct which, in an ordinary work context, would be dealt with by disciplinary or other measures, is reasonably arguable.” 

5.	The Appellant was also given leave to lodge a further amended Notice of Appeal within 21 days.  That amended Notice was filed on 31 May and raises many of the grounds that were not allowed to proceed following the Rule 3(10) hearing.  The grounds of appeal of this notice contended: firstly, that the Tribunal had failed to identify that the Respondent “manipulated procedures that were available to them”, and secondly, “failed to consider that as a consequence of the Respondent’s discriminatory actions there was discrimination, even though race may not have been the sole cause of the less favourable treatment” of which the Appellant complained.

6.	We take the view that neither of these grounds were matters that had been allowed to proceed through to a full hearing.

7.	We take the facts of the case from the Tribunal’s decision.  The Respondent is a maintained community school with Head Teacher, Deputy Head and approximately 30 members of teaching and support staff.  The school provides mainstream classroom teachers with basic training to assist children with special needs.  In response to the need of the local authority to employ more teachers for the deaf they funded a number of training places on a specialist hearing impairment programme.  In 2003 the Appellant, who had been a teacher at the school since 1995, successfully was accepted on and completed the course to be trained as a teacher of the deaf.  She was recommended by the school’s Special Needs Co-ordinator, Ms Godliman.

8.	For the duration of the training programme the Appellant was based at the Lewisham Sensory Teachers Team and in particular, for a period of two years between September 2003 and 2005, Ms Maggie Morgan was the Appellant’s practical training mentor.  They got on well and Ms Morgan found the Appellant to be conscientious, cooperative and willing to learn and be guided.  Ms Morgan did not, during this period, find the Appellant as being abrasive or aggressive in her demeanour.

9.	Mr Steve Davies became Head Teacher at the school in September 2003; commencing when the Appellant was away on her training course but was aware of her because she had been a teacher of his own children.  The school has a total of 480 pupils, 80 of whom are taught in the nursery, with four hearing impaired children attached to the nursery, and has a diverse ethnic and racial mix of children.  Three teachers out of 16 or 17, including the Appellant and the Deputy Head Ms Lewis, are black and of the remaining staff 25 per cent are black Caribbean.

10.	The school introduced a hearing impaired unit for the benefit of profoundly deaf pupils in September 2004 with the anticipation that increasing numbers of children with these impairments would join the school during the seven year period beginning September 2004.  The staff comprised one Lead Teacher of the Deaf, two Teachers of the Deaf, two Communication Support Workers and one Teaching Assistant.

11.	On completion of her course the Appellant was asked by Ms Bennett, the manager of the Sensory Teachers Team, whether she would be willing to work for another school in the borough, namely Rushey Green School, for three out of five days of the week because of staff shortages in that school’s communication unit.  The Appellant strongly objected to the request and to Ms Bennett’s surprise, as the Tribunal found it, the Appellant told her that she refused any further discussion without her trade union present.  Therefore, in September 2005, the Appellant returned to the Respondent school working for five days a week and began teaching in the school’s hearing impaired unit.  The then Lead Teacher of the Deaf (JW) assigned her to teach three children who were attached to the unit.  Ms Godliman was then the Inclusion Manager responsible for ensuring that the school’s policy that all children are included was maintained.  There was also a support worker, Ms Chris Shirley.  There were difficulties in the working relationship between the Appellant and JW but they are not of detailed concern in this case.

12.	In due course JW left the school and transferred management duties of the unit to Ms Godliman, in addition to her duties of Inclusion Manager, until a new Lead Teacher of the Deaf could be appointed; assigning the Appellant to the position of the Sensory Team Leader.  The decision was taken by the Headmaster Mr Davies without notifying the Appellant.  The first the Appellant knew of the arrangement was when she saw an item in the parents’ January 2006 newsletter.  The Tribunal noted that she felt aggrieved by the manner in which she found out about the management responsibilities having been transferred to Ms Godliman.  Indeed Mr Davies, before the Tribunal, speculated that the resulting difficulties that gave rise to the current case may have been caused by the expectation that the Appellant had that she would be transferred to the post vacated by JW, although this was never accepted by the Appellant.  That expectation was unreasonable, the Tribunal found, having regard to the fact that she had only recently qualified.  There is, however, no doubt that from early 2006 there was a noticeable change in the Appellant’s attitude and behaviour.

