Appiah & Anor v Bishop Douglass Roman Catholic High School

In February 2002 the appellants were students at Bishop Douglass Roman Catholic High School (“the School”) in the London Borough of Barnet. Following an incident on 27 February 2002, they were excluded from school. They are both of black African ethnicity. In due course they commenced proceedings in the Central London County Court claiming unlawful discrimination under the Race Relations Act 1976. They also claimed victimisation. In a judgment given on 21 October 2005, His Honour Judge Crawford Lindsay QC dismissed their applications. They now appeal to this court, permission having been granted by Latham LJ. As one of the grounds of appeal concerned the burden of proof in discrimination cases, the appeal was heard immediately following those in Madarassy v Nomura International plc and Brown v London Borough of Croydon, both of which also raised issues relating to the burden of proof. Madarassy and Brown were appeals from the Employment Appeal Tribunal, the cases having originated in employment contexts.

Rinehart Appiah (“Rinehart”) was born on 25 September 1984. Frank Wabwire (“Frank”) was born on 29 August 1984. In February 2002 they were both aged 17. They were in the final year of their studies at the School and were due to complete their GNVQ courses in the summer of that year. On 27 February there was a fight in the Sixth Form Common Room. Both appellants were involved. So also were John Benitez and Adam Daghorn. They are of white European ethnicity. In the course of the incident John Benitez sustained a head injury which necessitated his being taken to hospital. The incident was first investigated by Mr Wilkins, the head of the sixth form at the School. He asked Rinehart and Frank to go home while the matter was investigated. He took statements from those involved and some who had been nearby. Inevitably, there was not total consistency. There never is following such an incident. Mr Wilkins passed on the fruits of his investigation to Mr John Meadows, the head teacher. In his witness statement, Mr Meadows describes his interpretation of the available material as follows:

“The evidence showed that Rinehart and Frank had started the incident and had increased the level of violence and that John sustained injuries which required an attendance at hospital. I had to decide how to respond. Permanent exclusions were appropriate where excessive violence has been used. … I also bore in mind that hospital attendances were rare and injuries sustained at school were rare. Because of my belief that Frank and Rinehart had started the attack, I decided to exclude them both. They had acted in concert. John I regarded as a victim, nor was there anything to suggest that Adam had used violence.”

On 8 March 2002 Mr Meadows wrote letters to the parents of Rinehart and Frank. They were in similar terms and I take the following passage from the letter to Mr and Mrs Appiah:

“I am writing to you subsequent to the very unpleasant incident which occurred in our Sixth Form Common Room on Wednesday 27 February in which your son Rinehart was involved. This incident has been the subject of extensive investigation and we have come to the following conclusions.

There is a history of on-going and low level antagonism between a small number of students. This led to an exchange on the Tuesday which was the catalyst for what occurred the following day. There is no absolute view on what took place during the confrontation as accounts differ between the main participants and the onlookers. What is, however, clear from a variety of sources, is that the assault sustained by John Benitez was well in excess of any action which could reasonably be held to be in self-defence and that a chair was thrown at some point during the disturbance. These points are borne out by the injuries which he sustained.

To that end I regret to have to inform you that Rinehart will not be allowed back onto the school premises. In recognition of the nature of his course requirements we have requested that staff both set and receive work towards completion of his course and that this is either delivered by a third person or posted to and from school.

We now consider the matter closed and will make no mention of the incident in future when generating references for your son. We shall merely say that he left school after completing his course.”

In the days that followed Mr Meadows was advised by the Local Education Authority that the terms of the exclusion were not in accordance with statutory requirements. Accordingly, he wrote again to the parents on 27 March. The letter to Mr and Mrs Appiah stated:

“Subsequent to my recent letter concerning the incident in the Sixth Form Common Room, I have considered the matter further and have decided to exclude Rinehart for a fixed term period of 45 school days. The period of exclusion runs from Wednesday 28 February until Wednesday 15 May inclusive.

As previously stated Rinehart will be able to sit his examinations and receive work from school which can be returned for marking.

The Governors’ Discipline Panel will meet to consider my decision and you will be notified of the date and the time.”

