Forson v The Governing Body of Harwich School & Ors

This is the adjourned hearing of a renewed application for permission to appeal. At the hearing Dr Forson, who appears in person, handed up additional documents. I have taken time to consider them since the oral hearing.

On 1 July 2008 Dr Forson, who is a black and of Ghanaian origin, was dismissed with notice from his position at Harwich School where he had taught maths since April 2004. He holds degrees from universities in Ghana and the United States. His dismissal followed a written warning on 5 July 2007, a final written warning in October 2007 and a suspension on 23 November 2007.

His complaints of unfair dismissal, race discrimination and victimisation and his claim for an order for re-instatement were rejected by the employment tribunal (the ET) on 28 April 2009 after a 6 day hearing. On 18 May 2009 his application for a review by the ET was rejected, as was his appeal to the Employment Appeal Tribunal (EAT) on 2 March 2009 before HHJ McMullen QC sitting alone under EAT Rule 3(10) and his application for permission to appeal by Sir Richard Buxton on 17 March 2010.

As explained in the judgment of the EAT, in the decision of Sir Richard Buxton and by me during the hearing of the renewed application an appeal only lies from the decision of the ET in a case of this kind on a point of law, not from their findings of fact. Permission can only be granted if the proposed appeal has a real prospect of success.

As for the complaint of race discrimination the ET found as a fact that none of the instances of less favourable treatment alleged in October 2007, November 2007, January 2008 or July 2008 were on the grounds of race and that he was not treated less favourably than a hypothetical comparator would have been.

As for the complaint of unfair dismissal the ET found that the reason why he was dismissed was that the disciplinary body reasonably believed that Dr Forson had breached his first and final warning and that there had been an irreparable breakdown in trust and confidence. The investigation made into his conduct was reasonable and fair. Reasonable procedures had been followed. The ET concluded that the dismissal was within the band of reasonable responses.

In oral submissions lasting for 40 minutes and in his written representations and additional documents Dr Forson has made many criticisms of the school, the pupils, the headmaster, Mr Mountford, the ET and the judiciary generally.

He contends that there were racist actions by the school, which did not have a race officer and its personnel, that the pupils had made racist utterances and displayed racial prejudice, and that the headmaster had a lack of control over the school, which had taken a turn for the worse under his headship. There was no evidence to justify his suspension or dismissal, which were clearly acts of race discrimination against an African teacher. The reasons put forward for those actions against him were fabricated. The school had failed to produce evidence or to disclose relevant documents, had deceived the ET, and had committed perjury, falsified attendance records and engaged in other criminal activity.

As for the ET, they had not recorded all the evidence in their judgment, had reached unreasonable conclusions unsupported by evidence, had wrongly admitted late evidence from the school, and had failed to apply the procedure and the law. His case, which he wishes to refer to the International Court of Justice at the Hague, had been dealt with by a mediocre judiciary which has protected the school in a manner which he alleged displayed racial bias leading him to write recently to the Regional Employment Judge and to the Office of Judicial Complaints.

These are serious criticisms mainly directed at the findings of the ET on contested issues of fact decided against Dr Forson. As has been explained to him the ET is the fact finding body and their conclusions will not be disturbed on appeal, unless there has been an error of law in their judgment. An error of law involves a mis-interpretation or misapplication of the law, or arriving at a perverse decision, such as a finding for which there is no evidence, or a decision which is plainly wrong on the evidential and legal materials before the ET.

I am afraid that Dr Forson will be disappointed to learn that I am unable to find any error of law in the decision of the ET, despite his many criticisms, which are either directed at the findings of facts and the conclusions drawn from those facts or are generalised and unsubstantiated complaints about the conduct of the school, its pupils and personnel and the performance of the legal system and its personnel. It is clear from Dr Forson’s forceful arguments that he is very aggrieved and upset about what has happened over the last 2 years and its effect on his career, but those grievances do not form any legal basis for a successful appeal to this court. I was sorry to hear of his work- related health problems including stress, anxiety, depression and insomnia, and his matrimonial problems, but they are not grounds for an appeal confined to questions of law.

The application for permission to appeal is refused as having no real prospect of success in the absence of a reasonably arguable error of law by the ET.