13.	The Tribunal noted that the relationship between Ms Godliman and the Appellant became more difficult.  The Appellant was dissatisfied about a number of issues concerning her pay and conditions, which Ms Godliman was unable to address.  By June 2006 the relationship had deteriorated to the extent the Appellant was refusing to meet Ms Godliman, purporting that she needed a trade union representative of her choice present and also demanded that anything Ms Godliman wished to discuss should be put in writing.

14.	The Appellant complained in relation to her pay and conditions and specifically requested back-dating to September 2005.  She also applied for a new job description and a new contract and in due course all these matters were dealt with.

15.	In June 2006 an OFSTED inspection praised the skill and expertise of the staff in the hearing impaired unit.  The Appellant attributed the comments as being solely applicable to her personal contribution to the good running of the unit however that was not the view of the other senior members of staff.  The Tribunal rejected the suggestion that efforts of white staff were praised whereas her efforts were not acknowledged.

16.	The Tribunal recorded that by the middle of 2006 there was a marked deterioration in the Appellant’s attitude towards other work colleagues and the lack of communication began to have a detrimental impact on her work and as a consequence the teaching of the children in the hearing impaired unit was being adversely affected.  The Respondent’s witnesses variously describe the Appellant as becoming withdrawn, abrasive, aggressive and non-communicative.  One example occurred in October 2006 when the Appellant had chosen to ignore a new member of staff in the unit, Ms Harrison, and behaved discourteously to her.  She also refused a request from Ms Godliman that she allow Ms Harrison to shadow her on her first afternoon, although the Tribunal noted that the Appellant genuinely believed that she had not acted insolently or unreasonably.

17.	Ms Shirley, another teacher, who had been present was so upset by the Appellant’s conduct that she left a handwritten note to the Appellant to find, expressing her deep upset.  The Appellant regarded the letter to be vindictive, abusive and containing a version of events which had been fabricated and forwarded the letter to Ms Godliman and Ms Lewis, alleging that its contents were fabricated.  The Appellant expected to receive some support from Ms Godliman and Ms Lewis against Ms Shirley although she indicated that she would not attend a meeting with them and that any matters had to be put in writing.  Ms Lewis had become concerned about the Appellant and had invited her to discuss her concerns informally with her but the Appellant had refused.  However, in due course a meeting was set up with the Appellant and the Headmaster and Ms Lewis was present as well.  At the outset of the meeting the Appellant announced that she wanted to tape record the proceedings, which was not permitted under the Respondent’s procedures.  The Appellant also believed that Mr Davies had not granted her sufficient time to arrange a representative of her choice and the whole meeting was abandoned after five minutes.

18.	A further meeting did take place on 20 November 2006 between the Appellant and Mr Davies, however Ms Godliman and Ms Shirley were absent from work and could not have attended.  Ms Clarke attended simply to take notes.  In the letter sent after the meeting, Mr Davies expressed the hope that the working relationship between the Appellant and other staff improved.

19.	A further meeting was held on 4 December 2006 with Ms Godliman and Ms Shirley present and there was a frank exchange of views.  The Headmaster concluded that the Appellant’s attitude was responsible for the poor working relationship that had developed.  In a subsequent letter, dated 8 December, he confirmed that there was a serious breakdown in communication in the hearing impaired unit for which he held her responsible.  Mr Davies informed her that a part-time Lead Teacher of the Deaf would be seconded from the Sensory Team and would be responsible for the planning and provision for children in years 3 and 5 who were based in the unit.  The Headmaster indicated that the Appellant would be responsible for the planning and provision of the children who were currently placed in Early Years and would, therefore, be based in the Nursery and Reception.  The Appellant regarded the new arrangements as constituting demotion because the Head had informed her that she would be based in the Nursery and Early Years and not in the hearing impaired unit, although the Tribunal accepted the evidence of the Respondent’s witnesses that this was not demotion.  In fact Ms Morgan, who had worked with the Appellant during her training, was then appointed as part-time Lead Teacher of the Deaf.

