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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Shojaee v. National Association of Schoolmasters & Ors [2003] UKEAT 0777_02_2309 (23 September 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0777_02_2309.html Cite as: [2003] UKEAT 0777_02_2309, [2003] UKEAT 777_2_2309

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APPEARANCES

 

For the Appellant	MR M R SHOJAEE In Person
For the Governing Body of Greenhead High School, City of Bradford Metropolitan Borough Council and SERCO For Cambridge Education Associates Ltd	MISS A PROOPS (Of Counsel) Instructed by: City of Bradford Metropolitan Council Legal Services City Hall Bradford West Yorkshire BD1 1HY And National Association Schoolmasters & Union of Women Teacher & Others Hills Court Education Centre Rose Hill, Rednal Birmingham B45 8RS NOT PRESENT NOR REPRESENTED


 


JUDGE SEROTA QC

1. This is an appeal by Mr Shojaee who is a gentleman of Iranian origin against certain decisions of the Employment Tribunal in Leeds to which we shall come to shortly. The Chairman of the Tribunal at the relevant hearings was Mr Colin Grazin. The parties to this appeal as Respondents are the NAS/UWT, the governors of Greenhead High School where Mr Shojaee teaches, Bradford Metropolitan District Council, Serco Limited which is a contractor to Bradford Council and also a Dr Neil Shaw.
2. Dr Neil Shaw was originally joined in the proceedings perhaps unintentionally by Mr Shojaee who had in fact sought to make the Occupational Health Department of Bradford Council, and hence Bradford Council liable for alleged discriminatory acts on his part. Mr Shojaee accepted during the course of the proceedings that Dr Shaw need not have been a personal party, indeed it was not Mr Shojaee's intention that he should be. But nonetheless Mr Shojaee was ordered to make a payment of costs in favour of Dr Shaw against which Mr Shojaee has appealed.
3. Dr Shaw has not been served with this appeal. It is unclear to us why this happened but he was certainly unaware of the fact that an appeal against him was to be considered today. He has been involved in relation to other aspects of this case and Mr Shojaee had wished him to give evidence. We are not concerned with that at all. We say now that what we would intend to do so far as Dr Shaw is concerned is to cause a letter to be written to his representative to inform him of this appeal and to ask whether he wishes to appear to contest the appeal. If he does wish to contest the appeal then the matter will be listed and Mr Shojaee will be able to present his arguments and we will consider Dr Shaw's response. If Dr Shaw does not wish to participate in the appeal we may be able to deal with the matter without a further hearing.
4. The next Respondents are Cambridge Educational Associates. Cambridge Educational Associates have not appeared. They have written a letter to the Tribunal saying that they are content for the Tribunal to deal with the matter in their absence.
5. We now need to set out something of the factual background. Mr Shojaee, as we have mentioned is a gentleman of Iranian extraction who has been a teacher, as we understand it in Bradford for some 14 years. He teaches physics and in 1999 he had occasion to bring proceedings against the governors of his school and against Bradford Metropolitan District Council in which he made various allegations over bullying, discrimination on the grounds of race, conspiracy and what have you.
6. The matter came before an Employment Tribunal chaired by Mr Barton in Leeds and the decision of that Tribunal was registered, we believe, on 18 December 2000. The hearing lasted 12 days. A number of Mr Shojaee's complaints were found to be out of time and dismissed for that reason. A number of his complaints were considered on the merits. These included allegations of bullying, discrimination on the grounds of race and conspiracy involving a number of parties at the school and at Bradford Council.
7. These were examined, as we have said, but the allegations were not accepted by the Employment Tribunal and Mr Shojaee's application was dismissed. Mr Shojaee exercised his right to appeal to the Employment Appeal Tribunal and in the course of that appeal he made allegations of bias and prejudice on the part of the Chairman, Mr Barton and of the Employment Tribunal. His Honour Judge Clark and two lay members at a Preliminary Hearing dismissed the appeal and Mr Shojaee was ultimately refused permission to appeal to the Court of Appeal after a hearing in front of Sedley LJ. We will come to this later.
8. It is quite clear that Mr Shojaee's position at the school was, so far as he was concerned, an unhappy one. He told us that he had hoped that after the decision of the Employment Tribunal in December 2000, he and the school would effectively be able to put matters behind them and start life on a new footing. Mr Shojaee says that so far as he was concerned, that is what he did, but he was disappointed with the way in which he was treated at the school and the matters of which he has complained simply repeated themselves. Accordingly, on 22 January 2002 he commenced these proceedings in the Employment Tribunal, firstly against his union NASWT. He accused the union of discrimination and of conspiring with the school at Bradford and others and accused the union of institutional racism.
9. On 29 January he followed up his first application by making an application against the other parties and also made allegations against OFSTED. He claimed that he had suffered discrimination since May 2000, he had been the victim of victimisation because of his previous proceedings and conspiracies. The conspiracies involve the headmaster, OFSTED and the other parties which I have mentioned.
10. We think it necessary when considering the chronology to examine in detail the correspondence between the Tribunal and the parties, and the orders made by the Tribunal in the early part of last year. When NAS/UWT had sent its Notice of Appearance, Mr Simpson, one of the chairmen of the Employment Tribunal at Leeds directed a pre hearing review. Alternatively, he directed the Tribunal would consider striking out the Originating Application on the grounds it had no reasonable prospect of success. The letters to which we refer were all copied to Mr Shojaee. There is a further letter of 7 February in which it is said that Mr Simpson directed there should be a Preliminary Hearing to decide whether Mr Shojaee's applications in respect of discrimination, and unjustifiable discipline were submitted out of time. If the Tribunal considered the applications were out of time they would go on to consider whether it would be just and equitable to extend time together with other matters which would be followed by a Directions Hearing.
11. On 19 February Mr Sneath, another Chairman of Employment Tribunals caused a letter to be sent to Mr Shojaee and other parties giving directions as follows:

""The Tribunal will also consider whether the application is misconceived in the sense that it has no reasonable prospect of success because it is an attempt to overturn the decision in the earlier proceedings and the unsuccessful appeal against that decision.""

12. On 20 February Mr Sneath directed that both of Mr Shojaee's applications should be listed together for a Preliminary Hearing. The issue in relation to the applications against the parties other than NAS/WUT was whether the original application or any part that it was misconceived in the sense it had no reasonable prospect of success.
13. On 27 February Mr Sneath gave further directions and directed that the estoppel point that was raised, I think in particular by the Bradford Respondents as I shall call them should be determined at the Preliminary Hearing. On 11 March Mr Sneath, having received a further Notice of Appearance, we assume from Dr Shaw, directed that the Tribunal would also consider at the Preliminary Hearing whether in the case of any part of the claims, the Applicant should be required to pay a deposit as a condition for proceeding with that part or those parts of his claims.
14. On 13 March solicitors acting for Cambridge Education Associations asked that the Tribunal should consider striking out the claim against it on the basis that it was misconceived and placed the Tribunal on notice that if the application were to be unsuccessful but their client be successful at trial they would seek a costs order on the basis that the proceedings were misconceived.
15. On 25 March a Notice of Hearing was issued by the Employment Tribunal. It is headed:

" NOTICE OF HEARING

PRE-HEARING REVIEW/PRELIMINARY HEARING/DIRECTIONS HEARING"

The order provided that:

"The application will be heard by an Employment Tribunal on 22 April"

One day was set aside for the hearing and there was a schedule setting out the identity of the parties. The Order does not identify which issues are to be determined and which issues are to be dealt with at a Pre-Hearing Review, which at a Preliminary Hearing and which at a Directions Hearing.

16. On 5 April Mr Shojaee wrote to the Tribunal saying that he intended to use three witnesses and the bundle of documents. He also asked that the time set aside for hearing should be increased to two full days. On 10 April NAS/UWT wrote to the Tribunal and asked the Tribunal to identify the issues which were to be examined and decided, prior to the case being set down for a full hearing. In order to determine which witnesses to call at the Preliminary Hearing the Respondents needed to know whether issues in addition to those requested by NAS/UWT would be considered namely whether the application against it was out of time and whether there was jurisdiction to deal with certain of Mr Shojaee's complaints.
17. On 10 April the Tribunal wrote to the parties and in particular to inform Mr Shojaee that Mr Grazin a Tribunal Chairman had directed that one day's hearing should be sufficient to enable the Tribunal to decide:

"the preliminary issue"

It continued:

"The Applicant should note that at a pre hearing review, the Tribunal is debarred from hearing any evidence or, by extension, from considering documents that constitute evidence. The matter is decided on oral submissions only, 1 day is therefore quite sufficient."

What the Tribunal there say is not altogether correct, because of course, as we shall come to shortly, it is possible for there to be written submissions at a pre-hearing review.

18. Mr Shojaee wrote back to the Tribunal on 12 April asking that the Chairman, Mr Sneath should give urgent clarification and he refers to the directions of 25 March, 5 April and 10 April and he said Mr Grazin orders:

"Have created a confusion that needs an urgent clarification that the Applicant is clear about the nature of the hearing on 22 April and the length of the hearing: 'I hope to receive your clarification that I would be able to take the right action with respect of the documents and witnesses I would like to emphasise again the 2 days as essential for the Preliminary Hearing issues.'"