The letter also provided contact details within the Local Education Authority and the Advisory Centre for Education. The term of 45 school days was tantamount to permanent exclusion because it ended at a point when the students would have been physically absent from school on study leave in preparation for their examinations. In the event, the Governors’ Panels did not meet until 9 May, on which date separate hearings took place in relation to each of the appellants. In each case, the governors decided that Mr Meadows had acted reasonably and that 45 days’ exclusion was an appropriate sanction. Letters notifying the result of the Governors’ Panels were sent to the parents on 10 May. The letter in the court bundle is the one sent to Mr Wabwire, which was in the following terms:

“The specific incident that led to Frank’s exclusion took place on 27 February 2002 and resulted in another student requiring hospital treatment.

The Committee took careful note of what you and your adviser had to say on Frank’s behalf. It also had regard to the submissions made by the school.

As was explained, the length of a fixed term exclusion is a matter for the head teacher. In this particular case the Committee took the view that Mr Meadows had acted reasonably, albeit it was acknowledged that his letter of 8 March might have given rise to some confusion.

The Committee wish Frank every success in his forthcoming exams.”

The essential case sought to be advanced by and on behalf of the appellants in the County Court proceedings was expressed in paragraph 6 of the amended Particulars of Claim as follows:

“[The appellants] claim racial discrimination for less favourable treatment on the grounds of race, ethnicity and/or colour in that each was subjected to the unlawful sanction of an informal permanent exclusion, by the head teacher, and thereafter victimised by the defendants by [their] failure to investigate properly or at all complaints made by them and on their behalf of racial discrimination and in upholding the subsequent decision of the head teacher to impose a 45 day fixed term exclusion.”

The pleading proceeded to raise as comparators John and Adam, stating:

“These boys had been involved in the same incident … but received no sanction for their misconduct.”

By section 1(1) of the Race Relations Act:

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons … ”

Section 2 is headed “Discrimination by way of victimisation”. The material parts of it read:

“(1)

A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has …

(d)

alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”

In this case no issue arises in relation to the meaning of “racial grounds” or “racial group”, which terms are defined in section 3.

Discrimination in education is dealt with in Part 3 of the Act. The relevant provision is section 17, the material parts of which read:

“(1)

It is unlawful, in relation to an educational establishment … for a person … (“the responsible body”) to discriminate against a person …

(c)

where he is a pupil of the establishment

(i)

in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(ii)

by excluding him from the establishment or subjecting him to any other detriment.”

It is common ground that, in relation to the School, its Governing Body is “the responsible body” so that it may incur primary or vicarious liability.

By section 57 proceedings under Part 3 are allocated to designated County Courts, of which the Central London County Court is one. Section 67(4) provides:

“In any proceedings under this Act in a designated County Court … the judge … shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the Secretary of State, being persons appearing to the Secretary of State to have special knowledge and experience of problems connected with relations between persons of different racial groups.”

The burden of proof is now provided for in section 57ZA. Section 57ZA(2) states:

“Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a)

has committed such an act of discrimination … against the claimant, or

(b)

is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination … against the claimant,

the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

Section 32 provides for the vicarious liability of employers and principals.

The judgment has some unusual features. They begin with the very first sentence which reads:

“This is the unanimous judgment of the Court.”

That wording and other parts of the judgment consistent with it give rise to a ground of appeal to the effect that the judge misunderstood the role of assessors.

The second sentence of the judgment states:

“We consider that the claimants and their parents can legitimately feel that they were let down by the headmaster and the school authorities in relation to procedural and other failures arising from the exclusion of the claimants … ”

However, the judge then immediately noted that the case before him was one alleging discrimination and victimisation on racial grounds.

The next part of the judgment (paragraphs 2 to 7) is in the form of a brief outline of events between 27 February and 10 May 2002, mainly taken from Mr Meadows’ correspondence with the parents. Paragraphs 8 to 42 are in the form of “some reference to some parts of the evidence”. The format is unusual for a civil judgment in that it takes each of the witnesses and summarises the evidence given, mainly in cross-examination. For a fuller understanding of the totality of the evidence it is necessary to cross-refer to the witness statements of the respective witnesses. I shall need to return to some of the evidence at a later stage in this judgment.