20.	Unfortunately the situation at the school concerning the Appellant did not improve.  On 18 December Ms Mina, a nursery teacher, complained that the Appellant had failed to write a report that related to the Individual Education Plan and targets to be set for a child who had a hearing impairment.  The Appellant meanwhile had written further letters to the Recruitment and Personnel Administration Unit of Lewisham in her effort to pursue her complaint of harassment and bullying.  In response to Ms Mina’s complaint, Ms Godliman wrote a memorandum to the Appellant in early January 2007 clarifying what standards were expected of her in her position as the Teacher of the Deaf working in the Early Years team.  On 19 January there was a Standards Setting meeting, following which matters were confirmed in writing to the Appellant.  The three matters noted by the Tribunal were that firstly, the Appellant had to accept that managers in the school reserved the right to meet with her when reasonably requested to do so.  Secondly, that she had to build more effective professional relationships with the newly appointed Lead Teacher of the Deaf and other members of the unit staff, and thirdly,  to build effective professional relationships with the Early Years manager and staff team.  The Headmaster thought that the meeting had been constructive, although the Tribunal found that the Appellant did not.  She believed that it was a covert disciplinary meeting and in fact, appealed against the Standard Setting letter, which she regarded as a formal written warning.  The Appellant repeated her allegation that she had been demoted because she had been removed from the hearing impaired unit.  She continued to maintain that she had not refused to attend any meeting when reasonably requested to do so and also that Ms Shirley had sought to undermine her.

21.	Shortly afterwards there was a second incident involving the nursery teacher, Ms Mina, who reported to Ms Godliman in writing that the Appellant had refused to attend a Target Setting meeting to be held between them and a child’s parents and had not prepared Individual Education Programme for the pupil.  She told Ms Mina that she did not intend to provide one, given the pupil’s young age.  The Appellant did not regard the criticism as valid but Ms Godliman considered that the Appellant had acted wholly unprofessionally and reported her conduct to the Headmaster.  Ms Mina spoke to Ms Morgan about her concerns and accused the Appellant, amongst other things, of “dumping” the youngest of the children, who was four years old, in her class and leaving him there all day.

22.	At a meeting held on 1 March 2007, Ms Morgan addressed the Appellant’s failure to carry out her responsibilities to check and monitor the hearing devices in the unit, her failure to provide individual attention to the pupils that had been assigned to her, her failure to prepare Individual Education Programmes and refusal to attend the Target Setting meeting with parents.  The Appellant admitted that she had not taken the time to address her audiology duties or given the children one-to-one attention that term but gave as her explanation that she had been prevented from carrying out these duties because there had been “unresolved issues”.  She gave no explanation to Ms Morgan as to what these issues were, although it appeared to her that the Appellant was having difficulty managing her time.  There were further concerns in relation to the Appellant’s failure to agree her timetable, and also that having been given authority to order books for the benefit of two children in the unit she had inexplicably ordered 124 books, an excessive number and at a substantial cost.  Ms Mina’s subsequent observations demonstrated that on four consecutive days the Appellant had left children assigned to her in the nursery at the start of the day and failed to return to the nursery until the end of the day.  There were also concerns the Appellant had, without good reason, failed to provide Individual Education Programmes for two children in the Early Years at the outset of term and had failed to rectify this even though the school was midway through the spring term.

23.	A new timetable was eventually agreed for the Appellant in early March.  She was timetabled to provide cover for teachers’ preparation time, which she considered was inappropriate for a teacher of the deaf, although the Tribunal noted that they heard evidence that all teachers covered preparation time for others.  Following the introduction of the new timetable, there remained concerns about the Appellant’s work that were reported back to Ms Morgan.  The Appellant’s view was that the fault lay with other members of the staff and again repeated her belief that she had been demoted and removed from the unit and, in a response to Ms Morgan, indicated that she was unwilling to attend any meetings without a “representative of her choice present”.