19. The Tribunal, on 12 April wrote to NAS/UWT to say that the preliminary issues in both cases would be disposed of on 22 April as referred to in the letters of 7 and 9 February. On 16 April the Employment Tribunal responded to Mr Shojaee by saying that Mr Sneath, the Regional Chairman had directed that the hearing would in fact remain listed for one day and that the two cases were listed for Preliminary Hearing, Pre Hearing Review and Directions Hearing in accordance with the Notice of Hearing of 25 March and various letters written by the Tribunal to which we have referred. It is right to say that no indication is given by the Tribunal as to which applications will be dealt with by way of Preliminary Hearing, Pre-Hearing Review or Directions Hearing.
20. Also on 16 April the Treasury Solicitor wrote seeking clarification as to whether the hearing was to be considered as a pre-hearing review and a preliminary hearing in respect of all Respondents in both sets of proceedings. The Treasury Solicitor who acted for OFSTED wanted confirmation that there would not only be a preliminary hearing but also a pre-hearing review at the same time. At about this time Mr Shojaee was in touch with Mr Delafield who was a consultant in Cambridgeshire acting on behalf of Dr Shaw. Mr Shojaee had not intended, so he has told us, to make Dr Shaw a personal respondent although he would have been entitled to do so. He intended to seek relief against the person he considered to be the principal or the employer and that is in effect Bradford Metropolitan District Council. The Council had taken the view that Dr Shaw was an independent contractor and it could not act on his behalf. He therefore was in touch with Mr Delafield who had written to him on 15 April to tell him that in his view Dr Shaw could not be a Respondent and asked Mr Shojaee to withdraw the claim to prevent unnecessary cost being incurred. He sent a copy of the contract for supply of services between Bradford Metropolitan District Council and Dr Shaw.
21. On 17 April Mr Shojaee wrote to Mr Delafield seeking to clarify what he considered to be a confusing issue. His opinion was that Dr Shaw should be represented by Bradford City Council Legal Services. "My allegations were against the Bradford Occupational Health Unit with Dr Shaw as a main player in the scenario. Shortcomings of others in that department are also subject of my complaint to the Tribunal." He asks for Mr Delafield's opinion and suggestions if any.
22. On 17 April the Tribunal issued a document headed, '22/4/02 PRELIMINARY HEARING/PHR/DIRECTIONS' and it then sets out a number of preliminary issues, six in all which include questions in relation to both applications whether they were out of time and whether certain of them should be struck out as misconceived in the sense they had no reasonable prospect of success. Reference is made as well to the estoppel issue that had arisen and it then continues:

"PRE-HEARING REVIEW

On both applications against all respondents and whether in the case of any part of the claims the Applicant should be ordered to pay a deposit as a condition of proceeding with that part or those parts of his claim."

23. On the following day Mr Delafield wrote to the Tribunal reporting on the telephone conversation he had had with. Mr Shojaee in which he informs the Tribunal that Mr Shojaee had said he did not intend Dr Shaw to be a Respondent but intended Bradford Occupational Health Unit to be the Respondent. He asked the Tribunal quite reasonably whether there was anything the Tribunal could do to clarify the Applicant's position but the Tribunal seem to have taken the view that the matter should now be left to the hearing on 22 April.
24. The hearing did take place on 22 April. The Chairman of the Tribunal was Mr Grazin It was not completed on that date. It was adjourned, part heard to 3 May. Unfortunately, only one of the lay members of the two who had been expected to attend did so and the first item of business was whether the parties would agree to the hearing continuing with two members only, the Chairman and one lay member. All parties agreed this was a sensible course because otherwise they would have to come back on another occasion and lose more time. They all therefore signed a consent form. On that occasion as well it would seem that Mr Shojaee agreed to sign a consent form whereby certain medical records held by the Occupational Health Unit of the Council should be disclosed to the Council. We will come to this later. A consent form was duly sent to him by the solicitor to the Council but Mr Shojaee felt unable to sign the consent form because it provided that disclosure would be made to all parties in the proceedings rather than simply to what I would describe as the Bradford Respondents.
25. On 27 April Mr Shojaee wrote to Bradford to the effect that the Council was the only party to request disclosure and that it should therefore not be extended to other parties. He could not see why these records should be disclosed to other parties since the health issues were the subject of dispute between him and the Council alone. He made it clear that it was more appropriate to seek the order of the Tribunal in a future hearing for disclosure of the documents to other parties and their inclusion in the bundle for the full hearing. He altered the consent form to provide that he should see the documents before they went to the Council's legal department and that the Council should only be permitted to use the documents in relation to giving advice to the headteacher and governing body of the school, to Serco, and the Occupational Health Unit and as evidence in the proceedings, and that the documents should not be disclosed to any party without further consent of the Tribunal.
26. The hearing continued on 2 May and Extended Reasons were given I think on 16 May. It is right at this point in time to record that when the hearing had began on 22 April at some point in time Mr Shojaee who had two witnesses with him and some documents asked whether his witnesses, one of whom had to leave that morning, could be heard at an early stage once the issues relating to limitation had been dealt with. He tells us, and this does not appear to be the subject of any dispute that Mr Grazin, the Chairman then said to him ' well the other issues are issues that are going to be dealt with by way of a pre-hearing review and evidence is not admissible and so we really do not need your witnesses for that purpose.' The Order was amended, we note on 31 May. We believe that the names of some of the defendants have been incorrectly set out. The effect of the order is as follows:

(1) By agreement the proceedings against Dr Shaw were withdrawn and proceedings so far as the allegations against him were concerned were to proceed against the School and the Council. (2) He was ordered to pay certain costs to Dr Shaw on the basis he had conducted the proceedings unreasonably. (3) and (4) It recorded that he had withdrawn certain allegations against the Union in respect of breaches of Sections 27 and 45 of TULCRA. (5) and (6) The limitations issues were resolved in his favour both against the Union and against what I would describe as the Bradford Respondents. (7)   His complaint in relation to OFSTED was dismissed because it was out of time and it did not fall within Part 2 of the Race Relations Act. (8) The Tribunal came to the conclusion that certain matters in his Originating Application so far as concerned the Council had been determined in the earlier proceedings in December 2000 and there is in the bundle an amended version of the Originating Application deleting certain issues. (9) The Employment Tribunal then recorded that they had jurisdiction to consider the allegation against Cambridge on the basis that the allegation against it was one under Section 33(1) of assisting discriminatory conduct on the part of the Bradford Respondents. (10) The Tribunal then went on to find that the complaint against Cambridge had no reasonable chance of success and (10) ordered Mr Shojaee to pay a deposit of £250 pursuant to provisions of Rule 7(4) of the Employment Tribunal Regulations which we will refer as "the Regulations". (12) An Order was made in favour of the Union on similar grounds also in the sum of £250 (13) and in respect of the Bradford Respondents in the sum of £500 again on the basis that his proceedings had no reasonable chance of success.

27. On 24 June having received the decision Mr Shojaee appealed to this Tribunal in relation both to the Orders of 22 April and a further Order of 3 May. The hearing was completed on 3 May but the Order was issued on 16 May. Mr Shojaee's notice of appeal is relevant because, so far as concerns Cambridge and the Union and also the Council, his complaint is not that he was prevented from putting submissions or evidence before the Tribunal, but that the Tribunal had in fact found in favour of the Respondents in relation to Cambridge. Mr Shojaee had said:

"Mr Grazin also ignores the fact the Applicant claimed he had real evidence to prove the CEA [Cambridge] even has compromised his normal rules and procedures in dealing with the application of the Applicant. The action of Mr Grazin is a clear case of institutional racism that with the abuse of his power tries to jeopardise the chances of the Applicant by his biased attitude and lack of respect to the reliable evidence he has heard"

And he suggests that the Order for the payment of the deposit was intended to raise an obstacle to deny justice to the Applicant.

28. In relation to the Union he refers to a letter from NAS/UWT he maintained clearly identified the differential treatment of the Applicant as compared to a white comparator. It was suggested that the Tribunal was misled. We have seen the letter that was before Mr Grazin and we have to say that although Mr Shojaee is clearly right in saying there was a letter, it does not bear out the contention that he has in some way being treated less favourably than a white comparator.
29. Mr Shojaee's conclusion is that "the decision and the Orders contested above are a clear sign of institutional racism that aims to facilitate the miscarriage of justice. I hope the Employment Appeal Tribunal reverses these decisions."
30. Mr Shojaee did not make any of the payments which he was required to make by way of deposit nor had he of course dealt with the disclosure of medical records in a way that the Bradford Respondents wished. The result was that in October (I think the Order was dated 2 October but was amended on 9 October) all of his application were struck out. On 9 October 2003 the Employment Tribunal refused to extend his time for appeal against the original order (or stayed in the case of failure to agree to disclosure of medical records) that he should give consent for the disclosure of his medical records. Extended Reasons for the striking out and stay were issued on 23 August and on 30 November Mr Shojaee presented his second Notice of Appeal. This second Notice of Appeal again does not complain that he was not afforded the opportunity of making appropriate submissions and representations and of putting all material before the Chairman on the application that led to his having to pay a deposit:

"Reasons for appeal

Dichotomy is a natural law and double standard behaviour of humans is a fact of life which stems from this natural law. While the underlying principal of the judicial system is to ensure that all parties are an equal footing and the overriding objective is to deal with cases justly. The miscarriage of justice is also a fact of life too. The Article Six of the Humans Right Act 1998 is the recognition of this fundamental fact that judiciary is not immune from playing double standard with the abuse of the mechanisms which are designed to maintain the justice. This abuse, whether intentional or by mistake, is the main source of all cases of miscarriage of justice.

The striking out decision made by the Chairman, Mr Grazin, is continuation of the same miscarriage of justice that allowed the unsafe evidence and in majority of instances the clear cases of perjury committed by the respondents to form the fact for his decisions. No impartial tribunal would have reached such a decision when all the evidence with no ambiguity indicated clear acts of racial discrimination by way of victimisation against me. The breach of the law of evidence and the abuse of the judicial mechanism in dealing with my applications is the contravention of the Article Six of the Humans Right Act too. This kinds of judgments is the green light to my employers that they could continue to victimise me racially with confidence, and this is exactly what they continue to do so. For this reason I would like to make a request that I would be allowed to present new evidences in support of my case in the appeal process."