Following his review of the evidence, which proceeds without comment, the judge turns to “the court’s findings of fact”. He does this by reference to five issues, no doubt based on the way in which the case had been presented by counsel.

The first issue was referred to as “the ethos of the school”. The case for the claimants had been presented on the basis that the school had a racist ethos. The claimants and their fathers had given evidence to that effect. The judge said:

“On this aspect of the case we were impressed by Mr Meadows’ evidence and accept what he told us. He was aware of and concerned about the issue of racial discrimination, and in his last years in post he was trying to improve the problems of discrimination and exclusion … and we accept his evidence about the general racial harmony in the school. Sadly, it became clear before us that both sets of the claimants’ parents now consider the school has a racist ethos. We reject that suggestion. We do not accept the evidence that was led on this aspect of the case from the claimants or their parents.”

In this regard the judge noted that Mr Appiah in particular had educated his three sons at the school and “he clearly would not have done that if he had any serious concerns, up until this incident, of racism”. The judge considered the complaints of Mr Wabwire and Frank about a racist ethos to be “afterthoughts in their additional witness statements … made at someone else’s suggestion”.

Still under the heading of the ethos of the school the judge made this observation:

“It is clear that the school had a high level of exclusions, particularly among the ethnic minorities. That is very much to be regretted, but sadly the national statistics show that nationally the state of exclusion of black Caribbean and black other groups is three times that of white British students for the period 2001- 2002. So although there were serious exclusions, we are not persuaded that that is indicative itself of racism within the school. It is to be noted that no suggestion was made in either of the Ofsted reports that the school had a racist ethos or that there were any significant racial problems. We accordingly reject the allegation that the school had a racist ethos.”

The second area addressed by the judge related to the investigation. One of the allegations made against Mr Wilkins had been that he had referred to the claimants as “animals”. The judge rejected that evidence and accepted the evidence of Mr Wilkins. He accepted that Mr Wilkins had not singled out black students. He added:

“Likewise, we accept Mr Wilkins’ evidence about the investigation. It was his first investigation in his new post. He carried it out, in our judgment, in a careful and conscientious way.”

The third issue related to the decision to exclude. The findings are expressed in these terms:

“We are not called on to decide what actually did occur. We are not prepared to accept the evidence of the claimants as to their respective roles in the fight as given to us in the course of this trial. We are, however, satisfied that it was open to Mr Meadows to reach the decision he did as to the roles of Rinehart and Frank. It was a reasonable conclusion for him to reach on the evidence available. We are also satisfied that it was open to Mr Meadows to decide that permanent exclusion was an appropriate penalty, given the seriousness of the incident and the fact that the participants were sixth form students. Sixth form students should set an example.”

The fourth issue concerned an assessment of Mr Meadows. It was plainly central to the decision. The material parts read as follows:

“…we have reached the conclusion that [Mr Meadows] was doing his best and was not influenced by racist motives and was not wanting to sweep the matter under the carpet. We accept what he said about his motivation for the suggestion in the last paragraph of the letter of 8 March 2002 and we broadly accept him as a truthful witness who was well-meaning and did not behave in a cynical or discriminatory way. We accept that he altered the exclusion to 45 days for the reasons stated, and we have concluded that by 2002 the job was simply too much for Mr Meadows. He let the parents down by not complying with the provisions of Circular 10/99 and he and/or the governors let the parents down by not arranging for the hearing of the various committee meetings to be held within the statutory time limits. These failures could well have led to an application for judicial review, but having heard Mr Meadows and Mr Leatherland [the Chairman of the Governors] we are satisfied that the failures were not racially motivated. Mr Leatherland was also new in post and it appears was not familiar with the relevant time limits, and there are obviously and inevitably problems at the beginning of a new term in convening a meeting of governors who are busy men and women to achieve a date that was mutually convenient for all of them. That does not excuse, however, the failure to comply with the statutory provisions which should be known to and applied, save in exceptional circumstances, by schools. Mr Meadows further let the parents and students down by not writing down his instructions to allow both the students to return to school at the end of the day if they were keen to do so. In addition, he ought to have seen Mr Wabwire and replied to his letter. Further, he showed discourtesy or a serious lack of judgment in not speaking to Mr Appiah on 11 March. A brief meeting with him to explain in broad terms his position would have been appropriate and might well have defused the situation. One can well understood Mr Appiah’s anger at the way he was treated on that occasion. Despite these criticisms, we accept Mr Meadows’ evidence and reject the suggestion that his conduct was the result of unfair discrimination.”