24.	Ms Morgan replied to the Appellant’s letter on the same day, 7 March.  This letter constituted the first of the four allegations made in the claim.  Having regard to the Appellant’s concerns, Ms Morgan removed the audiology responsibilities from her, freeing her on Wednesday afternoons to concentrate on other tasks.  She also released her from timetable duties on Wednesday morning so that she was not required to work in the nursery and released from her timetable duties all day Thursdays, substituting Ms Harrison to support the children the Appellant was scheduled to teach.  Ms Morgan was concerned about the change in the Appellant’s behaviour and her attitude towards her as she had always regarded herself as the Appellant’s friend, as well as her manager.  The Tribunal found in paragraph 77 that Ms Morgan genuinely believed that there had to be a medical explanation for such an alteration in her behaviour and conduct and, therefore, concluded her letter:
“I would like to add that because I have known you for a few years, have worked with you, and am well aware of your strengths as a teacher of the deaf I am extremely concerned about you at present as I feel you are not well enough to continue working.  I would be willing to discuss my concerns but you have already said you do not wish to meet me without a representative.  I am therefore urging you to seek medical help, as soon as you feel able, to get the support you need to function well both at work and in your social interactions.”  

25.	The Tribunal’s fact finding continued in paragraphs 72, 73 and 74 as follows:
“72	Ms Morgan and Mr Davies considered that there remained many outstanding issues concerning the Claimant’s apparent failure to carry out duties.  She had admitted failing to carry out her audiology duties, failing to provided one-to-one teaching and failing to carry out essential duties such as devising individual education programmes, all of which had contributed to a belief that the Claimant was not carrying out her duties as a Teacher of the Deaf properly.  They did not understand what lay at the root of the problem, and the Claimant had been unable to supply meaningful and constructive responses to the matters that had been put to her.  In a letter addressed to Ms Clarke on 2 March 2007 Mr Davies set out a reply to some of the matters the Claimant had complained about to the local authority and explained that the school continued to be concerned about the quality of provision she was making for children with impairments.  (184-5).
73	Mr Davies considered it had now become necessary to take formal action in his attempt to resolve these issues and he wrote to the claimant.  By a letter dated 7 March 2007, he explained that he had spoken to Ms Morgan and he set out his various serious concerns about the Claimant’s work.  He stated that the Claimant had not carried out her duties and expressed his disappointment that children with impairments had not received proper provision because of supposed ‘unresolved issues’.  Mr Davies stated that Ms Morgan was yet another manager experiencing problems in her attempt to manage and direct the Claimant in her role as Teacher of the Deaf.  He concluded that:
‘Whilst I cannot be sure that your actions are wilful at this point, I am concerned over your continued irrational behaviour in relation to reasonable requests.  Maggie’s view is that you are unwell and urges that you should seek medical help in order for you to be able to ‘function well both at work and in your social interactions’.  I support this view and on advice taken from Personnel will support you in this by referring you to the LEA’s Occupational Health Service for an assessment.  (190-191)’
74	Mr Davies wrote a letter of referral to the Occupational Health Service on 9 March 2007, explaining that the Claimant had been exhibiting completely irrational behaviour in the carrying out of her duties or meet her immediate line manager without a representative present, which was a new development.  She had presented as tense, edgy and fairly aggressive.  She had written letters in vitriolic terms to her managers and appeared unable to perform her duties.  Her immediate line manager was now concerned about her mental health.  The purpose of the referral was:
‘...in order to gauge Lisa is suffering from mental health or whether she is wilfully deciding not to perform her duties.  Future action in this matter will depend on what is reported from this assessment.  (194-6)’

(The referral was not copied to the Claimant)”

26.	Unfortunately the complaints against the Appellant continued.  Ms Mina addressed a lengthy letter, dated 11 March 2007, to Ms Godliman complaining the support a hearing impaired child had been receiving from the Appellant was wholly inadequate and the atmosphere when she was in the classroom was “frosty”.  She considered the Appellant was behaving unprofessionally and gave various reasons.  A few days later she wrote to the Headmaster, informing him that the Appellant seemed confused about the timetable and appeared pale and drawn.  She said the Appellant had behaved in an offhand manner and she concluded that, having known the Appellant for nine years, she was seriously concerned about her mental health, also she was no longer willing to have the Appellant working in the nursery.