31. On 13 February there was a directions hearing in the Employment Appeal Tribunal. Mr Shojaee confirmed he was appealing against the orders of the Employment Tribunal on the basis that the Employment Tribunal was biased or engaged in improper conduct. His Honour Judge McMullen QC who dealt with the matter then gave directions in relation to the appeals against the Orders of 16 and 31 May and 23 October. He dismissed an appeal against the decision of the Registrar refusing an extension of time in relation to the Order for disclosure of medical records and refused permission to appeal to the Court of Appeal. On 2 May Mr Shojaee withdrew his appeal so far as it concerned OFSTED. We need say no more about that because it is not relevant for present purposes.
32. On 8 July Mr Shojaee sought an adjournment of the appeal on the grounds that there was fresh evidence not before the Court and on the basis of the state of his health. On 14 July the matter came before Peter Gibson LJ for an oral hearing in the Court of Appeal. We assume that the original permission had been refused on paper, and that Mr Shojaee was continuing to seek permission to appeal against the Order of the Employment Appeal Tribunal on 13 February. We do not have a transcript of that judgment but Peter Gibson LJ declined to give Mr Shojaee permission.
33. Five days later on 19 July Mr Shojaee's application for permission to appeal against the decision of Judge Clark (who had refused him permission to have a full hearing in relation to his appeal against the December 2000 Employment Tribunal was heard) came before the Court of Appeal. Sedley LJ refused permission to appeal and also refused an application to submit fresh evidence. On 5 August Mr Shojaee filed his affidavit in relation to his allegation of bias in accordance with the Practice Direction of this Tribunal. The Affidavit contains generalised allegations of bias and accuses the Respondents of "using every trick and tactic to derail proceedings" misleading the Employment Tribunal and perjury. On 18 August his Honour Judge McMullen QC refused Mr Shojaee's application to adduce further evidence and gave directions for a hearing. Mr Shojaee sought both a review of the decision of his Honour Judge McMullen QC and also applied for permission to appeal to the Court of Appeal. He also on 6 September, on the grounds of his health and other reasons, sought an adjournment. On 8 September his Honour Judge McMullen QC refused a review of his earlier decision and refused permission to appeal and he also refused to adjourn the proceedings, as in his opinion it was in the interests of all parties to secure an expeditious hearing. He went on to say that the question of conciliation that had been raised by Mr Shojaee was one that should be encouraged up until the hearing which started yesterday.
34. On 17 September Mr Shojaee asked for his application to stay to be considered by a different Judge to his Honour Judge McMullen QC but that was not something that was acceeded to. He made clear that he wished to appeal to the Court of Appeal and possibly the House of Lords. He stated that the arrangements for the hearing of his appeal were fundamentally flawed. His Honour Judge McMullen QC had refused to accept evidence as this was a clear violation of the Practice Direction (paragraphs 1(4) and 1(5)). With the Orders of the 18 August in place it was "dead clear" that the stage was set for a miscarriage of justice. He suggested the Employment Appeal Tribunal has acted improperly and was directly responsible for perverting the course of justice. On 19 September the Deputy Registrar refused an application for stay and on the same day (although we have not seen his reasons) Tuckey LJ refused Mr Shojaee permission to appeal against the decision of His Honour Judge McMullen QC. We also think that we ought to draw attention to a chronology that was provided by Mr Shojaee which concludes:

"More conspiracies have been executed against the Appellant after the submission of the originating application, the Employment Tribunal in January 2002. It in inappropriate that I go through their details here. However, it is dead clear that the hidden policy of racial discrimination by way of victimisation against the Appellant is still active and will remain active as long as the Employment Tribunal and the Employment Appeal Tribunal are instrumental and perverting the course of justice by their bias and improper conduct of this dispute. All these have deteriorated my health to a very worrying level."

We apologise for the length of part of our decision that goes through the history of this matter but we think it is important to set in context the matters raised by this appeal.

35. So far as the Notices of Appeal are concerned it is right to say that a fair reading of these suggests that Mr Shojaee's complaint is one of bias and improper conduct on the part of the Tribunal and in particular that the Tribunal ignored his strong case and accepted the case which he considered to be perjured put forward by the Respondents. In his skeleton argument Mr Shojaee raises some 8 points. Firstly, there was improper conduct on the part of the Employment Tribunal not to be clearly specific in assigning the specific issues to the specific type of hearing prior to the hearing date. Secondly, there was improper conduct on the part of Mr Grazin in seeking the consent of the parties to proceed on the basis of 2 members only without declaring that he had a casting vote. Thirdly, he complains of the improper conduct of Mr Grazin in moving preliminary issue points to the pre-hearing review at the hearing without having gone through the procedure set out in the rules. Fourthly, there was improper conduct on the part of the Employment Tribunal and bias by Mr Grazin in dealing with the way in which Dr Shaw was to be represented. Fifthly, there was improper conduct and bias in ordering Mr Shojaee to pay deposits. Sixthly, Mr Grazin's conduct was improper so far as the issue of medical consents were concerned. Seventhly, the Orders striking out the proceedings were unjustified as they were the product of the improper conduct which was itself subject to an appeal and eighthly he referred to improper conduct at the Employment Appeal Tribunal and serious errors of law.
36. These included the premature listing of the case to a full hearing before issues of evidence were completed. Secondly, the unlawful decision of his Honour Judge McMullen and the vexatious request from the Respondent's solicitor to remove Affidavits from the file. Thirdly, that the appeal would proceed in the absence of vital documents and witnesses and fourthly there had been a number of breaches of the Employment Appeal Tribunals Practice Direction. A further point was made by Mr Shojaee relating to conciliation. It is quite clear that all relevant parties certainly the Bradford parties had agreed to conciliation at ACAS but this conciliation of course is only available when proceedings in the Employment Tribunal are extant, and after the proceedings were struck out Bradford was no longer willing to proceed assuming it could with the conciliation process. Mr Shojaee is anxious that some form of conciliation should take place and in fact we believe would wish that these proceedings should be stayed or adjourned to enable conciliation to take place.
37. We, as we have already said agree with His Honour Judge McMullen QC that conciliation or mediation in some form will be highly desirable in this dispute. We consider that it is in the public interest that the parties should attempt to negotiate and settle their differences because it is reasonable to suppose that if Mr Shojaee's employment is terminated or if there is further conduct which he considers to be discriminatory, it is almost inevitable that there will be further lengthy and expensive proceedings. We hope therefore that the parties will consider what we say and attempt to ensure that any future disputes between them, and the termination of Mr Shojaee's employment, should be settled by negotiation. We make it clear that what we are saying forms no part of any judgment on the merits but represents the views of the Employment Appeal Tribunal having seen and heard a great deal about this dispute and we venture to make this suggestion in case it is of assistance to the parties.
38. We have not hereto said much about the decision of the Employment Tribunal. The Employment Tribunal as we have noted made an Order for costs in favour of Dr Shaw. It resolved the issues of limitation defences in favour of Mr Shojaee and according to Mr Shojaee the Tribunal then said and this does not appear to be the subject of any dispute, that the Tribunal would go on to deal with the other issues. These related to striking out, estoppel and deposits, by way of a pre-hearing review at which there was no provision for witnesses to be called or evidence to be given. The Employment Tribunal came to the conclusion that all the proceedings were misconceived and had no reasonable chance of success. They declined to strike out the proceedings but nonetheless ordered the deposits that we have referred to.
39. The Employment Tribunal no doubt had in mind the decision of the House of Lords in the case of Anyanwu which was cited to them and we think that we should draw attention to what was said by Lord Steyn and we quote at paragraph 24:

"For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain in the allegations made by the appellants it would be wrong to strike out their claims against the university."

40. The Employment Tribunal based its decision to justify ordering payment of deposits, firstly on the basis that similar allegations of conspiracy and bias had been made in the proceedings heard in the December 2000 proceedings. We refer to what they say in paragraph 32 which concerns claim against the Union:

"We could see no basis upon a substantial number of separate officers of this Union would have conspired together and/or with other bodies deliberately to discriminate against the Applicant. We put the matter in these strong terms because that is the nature of the Applicant's case - that is that there was a conspiracy. It is rare that Applicants put the matter that strongly in writing, although they do frequently give evidence to that effect. The Applicant's case is to be judged on the basis upon which he puts it. We can see no reasonable prospect of success in respect of that matter."

41. As we say they decided not to strike out but to order a deposit in the sum of £250.00. At paragraph 43 so far as concerns the Bradford Respondents the Tribunal say:

"The Applicant failed to put forward one single incident or one single series of acts on the part of these Respondents which could, of itself, amount to an act of discrimination. Rather than set out particulars of any acts of discrimination, the Originating Application contains a series of generalised allegations entirely lacking in any particulars to enable these Respondents to know the case they have to meet."

That is a factor which the Employment Tribunal clearly had in mind and it says:

"Similar considerations apply, in our view, to each of the Applicant's other heads of complaint against the First three Bradford Respondents. Effectively, the Applicant alleges that all of these parties were engaged in a conspiracy. He puts forward no reason why the various Respondents should want to act in that way, save perhaps, that they resented that they had been the subject of earlier proceedings and accordingly sought to victimise the Applicant. We bear in mind that throughout this period, the Applicant remained an employee of the First and Second Respondents and a Teacher at the school, except of course when he was ill. In our view, within the teaching profession, there would be every reason for the First and Second Respondents to seek to encourage a harmonious relationship, rather than seek to engage in the type of conspiracy which the Applicant alleges."

And they note that the conspiracy was not only between Mr Jackson and the Headteacher but between the Occupational Health Unit and the Headteacher and between The Governors and the Headteacher. While it might be the case they say in paragraph 47:

"That two parties could conspire for improper reasons, it seems to us that the chances that so many discrete parties would actively and consciously conspire against this Applicant are so small as to be discounted, if not entirely clear certainly to the point at which we can say that there is no reasonable prospect of success of such allegations."

They went on also to issue a cost warning.

42. We now turn to consider the specific matters that had been raised. The first one relates to bias and it is a matter of note that Mr Shojaee has accused five chairmen of Tribunals, Mr Barton, Mr Leath, Mr Sneath and Mr Miller and Mr Grazin of bias and also his Honour Judge McMullen QC. He was unable to give any motive for bias on their part and effectively what he was saying was that if a judge or a chairman of the Tribunal makes one or two errors, well, that is a matter which can be the subject of appeal but where they make numerous and significant errors the only conclusion could be that they were biased. We regret to say that this is an allegation that trips too easily off the tongue. Having heard Mr Shojaee we are not wholly convinced that he appreciates what bias is in the sense of the law. Bias as we understand it was described by Lord Goff in the case of R v Gough [1990] AC 646:

"I think it unnecessary, in formulating the appropriate test, to require the court should look at the matter through of the eyes of a reasonable man because the court in case such as these personifies a reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether having regard to those circumstances there was a real danger of bias on the part of the relevant member of the tribunal in question in, a sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

43. The matter was taken somewhat further in the case of Medicaments and Related Classes of Goods No 2) [2001] 1WLR 700 having regard to the Strasbourg jurisprudence when Lord Phillips had this to say:

"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different the test applied in most of the Commonwealth and in Scotland. The Court must first ascertain in all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased "

Lord Hope in the case of Porter v McGill suggested that subject to that adjustment the views expressed by Lord Goff in the case of Gough set out the law in relation to bias.