The fifth issue addressed by the judge concerned the decisions of the Governors’ Committees. The judge said:

“We reject the evidence of the claimants’ parents to the effect that the Governors were simply rubber-stamping the decision of Mr Meadows. In this regard we heard … from Mr Adeagbo who sat on the committee considering the case of Mr Appiah. We found him to be a highly impressive witness. He is of African ethnicity and he clearly took the role of being a governor seriously and was concerned about expulsions generally, and we totally reject the suggestion, as he did, that he was involved in any rubber-stamping exercise. We are satisfied that his committee reached an unbiased decision on the application and gave the representative a fair hearing.”

A similar finding was made in relation to Frank.

Having set out extracts from the evidence and having made those findings of fact the judge then said this:

“In conclusion, therefore, we broadly accept the evidence called on behalf of the defendants and it follows that the claimants have not proved facts from which we could conclude, in the absence of adequate explanation, that there has been an act of racial discrimination. If we had reached a contrary view we would have concluded that the defendants have proved that they did not commit, or are not to be treated as having committed the unlawful acts complained of. This is also not a case by reason of the conclusions that we have reached in which any adverse inferences can be drawn against the defendants.”

The judge then proceeded to answer a series of questions which had been posed by counsel in such a way that resulted in the dismissal of both claims. Nevertheless, he went on to consider the appropriate quantum of damages had the claims succeeded. Having regard to the authorities, he concluded that the appropriate award in each case would have been £1,000.

On behalf of the appellants Mr Nigel Giffin QC advances a number of grounds of appeal. He concentrates on four principal grounds which criticise the judge for (1) his approach to the statistical evidence; (2) his omission to refer to unconscious discrimination; (3) the burden of proof and the drawing of inferences; and (4) the role of assessors. In addition, Mr Giffin submits that the judgment is flawed as a result of inadequacy of reasoning. I now turn to deal with these grounds of appeal.

I have set out in paragraph 23, above, the reference in the judgment to the “high level of exclusions, particularly amongst the ethnic minorities” and the correlation with national figures. The judgment states that “although there were serious exclusions, we are not persuaded that this is indicative itself of racism within the school”. There is no doubt that statistical evidence can play an important part in a discrimination case. In West Midlands Passenger Transport Executive v Singh [1988] ICR 614, Balcombe LJ, giving the judgment of the Court of Appeal referred to the possibility that statistical evidence may establish a discernible pattern in the treatment of a particular group such as to give rise to an inference of discrimination (at paragraph 619D-G).

Mr Giffin submits that the judge did not engage sufficiently with the statistical evidence and that it was an error to take apparent comfort from the correlation with the national figures. To the extent that this submission is also relevant to the ground of appeal relating to the burden of proof and the drawing of inferences, I shall have to return to it. At this stage, I deal with it simply as a free-standing ground of appeal.

It is pertinent to observe that statistics did not play a prominent part in the presentation of the case in the County Court. This is unsurprising for two reasons. The first is that the emphasis was firmly on the allegation of overt, deliberate discrimination. The second is that, although the figures in respect of the School and nationally do show a disproportionate number of exclusions of black students, the stark mismatch is in relation to black Caribbean students rather than black African students (the racial group of the appellants). Black African students accounted for 20% of the roll and 26% of the exclusions. The corresponding figures for black Caribbean students were 15% and 27%; for white students, they were 26% and 17%.