27.	Paragraph 79 of the Tribunal’s decision records the incident leading to the third allegation of discrimination:
“On 15 March 2007 Ms Morgan asked the Claimant to discuss feedback on one of the children concerning the issue of a radio aid.  The Claimant asked Ms Morgan whether this was a ‘formal or informal’ meeting and then proceeded in an angry and aggressive manner to loudly challenge Ms Morgan.  The Claimant behaved in such an aggressive manner that Ms Morgan felt intimidated by her and chose to leave the scene, later reporting the incident to Mr Davies.  It remained necessary to deal with the issues and Ms Morgan was forced then to write to the Claimant:
‘I met with LB Teacher of the Deaf from the Cohlear Implant Team and discussed the issue of a radio aid to ... one of the children in your care.
I then came into your classroom to ask if this was an appropriate time to informally feedback on the matter or if you preferred to see me later.
Not only did you refuse the informal discussion, I consider your behaviour towards me was inappropriate and aggressive. I did tell you I found your behaviour inappropriate and then I left the room in order to avoid any more disruption.
I returned to the room at 12.00 noon to hand you a written version of what I had hoped to discuss, to discover that you were in charge of a group of mainstream children while [a pupil was left unsupported in another room].
I would like to tell you that I feel it is unacceptable for you to refuse to meet with me even in an informal way.
I find writing down information is taking up an unacceptable amount of my time which would be better spent in the day to day running of the Unit and working with stage 2 children.  In addition I have no evidence that you have carried out your duties as a teacher of the deaf since I arrived here in January.’  (208)”

28.	The final incident was set out in paragraphs 80 and 81 of the Tribunal’s decision as follows:
80	“Mr Davies, was very concerned that the Claimant was still not supporting the two children assigned to her properly and [about] her behaviour towards Ms Morgan.  Having regard to the concerns about the Claimant’s apparent irrational behaviour and the failure to carry out her duties that had been witnessed by Ms Morgan and other members of staff, Mr Davies decided to suspend the Claimant from her work on medical grounds.  He met the Claimant briefly on 15 March 2007 and by his letter dated the same day, informed the Claimant that:
‘... Further to our meeting/conversation yesterday, I am writing to confirm my decision that you should be placed on medical suspension with immediate effect.
Your suspension on medical grounds will continue at least until a professional medical opinion can be sought from the council’s occupational health physician.  Whilst this suspension remains in force you should not enter school premises without permission from me.  If you need to arrange to meet with your trade union representative in relation to your medical suspension, you should do so at another location.’
You will be aware that, as a result of my ongoing concern about your general conduct and behaviour in school, my growing concern about deteriorating relationships with colleagues and your general unwillingness to cooperate, I have referred you to the council’s occupational health physician.  As a result of these concerns I have real doubts about your suitability to remain at work.
This is consistent with my duty of care as a teacher and in line with council procedure in cases where an employee’s behaviour, health and fitness for work are matters of concern.
Your medical suspension will be on full pay and will be reviewed only after I have received an outcome report from the council’s occupational health physician, following your scheduled appointment.  If the occupational physician confirms that you are fit to resume work I will review the medical suspension at that time.  Therefore you should make every opportunity to attend the occupational health appointment that has been arranged for you.  It is likely that I will need to meet with you prior to the reaching of any final decisions about whether your medical suspension should remain in force or be lifted ...’  (201-1, 212)