44. Looked at in that sense there is nothing as it seems to us that could possibly justify an allegation of bias against any of these chairmen. There is no suggestion any of them had any interest in the proceedings or any animus, and very fairly during the course of the hearing Mr Shojaee appeared to accept this and accepted that he was really concerned not so much with bias, as with the judgments that had been given. However it has to be said that making allegations of bias is emotive. It is a very serious allegation to make and we are not sure if Mr Shojaee really appreciated at the time, how hurtful such allegations were and how difficult it is to conciliate or reach an agreement when such serious allegations are being made. We say the same in relation to allegations of conspiracy.
45. It seems to us that the effect of making these allegations of bias, which we say again are unsubstantiated, and were in effect withdrawn has been to deflect attention from Mr Shojaee's complaints as to the procedure adopted by the Tribunal and has served to raise the temperature and also to raise stress levels for everyone involved, in particular Mr Shojaee whose health we note is not of the best.
46. So we reject any allegations of bias and so far as the appeal remains based upon allegations of bias it must be dismissed. So far as Dr Shaw is concerned it is most unfortunate that Dr Shaw is not before the Tribunal. It is not clear to us why he has not been effectively treated as a party to this appeal because Mr Shojaee is appealing against the Order for costs in his favour and we feel bound to say having only heard one side of the argument so as to speak that Mr Shojaee's submissions in this regard seem reasonable.
47. We cannot however make an Order in the absence of Dr Shaw and our views must be understood as being wholly provisional not having heard from him. We therefore direct that the Tribunal should write to Dr Shaw's representative and invite him to notify the Employment Appeal Tribunal whether he wishes to contest the appeal against the Order for costs made in his favour. If he does wish to do so then directions will be given for the hearing of the appeal at which both Mr Shojaee and Dr Shaw or his representative can make submissions.
48. If Dr Shaw does not wish to attend then the Tribunal will deal with the matter in some other way. We now come to consider the question of estoppel but before doing this it seems helpful to draw attention to the rule. Rule 7(1) provides:

"A Tribunal may at any time before the hearing of an Originating Application on the application of a party made by Notice to the Secretary or of its own motion conduct a pre hearing review consisting of a consideration of the (a) the contents of the Originating Application, Notice of Appearance (b) any representation in writing and (c) any oral argument advanced by and on behalf of a party.

(3) A pre hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral arguments of the review if they so wish

(4) If upon a pre hearing review the Tribunal considers the contentions put forward by any party in relation to a matter required to be determined by a Tribunal have no reasonable prospect of success the Tribunal may make an Order against that party requiring the party to pay a deposit of an amount not exceeding £500.00 as the condition of being permitted to continue to take part in the proceedings relating to that matter."

And the rule goes on to provide that if the party against whom an Order has been made is not paid the amount specified in the Order then the Tribunal is required to strike out the Originating Application or Notice of Appearance as the case may be.

