England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 7th February 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Jamil Elabed in person. He wishes to appeal against two decisions of the Employment Appeal Tribunal given after hearings on 5th July 2001 and resulting in judgments given on behalf of the Tribunal by Hooper J. Copies of those judgments were sent to the parties on 5th September. In one case the Appeal Tribunal dismissed an appeal by Mr Elabed against the decision of the Employment Tribunal which dismissed his applications for race discrimination. In the other appeal Mr Elabed's attempts to appeal against the refusal of the Employment Tribunal to review their earlier decision was also dismissed.
2. The background to the proceedings is that Mr Elabed, who is of Syrian origin, was employed by the BBC Arabic Service under a two year fixed term contract which expired on 4th July 1996 and was not renewed. The circumstances in which the non-renewal occurred, and the circumstances of unsuccessful applications which Mr Elabed made for posts in the BBC Arabic Service in July 1996, and again in May 1997, led him to bring proceedings in the Employment Tribunal claiming that there had been race discrimination in the conduct of the BBC Arabic Service. That discrimination was alleged to manifest itself in the non-renewal of his fixed term contract and in the rejection of his later applications for employment.
3. The Employment Tribunal heard these applications in July 1998. Mr Elabed conducted his case in person. The Tribunal gave their extended reasons to the parties on 11th September 1998 in support of the unanimous decision that the complaints of race discrimination failed and should be dismissed.
4. In a critical part of the decision the Tribunal, after summarising the relevant provisions of the Race Relations Act 1976 and the relevant authorities being decisions either of this court or of the House of Lords, said, and I quote from paragraph 27:

"The Tribunal is satisfied that the Respondents would have dealt with any other person of whatever race or gender and who presented the same difficulties as the Applicant, in exactly the same way and therefore the Applicant was not subjected to less favourable treatment. The reasons expressed by Mr McMellan in his letter of 26 January 1996 for not renewing the Applicant's fixed term contract of employment are accepted by the Tribunal as the true reasons for not doing so. Further the Tribunal is equally satisfied that when considering the Applicant's employment applications in 1996 and 1997 the Respondents were entitled to have regard to their previous experience with the Applicant and having done so to reject his applications. To do so was not to discriminate against the Applicant or to treat him less favourably by reason of his race but was to adopt a pragmatic realistic and reasonable approach which any reasonable employer given the same circumstances would have done. The Tribunal has unanimously concluded that there are no inferences that can be drawn that there was race based discrimination."

5. That is a summary of the reasons why the Tribunal rejected the substance of Mr Elabed's case that he, as a Syrian, had been discriminated against in favour of Egyptians and had therefore been treated less favourably on racial grounds.
6. That decision was followed by an unsuccessful appeal to the Employment Appeal Tribunal and was also followed by further hearings in the Employment Tribunal in January 2000. The decision of the Tribunal at the hearing in January 2000 was that the claim of race discrimination should be dismissed. That was against Mr McMellan and Mr Anwar, as well as the BBC Arabic Service.
7. The Tribunal referred to the previous history of the dispute between Mr Elabed and the BBC Arabic Service. In paragraph 38 of the extended reasons the Tribunal, after a further review of the relevant legal principles, stated:

"The reason for the Applicant's non selection in the case that is before us was exactly the same as the reason why the Applicant was not selected for jobs that he had applied for previously as decided at the previous Tribunal hearing which concluded on the facts that were before it which had been presented over a period of 12 days that the reason that the Applicant was not selected was not because of his race. We similarly therefore find that this claim is dismissed as the Applicant has failed to show that the reason was on racial grounds."

8. Mr Elabed applied for a review of the decision of the Employment Tribunal. That was refused. The reasons for the refusal were stated in a decision sent to the parties on 4th February 2000. The decision was that in exercise of the power conferred under rule 11(6) of the Rules of Procedure set out in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, the application for a review was refused on the grounds that it had no reasonable prospect of success.
9. The decision which Mr Elabed sought to review was that sent to the parties on 11th September 1998. Having been unsuccessful before the Employment Tribunal both on his applications and on his applications for review, Mr Elabed then appealed to the Employment Appeal Tribunal. That hearing took place on 5th July 2001. In the appeal against the dismissal of the applications Hooper J in his judgment, which was given at a preliminary hearing, said that the Tribunal was unanimously of the view that there were no arguable grounds which would justify the Tribunal sending the matter forward for hearing at a Full Tribunal.
10. The Appeal Tribunal agreed that there were some errors in the Employment Tribunal decision, but there was no arguable point of law which could be the subject of a full appeal. The Appeal Tribunal agreed with the Employment Tribunal that it was not a case of discrimination on grounds of race and that the sole reason why the BBC Arabic Service had acted as they did was nothing to do with race, but to do with problems and difficulties that there had been with Mr Elabed while he was working during his full-time fixed term contract.
11. As regards the appeal against the decision of the Employment Tribunal refusing a review, the Appeal Tribunal stated that the proper question for them to ask on the appeal was whether, on the material available to the Tribunal, the refusal of the review on the grounds that it had no reasonable prospect of success was a conclusion that it could properly have reached. The Appeal Tribunal concluded in paragraph 43 of Hooper J's judgment as follows:

"Having regard to all the material which we have set out, we have no doubt that the conclusions reached by the Tribunal... could not possibly be described as perverse and in those circumstances this appeal fails."

12. On his appeal to this court Mr Elabed summarises his points in a number of documents, which are most conveniently set out in summary form in his grounds of appeal. He has the following grounds of appeal from the decisions of the Appeal Tribunal:

"1- leaves me forced to perform work at the age of 55. I am not prepared/equipped to do, if at all.

2- [the Employment Tribunal] ignored my essential request for Expert Witness, the only procedure by which my hearing could lawfully be conducted (like providing an interpreter to a non-English speaking appellant.)

3- [the Tribunal] accepted all the respondent's allegations EVEN without any evidence to support any of them.

4- the Chairman misdirected himself when he attributed a 'professional' stance to the respondent falsely.

5- [the Tribunal] ignored the basic/initial act of discrimination/less favourable treatment itself by the respondent.

6- No factual investigation was undertaken."

13. Mr Elabed makes it clear that what he wishes to be able to achieve is to be allowed to return to his job which he was brought from overseas to do with his family and/or to be recompensed for the loss or injuries caused. In his submissions this morning Mr Elabed said that he is a highly skilled professional, who has been recognised as a very good creative translator and the effect of what the BBC Arabic Services have done to him is that he has been left unemployed and that he and his family have suffered in consequence.
14. He repeats the case, which he attempted to make out before the Tribunal, that he has been treated less favourably than Egyptians who have less linguistic skills. In fact he says that they are mediocre, and that this constitutes discrimination against him on racial grounds. He has referred specifically to a number of documents, including witness statements included in the bundle. Particularly important is the witness statement of a senior producer with the Arabic Service, Said Al-Sheikh, dated 27th July 1998, stating a number of positive points about Mr Elabed as a person and as a colleague referring to his skills. He says it never happened when he was in charge that Mr Elabed failed to put his programme out on time and, although he made some grammar and translation mistakes, he spent a lot of time preparing the running order of his programme. He said he had no problem with him.
15. Mr Elabed also made a number of other points when I explained to him the restrictive role of this court in employment disputes, including discrimination at work. Appeals can only be brought to this court if there is a real prospect of them succeeding. Permission is required. Appeals can only be brought if there is an error of law in the decision of the Employment Tribunal. There can be no appeal against the Tribunal's assessment of the credibility of the witnesses and there can be no appeal on questions of fact. Appeals of law are on such matters as misinterpretation of the relevant legislation or failure to apply the relevant statutory provisions or legal principles stated by the courts.
16. When I made this point Mr Elabed naturally responded that he was a lay person who does not understand the law, and that he had come unprepared to deal with legal points. He did, however, affirm his faith in British justice and said he had come to this country in order to work for the BBC. He emphasised the high level of his skills.
17. I have to decide this matter, however, on a question of law. I quite understand the effect that this has had on Mr Elabed and his family. The point, however, is whether there was an error of law in the decision of the Employment Tribunal concluding that there was no less favourable treatment of Mr Elabed on racial grounds. They found that that case was not proved. They accepted the evidence from the BBC Arabic Service that there were other non-racial reasons for their decision both not to renew the fixed term contract and to reject the applications for employment, which Mr Elabed later submitted.
18. It seems to me that the Tribunal referred to the correct provisions of the Race Relations Act 1976 and to the relevant authorities as to how claims under those provisions have to be proved in the Tribunals and how they have to be adjudicated upon. It does not seem to me that there has been any error of law in the decision of the Tribunals rejecting the claims for discrimination, or in their decision to refuse to review the earlier decisions made by them against Mr Elabed.
19. I therefore agree with the judgments of Hooper J in the Appeal Tribunal which dismissed both appeals. I do not think that this appeal has any real prospect of success. I know that Mr Elabed will be disappointed to learn this, but I can assure him that I have reached this conclusion by careful consideration of the relevant law and have concluded that there is no error of law in the decisions which he seeks to appeal. For those reasons the application is refused.