81	The Claimant responded to the suspension by a letter dated 4 April 2007 as follows:
‘I refer to your letter dated 15 March 2007 ... you referred to my alleged ‘conduct and behaviour’ and the deteriorating relationships with colleagues and ‘unwillingness to cooperate ...’ in short you say that you have doubts about my suitability to remain at work.
It will come as no surprise to you that I refute all your allegations.  Your letter clearly implies that I have some kind of mental health or psychiatric problem.  I am appalled and disgusted at such a suggestion.  There is absolutely nothing medically wrong with me and I am fully capable, willing and able to work.
It has not gone unnoticed that the ‘medical suspension’ has been implemented after I lodged a formal grievance against yourself and the senior management team at Coopers Lane Primary School.
Your decision to place me on medical suspension indicates race discrimination.  There is plenty of evidence (including from the government Health Care Commission) which shows that black people are more likely to be unfairly stereotyped as having mental health problems.  I believe you are guilty of such stereotyping.
I note that you have not had the courtesy of responding to my letter to you sent by Recorded Delivery and dated 15 February.  I have received notification from Lewisham’s occupational Health Services informing me of an appointment on 16 April 2007.  I cannot consider attending such an appointment, but at this stage would like to know the precise reasons, with specific detailed examples of my alleged behaviour or conduct which you consider to be signs of ill health.
Finally, please note that I am copying this letter to Occupational Health so that they can cancel the appointment ...’ ”

29.	Turning to the Tribunal’s conclusions, at the heart of their decision was the argument as to whether each of the letters from Ms Morgan and Mr Davies and the actions on 15 March, when the Appellant was placed on medical suspension, was the result of a stereotypical view held by the majority of employers that black people, or people who were Afro-Caribbean, are more likely to have mental health issues than their white comparators and that Ms Morgan herself held such views and that, accordingly, neither Mr Davies or Ms Lewis had any real grounds on which to conclude that the Appellant was unwell or that she needed to seek medical help and that, therefore, they would not have considered a hypothetical white comparator in the same or similar circumstances would have had mental problems.

30.	The Tribunal firstly noted that the Appellant had not presented any statistical evidence that might support that view and indeed one member of the majority had not even heard such views posited before this case.  But even if the majority were prepared to accept that there was a stereotypical view, they found that the Appellant had provided no direct evidence that either Mr Davies or Ms Morgan held that view.  The Tribunal noted there was clear evidence the Appellant had undoubtedly failed to meet her professional responsibilities and that, although there were some problems in relation timetabling and other difficulties, she had not supplied any cogent reasons to her employer that might explain the reason for her failings.

31.	The Tribunal noted that the letters written by Ms Morgan and Mr Davies were against a background of numerous and serious complaints made by teaching and support staff, evidence that the Appellant had not been carrying out her work, the own admissions from the Appellant that she had not completed Individual Education Programmes or given one-to-one teaching time to pupils and the particular concerns expressed by Ms Mina, who alleged that the Appellant’s presence in the classroom was not benefitting the pupils.  The Tribunal were particularly concerned with the evidence of Ms Morgan, who had known the Appellant for a few years and was well aware of her strengths as a teacher of the deaf and was extremely concerned about the Appellant and felt that perhaps she might not be well enough to continue working.

32.	The Tribunal went on to conclude that both Ms Morgan and Mr Davies had behaved unreasonably when sending letters in which they suggested mental health problems when the Appellant had not raised any question of mental health as an explanation for her conduct and considered whether discrimination could be inferred from that unreasonable treatment.  However, they concluded that there was considerable evidence that the letters were genuinely written, for the reasons Ms Morgan and Mr Davies each stated in their letters; and that the letters were written not by way of a stereotypical view, particularly as far as Ms Morgan was concerned because she knew the Appellant well enough to discount any indication that she had wilfully failed to act unprofessionally.  Similarly, Mr Davies believed that a more reasonable explanation for her conduct was possibly ill health.  Further, the Tribunal noted the Appellant had given them good reason to believe that there was no chance of them entering a meaningful discussion.  The majority, therefore, concluded the Appellant was unable to satisfy the Tribunal that she had been treated differently to a hypothetical white employee or less favourably and, therefore, the burden of proof did not pass under section 54(a) of the Race Relations Act.

33.	The minority accepted the Appellant’s submission that the majority of employers held the stereotypical view and, having considered that Ms Morgan and Mr Davies had no grounds on which to conclude that the Appellant was unwell or she needed medical help (indeed, the Appellant had not been absent from work and had not suggested that she was unwell), found that it was a prima facie case of discrimination and, therefore, looked to the Respondent for an explanation and concluded that Ms Morgan and Mr Davies were unable to give evidence which showed that they did not hold such views.  The minority applied a similar approach to the allegations concerning the matters of 15 March, expressing the view that the Appellant’s behaviour did not demonstrate that she had mental problems.  The minority view was that the Appellant had shown herself to be a person under siege and had set out a number of concerns about issues of timetabling and conflicting instructions which had given rise to the Appellant’s actions.