49. It is right to note that the way in which the Tribunal dealt with this matter was by no means clear. It was not clear to any of the parties until the last minute which matters were to be dealt with by way of preliminary issues and which by way of pre hearing review. The application for the deposit had to be by way of pre hearing review but the application to strike out the proceedings on the basis that they were bound to fail, did not. It is possible for the parties to rely upon evidence, although oral evidence is generally unusual, in striking out applications, but generally the Tribunal will consider documentary evidence and what have you. Such is not the case in relation to pre hearing reviews although the parties may make written submissions.
50. So far as allegations of estoppel were concerned theoretically it would have been possible for Mr Shojaee to adduce evidence and produce documents unless they were dealt with at a pre hearing review. But the basis upon which the Employment Tribunal considered that there was an estoppel was one which in our view cannot be faulted. It was on the basis of a comparison between the contents of his Originating Application against the Bradford Respondents and the matters that were dealt with in the December 2000 decision. Mr Shojaee's complaint was not that there was no estoppel, but that it was inappropriate for the Tribunal to find that there was when there was an outstanding application for permission to appeal to the Court of Appeal. In our opinion that point no longer has any validity at all having regard to the judgment of Peter Gibson LJ. In any event we consider that the Employment Tribunal were quite correct to conclude that having regard to the decision of his Honour Judge Clark there was a decision on the point and it would not be in the interests of the public for there to be an adjournment of the strike out or estoppel applications.
51. The next matter upon which Mr Shojaee complains is again a matter which is not referred to in his Notices of Appeal. He maintains, and we understand, that as a lay person he was not familiar with the rules of the Employment Tribunal. He attempted to obtain these rules but did not in fact succeed in getting them until February 2003. When he did he appreciated for the first time what he had not been told when asked to agree to a two man Tribunal on 22 April namely that the Chairman would have a casting vote. He told us that had he known this he would not have agreed to Mr Grazin and one lay member continuing the proceedings because he had been dissatisfied with Mr Grazin's earlier decision to limit the directions, hearing of the preliminary issues to one day, and not deal with them by way of pre-hearing review.
52. It seems to us however that the fact that no disclosure of this was made to him is neither evidence of bias on the part of the Chairman nor does it affect his consent, while of course it is not a case that Mr Shojaee can be assumed to know the law. It seems to us no part of the function of the Employment Tribunal to go into great detail and explain about casting votes and what have you, bearing in mind that the decision will be taken by two persons, and there is no apparent unfairness in this. We note in any event that the decision of the Employment Tribunal was not decided by Mr Grazin's casting vote but was a unanimous decision and we do not think that Mr Shojaee has any legitimate complaint in this regard even were it one that he were to be permitted to pursue having regard to the absence of the point in his Notice of Application.
53. The same point is made in relation to a point which has taken up a certain amount of time, namely that the Employment Tribunal failed to comply with its obligations under rule 7(3). Mr Shojaee is right. The Employment Tribunal should have made clear at an early stage and given notice of those matters that were to be dealt with by way of preliminary issue and those by way of pre-hearing review. It is also right that Mr Grazin perhaps should have appreciated that when he decided that the questions of striking out and the estoppel should be dealt with by pre-hearing review, that the necessary notice was not being given.
54. The point is made by Miss Proops that there is no mention of any complaint in the Notices of Appeal that Mr Shojaee was deprived of the opportunity of putting material matters before the Employment Tribunal that might have led it to come to a different conclusion. His complaint is that he had a strong case which he put before the Tribunal and which the Tribunal chose not to accept. It is clear that this is a point not raised by the Notices of Appeal and for that reason alone we would have little option but to reject the appeal but we would prefer to deal with the matter on the merits and we have considered very carefully as to whether or not any defect in procedure caused any prejudice to Mr Shojaee. We have looked very hard to see if there was any prejudice but we have not been able to see any. There is no material placed before us by Mr Shojaee that he says he could have put before the Employment Tribunal had he been given the opportunity to do so which might have led to a different result. This is all the more important because even though there may be an overlap between applications to strike out and applications that there should be a deposit paid under rule 7, because the threshold criteria are the same, applications in relation to a deposit can clearly only be heard on the basis of oral and written submissions and not on the basis of any evidence. We also note that there were some 11 days between the hearing commencing on 22 April and its conclusion on 3 May when Mr Shojaee could, if he had wished to do so, have adduced further material. In our opinion the Employment Tribunal was entitled to conclude as it did that the allegations that there had been conspiracies between Bradford Council, the governors of the school, the Union, Cambridge, OFSTED and the Occupational Health Department of Bradford Council were incredible, all the more so as similar allegations, albeit not identical allegations, not involving all of the same parties had been considered in detail and rejected by the Employment Tribunal presided over by Mr Burton.
55. Mr Shojaee has submitted, so far as the Union was concerned, that he had been advised that he had a viable case by the Union's solicitor and that it was a clear case of discrimination as a white comparator in similar circumstances was given support but he was not. A letter was referred to, which we have, of 9 August 1997 concerning a Mr Robinson. Suffice it to say that the Tribunal considered, and we also consider that this letter does not make out Mr Shojaee's case in this regard.
56. We regret that the procedure adopted by the Employment Tribunal was not as clear as it might have been but as we cannot see any prejudice caused, regardless of the fact that this was a matter not contained in the Notice of Appeal, we feel that we must dismiss this ground of appeal.
57. The proceedings were also stayed on the basis that Mr Shojaee had failed to give an appropriate consent to the production of his medical records. We feel bound to say in this regard that we feel some sympathy for Mr Shojaee and we take the view that this was an order being made long before issues as to disclosure generally between the parties were to be considered. There was no Order at that time for disclosure between the parties and we think that Mr Shojaee was perfectly reasonable in saying that firstly he wished to see the medical records himself before they went any further. Secondly, that albeit it might be necessary for those documents to be in due course disclosed to non Bradford parties and also be placed in the Tribunal bundle, in our opinion he was perfectly entitled to limit immediate disclosure to non-Bradford parties having regard to the sensitive nature of documents. These included medical records, and the question as to whether they needed to be disclosed to other parties who had not asked for disclosure at that stage, is a matter that should have been reserved to the Employment Tribunal that subsequent agreement between the parties. It seems to us therefore that the Employment Tribunal fell into error in treating Mr Shojaee's reasonable stance in relation to the disclosure of these records as being unreasonable and were this to have been the only matter upon which his claim against the Bradford Respondents were to have been struck out we would have reversed that decision.
58. We hope we have covered all the matters raised. We apologise for the length of this judgment and also the fact that it is an extempore judgment. We felt the parties would rather know the reasons today than receive them at some later stage. We will give directions, however. We direct that Miss Proops should serve a schedule of costs, the skeleton argument in support with copies of any authorities by 7 October. Mr Shojaee is to reply by 4 pm on 21 October and the Respondents may respond by 4 pm on 7 November.