I accept the submission of Mr Faulks that, in the context of this case, the judge was entitled to conclude that the statistical evidence by itself was probative of nothing, one way or the other. Moreover, in a case such as this there is an inherent limitation to the use of statistics. When the figures are reasonably close (20% : 26%), statistics can only gain probative force if it can be shown that a significant number of the previous exclusions of the group were or may have been discriminatory. No court or tribunal would be likely to countenance the reopening of numerous previous exclusions of other students in the hope that such an exercise may establish a discriminatory trend. In my judgment, it was permissible, indeed correct, for the judge to conclude that the statistics by themselves counted for little or nothing – the more so when set against his positive findings in favour of Mr Meadows and the governors. Moreover, I do not consider that, by likening the School’s figures to the national figures, the judge was taking comfort from the correlation. He was simply concluding that they were not significantly probative or supportive of an adverse inference.

It is axiomatic that direct discrimination may be either conscious or subconscious on the part of the discriminator. In Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 514, Cox J, giving the judgment of the Employment Appeal Tribunal, referred to “the insidious nature of discrimination” and added (at para 76),

“… discriminatory assumptions will frequently underpin the stated reason, even where the reason is given in good faith and generally believed, and the discriminator is unaware that such assumptions are operating.”

In the present case, the primary submission on behalf of the claimants in the County Court was one of overt, conscious racism but it is clear from the final written submission that they also advanced an alternative of subconscious discrimination and, indeed, drew the words of Cox J to the attention of the judge. Mr Giffin now submits that, by believing Mr Meadows and finding that he “was doing his best and was not influenced by racist motives”, the judge concentrated on overt, conscious discrimination and failed to consider the possibility of subconscious discrimination.

Consideration of motive is rarely an attractive or useful forensic exercise, except where statute specifically requires it (for example, in the definition of racially aggravated criminal offences: Crime and Disorder Act 1998, section 28). In discrimination cases, the better course is for consideration to focus on whether discrimination is “on racial grounds”, keeping in mind that racial grounds may be conscious or unconscious on the part of the discriminator. However, it does not follow that, by lapsing into the language of motive, a decision strays into legal error. For one thing, I do not think it right to give the narrow meaning to “motive” and “motivate” for which Mr Giffin contends. A motive can be either conscious or subconscious. Among the meanings of “motive” given by the Oxford English Dictionary, 2^nd edition, are “an inward prompting or impulse” and “that which ‘moves’ or induces a person to act in a certain way”. And one of the meanings of the verb “to motivate” is “to provide as a stimulus to some kind of action”. In my judgment, the language of the judge, when considered in context, was not being used purely in relation to conscious discrimination. As Mr Faulks points out, the words “not influenced by racist motives” denote consideration of both the conscious and the subconscious and “did not behave … in a discriminatory way” is an objective term, referable to both mental states.

There is always a danger in taking too analytical an approach to the words used in a first instance judgment or determination. I am satisfied that, read in context (including the numerous findings to which I shall return when dealing with the burden of proof), language of motive was not indicative of a failure to consider subconscious discrimination.

This appeal was listed with two other appeals – Madarassy v Nomura International plc and Brown v London Borough of Croydon – because all three cases raised issues relating to the burden of proof. Following the statutory amendments comprised in section 63A of the Sex Discrimination Act 1975 and section 57ZA of the Race Relations Act 1976, the Court of Appeal gave guidance on the approach required by the new provisions in Igen Ltd v Wong [2005] ICR 931, [2005] EWCA Civ 142. This is a difficult area of law and it is not surprising that Igen did not leave it in a state of simplicity. Of the present appeals, Madarassy has been treated as the lead case on the burden of proof point. It is not proposed to include yet another discourse on the statutory provision and Igen in this judgment, which should be read with Madarassy. What follows is intended to be the application of the law propounded in Igen and Madarassy to the facts and circumstances of this case.

The judgment in the Central London County Court came some eight months after Igen. The judge clearly formulated his conclusions in a manner that sought to reflect the wording of section 57ZA. The relevant passage is set out in paragraph 28, above. Essentially the judge held that the appellants had not “proved facts from which the court could … conclude in the absence of an adequate explanation that the respondent had committed … an act of discrimination”. In other words, the appellants had not attained the threshold necessary to impose upon the School the burden of proving that it had not committed such an act. Nevertheless, the judge went on to say that, even if the appellants had attained the threshold, the School had discharged the transferred burden. Although the judgment is somewhat terse at this point, it cannot be said that the judge misdirected himself as to section 57ZA. The case for the appellants is that he misapplied it to the evidence.