34.	As to the fourth allegation, the Tribunal’s majority considered that although the Respondent may have jumped to an early conclusion that the Appellant had some mental impairment, they were not satisfied that they came to that conclusion on racial grounds.  They noted the Appellant had been given numerous opportunities to provide an explanation for her behaviour which she had failed to utilise and the Respondent had decided that rather than going to disciplinary action, it would take the step to ascertain whether the Appellant was wilfully failing to meet standards set or whether her actions were health related.

35.	Against that detailed background, the Appellant, who appeared before us in person, made a series of powerful and emotional submissions concentrating very much on the facts of the case, which she contended should leave us with no doubt that the majority’s decisions in relation to the March letters and the medical suspension were perverse that, therefore, the view of the minority in the Tribunal should prevail.  Indeed, she argued that the Tribunal’s findings taken as a whole should have led the conclusion that the employers failed to address their own shortcomings, preferring unreasonably to rely on the fact that she might be ill.

36.	She took us firstly to the majority’s conclusion in paragraph 114, that the Respondent had jumped to an early conclusion that she may have had some mental impairment and compared that finding to a similar finding in Aziz v Crown Prosecution Service [2006] EWCA Civ 1136, where the Court of Appeal reinstated a finding of racial discrimination in Mr Aziz’s favour and noted in paragraph 30 that the CPS “had jumped unjustifiably to the conclusion that the allegations were true”.

37.	She made further submissions that the majority had ignored the following issues: (i) clear evidence that there were problems that she had encountered with regard to a confusion over timetabling, (ii) her letter of 15 February 2007 which made reference to Ms Morgan conceding that there were no concerns about her “behaviour or conduct”, (iii) evidence which the minority referred to in paragraph 112 that she had received conflicting instructions, (iv) evidence that any problems with the audiology equipment resulted from the fact that she had not been properly trained, (v) evidence that she had prepared IEPs for both children in early March 2007.

38.	She also contended that the Tribunal failed to place proper reliance on the Respondent’s Managing Capability Guidelines, which clearly indicate that the first stage where there is poor or unsatisfactory performance would be for an informal meeting between the Head Teacher and the member of staff confirmed.  Further, she contended that if the employers were of the view that she was guilty of misconduct then the school’s disciplinary code could be used.  She further submitted that the Respondent’s failure to adopt their normal procedures was again strong evidence of unfavourable treatment which the majority had ignored.  She argued that her complaints had been set out in a number of grievances in early 2007, suggesting that she had been suffering harassment, victimisation and bullying from the Head Teacher and senior management and it was, therefore, a stereotype reaction to categorise her behaviour in terms of possible mental health problems against a background where she had never complained about problems or had any time off.

39.	In response, Mr O’Dempsey for the Respondent argued that the Appellant’s submissions had never been made before the Tribunal and she was simply attempting to re‑litigate the issues; that the Tribunal findings and reasoning of the majority were not perverse and do not come near failing for perversity.  He argued if the Appellant could not establish that the Respondents were engaging in stereotypical thinking in this respect the claim had to fail.

40.	He took us through the majority’s reasoning in their conclusion and submitted first of all that the Tribunal were entitled to reject the Appellant main submission that there was a stereotypical view held by white employers of black or Afro-Caribbean staff that they were disproportionately more likely to be labelled with mental illness.  He argued that the Appellant did not present any statistical evidence to the Tribunal and that even if there were research papers available this was not the sort of material that Tribunals should take judicial notice of as a basis for a discrimination claim.  We would agree with that view.  Whilst of course the Tribunals have to be alert to subconscious discrimination and analyse employers’ actions and statements with care, it does seem to us that a case of discrimination cannot simply be founded on an alleged stereotypical view that white employers may have about black people’s mental health problems or issues.