In seeking to make good this submission, Mr Giffin relies on the following matters. (1) Following a fight, the appellants were excluded but their white adversaries were not. (2) Whilst the School reached a tenable conclusion on respective culpability, it was not the only tenable conclusion in the light of the conflicting evidence. (3) Mr Meadows had been more generous with his time when dealing with the parents of the white students than he had been with the appellants’ parents. (4) There were serious procedural shortcomings in relation to the exclusion of the appellants, involving non-compliance with statutory requirements imposed by the School Standards and Framework Act 1998 and the Education (Exclusion from School) (Prescribed Periods) Regulations 1999 and guidance contained in Circular 10/99. The shortcomings included the imposition of an “informal” permanent exclusion for which there was no legal basis, exclusion without disclosure of all the considered evidence, inadequate communication of information, failure to deal with reasonable requests and failure to convene meetings of the Discipline Committee within the requisite time. (5) The statistical evidence. (6) Inadequate monitoring of the use of sanctions against ethnic minority students. (7) Evidence of Mr Meadows that teachers “had problems with black students”. (8) Evasive response to the statutory questionnaire.

Mr Giffin submits that these matters amount to proven facts such that the court could conclude, in the absence of an explanation, that the School had discriminated against the appellants and that, accordingly, the burden of proof transferred to the School. Accordingly, it was a legal error for the court to have concluded otherwise.

If these matters had stood alone, it may well be that the court would have been bound to conclude that the appellants had proved facts from which it could conclude, in the absence of an explanation, that there had been some discrimination. However, as has been made clear in Igen and Madarassy, the new statutory provision does not confine the court or tribunal to a consideration of the claimant’s evidence at the first stage. The evidence adduced on behalf of the respondent also falls for consideration. Whilst there is a distinction between fact and explanation, these categories cannot always be hermetically sealed: see Laing v Manchester City Council [2006] IRLR 748, at para 68, per Elias J. In the present case, as in any other, the mere establishment of a difference of race and a difference in treatment is not enough to cause the burden to be transferred under section 57ZA. It is for the claimant at least to establish facts from which it could be inferred that there has been discrimination “on racial grounds”: see Igen, para 29. If, having considered all the evidence, the court or tribunal comes to the conclusion that the facts do not establish a prima facie case of a difference in treatment on racial grounds, no burden is transferred. What Igen and Madarassy make abundantly clear is that section 57ZA and its equivalents do not require the court or tribunal to assess the evidence of the complainant in isolation, in the way that, for example, a court deals with a submission of no case to answer. That would be absurd in the present context where the consideration is taking place after all the evidence from both sides has been heard.

When one reads the judgment of the court below with this in mind, it is clear that, notwithstanding the unreasonableness and probable unlawfulness of aspects of the School’s response to the events of 27 January, the judge concluded, on the basis of all the evidence, that the appellants had failed to establish facts indicative of discrimination on racial grounds. He concluded that the School had been justified in its conclusion about the culpability of the appellants and in imposing the sanction of exclusion. Whilst Mr Meadows ought to have been more forthcoming in his dealings with the appellants’ parents and he and the governors ought to have complied with the statutory procedure and guidance, as a matter of fact their shortcomings had nothing to do with race. The same was true of the statistical material, referred to in relation to ground 1, above, the monitoring (the requirements for which became more onerous only after the events in question) and the questionnaire (which the judge did not see in the same light as contended for on behalf of the appellants). The comment about teachers “having problems with black students”, when seen in context, did not fix Mr Meadows with the state of mind that was suggested. I have set out the relevant passages from the findings of fact in paragraphs 21 - 27, above. It is not necessary to prolong this judgment with further analysis. It is sufficient to state that the judge plainly concluded, and was entitled to conclude, that the appellants had not established facts indicative of discrimination on racial grounds.

Even if that conclusion was a close call, it is plain that the judge immediately considered the alternative, that is that section 57ZA had, contrary to his finding, caused the burden of proof to be transferred. On that hypothesis, he was satisfied that the School had disproved discrimination on racial grounds. In my judgment, that alternative conclusion, which was and remains hypothetical, is unassailable in this court. Ground 3 therefore fails.

It is clear from section 67(4) that the role of the assessors is to “assist” the judge. Unlike the lay members of an Employment Tribunal or the Employment Appeal Tribunal, they are not part of a decision-making team. In the County Court, the decision is for the judge alone. Accordingly, when the judge referred to “the unanimous judgment of the court” and, on several occasions, to what “we” considered, concluded or were satisfied by, he fell into error. The question is whether it was an error of any materiality.

The leading authority on the role of assessors in this area is Ahmed v Governing Body of the University of Oxford [2003] 1 WLR 995, [2002] EWCA Civ 1907. Giving the judgment of the Court, Waller LJ explained the role in this way (at para 32):

“… the intention of Parliament [is] that in race relations cases judges were to be assisted by assessors in the broadest sense of helping them evaluate the evidence in an area of race relations. The fact that an assessor may be involved in the fact finding role, whether it be of primary fact or by way of drawing inferences from the primary facts, does not mean that the assessor is actually deciding the facts. The ultimate decision has to be for the judge, but section 67(4) requires the judge to use the assistance of assessors … ”

Prior to judgment, it is not generally necessary for the judge to disclose the particular assistance he is receiving from the assessors, unless they raise a new point upon which submissions ought to be invited (paragraphs 33-34). Waller LJ then said (at paragraphs 35-36):

“What should the judge say in his judgment about the use made of assessors? Again it seems to us that the detail and manner of conclusion reached with the assistance of assessors is on the whole confidential. But in the context of section 67(4) there is an important aspect to bear in mind. It must be apparent from the judgment that the judge has complied with section 67(4) and availed himself of the assistance of his assessors in reaching his conclusions on issues relating to possible racism. The section is there because it is feared that the experience of the judge in a particular area may be lacking. The judge should thus make clear those areas where he has had recourse to the particular experience of his assessors.

Where the judge accepts the evaluation of the assessors it will normally form part of the reasoning for the conclusion ultimately reached and … it must be right that this aspect is recorded in the judgment.”

The judgment then went on to give guidance in relation to cases where the judge disagrees with the evaluation of the assessors and more explanation is called for. However, that does not arise in the present case, it being abundantly clear that the judge and the assessors were in complete agreement about the evaluation of the evidence.

In view of that complete agreement, I do not consider that the aforementioned error of the judge is of any materiality whatsoever. Mr Giffin does not suggest that any “new points” are apparent from the judgment, requiring an invitation to make further submissions. There was no disagreement between the judge and the assessors. It is apparent from the judgment that the judge availed himself of the assistance of the assessors in reaching the conclusions expressed in the judgment. Thus, although the judge did err, his error did not vitiate the decision and it does not afford a sustainable ground of appeal against the finding that there was no discrimination on racial grounds.

Mr Giffin seems to attach less significance to a final ground of appeal which is essentially an attack on the sufficiency of reasoning in the judgment in connection with the rejection of the case based on, amongst other things, the shortcomings in the investigation and the victimisation claim. It is not necessary to say much about this. It is clear that, at each stage, the case failed because discrimination or victimisation on racial grounds had not been established and/or had been disproved. There is sufficient in the extracts from the judgment set out above, and in the answers to the questions suggested by counsel at trial, to establish compliance with Meek v Birmingham City Council [1987] IRLR 250 and English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. It is clear that the appellants lost because, notwithstanding that the School had dealt with a difficult situation in a manner which was partly unreasonable and probably unlawful, it had not discriminated on racial grounds.

It follows from what I have said that I find the grounds of appeal to be unsustainable. Like the judge, I consider that the School was culpable in certain respects – for example, in devising an apparently unlawful form of exclusion, in selling the parents short when concerns were being expressed and in the long delay in holding the governors’ meetings. It may well be that a timely application for judicial review would have been unanswerable. However, the only type of unlawfulness in issue in these proceedings is discrimination on racial grounds. The judge was not satisfied as to that. He was entitled to conclude as he did. I would dismiss these appeals.

I agree.

I also agree.