41.	Mr O’Dempsey went on to submit that the majority of the Tribunal had adopted the correct analytical approach to the evidence.  Firstly analysing whether there was any direct evidence that either Mr Davies or Ms Morgan held the stereotypical opinion attributed to them by the Appellant and in particular whether those views could be inferred from the evidence as a whole.

42.	Further, he submits that insofar as the Appellant had placed great emphasis on the difficulties that may arisen between herself and other members of staff in terms of, for example, of timetabling, Mr O’Dempsey pointed out that the majority had noted those difficulties but yet the Tribunal still found that she had not supplied any cogent reasons to her employer that might explain her failings.  In particular, he referred to paragraph 97 where the Tribunal noted Ms Morgan’s view that this was a lady that she knew well and she was unwilling to accept that the Appellant had wilfully failed to act professionally and, therefore, was looking for other reasons for this behavioural change.  Further, as the Tribunal found, Ms Morgan was acting with the best of intentions towards the Appellant.

43.	Again, we accept Mr O’Dempsey’s submissions.  It seems to us that the majority took care in considering in detail why Mr Davies and, in particular, Ms Morgan had acted as they did.  Clearly, Mr Davies, in sending the occupational health referral, acted on the suggestion, particularly from Ms Morgan, that there were concerns about the Appellant’s mental health and he seemingly wanted to explore that route as an alternative view to deciding that the Appellant had wilfully decided not to perform her duties.  Further, the concerns about the Appellant had also come from Ms Mina in a letter that she had written to Mr Davies.  Further, Mr O’Dempsey argued that the careful approach of the majority could be seen from paragraph 96, where the 

Tribunal found that:
“Notwithstanding their good intentions, Ms Morgan and Mr Davies behaved unreasonably when sending the claimant letters in which they suggested that she had mental health problems.”

44.	Similarly, as regards the medical suspension in paragraph 114, the majority considered that the Respondent jumped to an early conclusion that she may have had some mental impairment.  However, in both situations, the majority went on to consider whether it could be inferred from that treatment that the Appellant had been treated less favourably than the hypothetical employee.

45.	As regards the letters, the Tribunal noted the genuine concern that both Ms Morgan and Mr Davies expressed against a background of any coherent explanation from the Appellant as to her conduct.  The Tribunal also noted significantly that she had given them good reason to believe that there was no chance of them entering into meaningful discussion which, in our view, is an answer to the Appellant’s complaints that a more informal approach was not used under the company’s procedures.  The Tribunal stressed on several occasions (and we agree with this approach) that it was Ms Morgan’s desire to help the Appellant.

46.	Similarly, as regards the medical suspension, the majority again noted that the Respondent had given the Appellant numerous opportunities to provide an explanation.  Other than referring to “unresolved issues”, no detail had been provided.  Again they concluded that the suspension may have been unwelcome and insulting but it did not indicate that the decision was taken on racial grounds or was effectively as the result of any stereotype notions.

47.	As regards the minority view, Mr O’Dempsey submitted that it was based on an acceptance by the minority of the stereotypical view.  As we have indicated already, we do not accept that the minority were entitled to accept that as a basis for their findings on discrimination in terms of a prima facie case and causing the burden of proof to shift under section 54(a).  Further, he submitted that the minority view that there was no ground on which Mr Davies and Ms Lewis could conclude that the Appellant was unwell or she needed to seek medical help flew in the face of the considerable history concerns that the Tribunal found in terms of a deteriorating relationship with all members of staff, lack of cooperation, discourteous behaviour and neglect of her duties towards the children.  Again, we agree with Mr O’Dempsey’s submissions that the minority’s approach was flawed; firstly in relation to its acceptance of the stereotypical position and also with regard to their view that there was no material on which Mr Davies and Ms Lewis could conclude that the Appellant was unwell.

48.	Accordingly, in specific answer to the question posed by Slade J at the Rule 3(10) hearing, we are quite satisfied that the majority of the Tribunal were correct when it found that although there had been unreasonable treatment it did not pass the burden of proof on because of the considerable volume of material that gave explanation for the actions taken by Ms Morgan and Mr Davies.  For these reasons the appeal fails.