England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Thursday, 20th June 2002

1. LORD JUSTICE MUMMERY: This is the adjourned hearing of an application for permission to appeal. The application is made by the appellant in person. He wishes to appeal against the decision of the Employment Appeal Tribunal, which was reserved after a three day hearing and delivered on behalf of the Tribunal by Hooper J on 5th June 2001. The Employment Appeal Tribunal, for reasons stated in Hooper J's judgment, dismissed the appellant's appeal against the decision of the Employment Tribunal after a seven day hearing in the Employment Tribunal. Extended reasons were sent to the parties on 27th July 1999 dismissing the appellant's claims for race discrimination and victimisation alleged to have taken place in the period between May 1997 and August 1998.
2. On the appeal to the Employment Appeal Tribunal from that decision, there was a preliminary hearing before Charles J on 12th January 2000. He said in paragraph 12 of his judgment, having dealt with the various grounds of appeal and allowed some of them to proceed:

"We also made the point to the appellant that nothing we have said or have decided should be treated as an effective argument against an order for costs being made against him if the Tribunal that hears the full appeal concludes (with the benefit of a closer analysis of the documents and submissions from the respondent) that the appellant has acted unreasonably in making points on this appeal as to the underlying facts of this case."

3. I mention that because part of the order of the Employment Appeal Tribunal on the full hearing that the appellant now seeks to appeal is an order for costs made against him on the dismissal of his appeal to the tune of 50 per cent of the respondent's costs, assessed, if not agreed, up to a maximum of £9,250. That order was made because, in the view of the Appeal Tribunal, the appeal had no merit and should never have been brought, even though it was accepted by the Appeal Tribunal that the appellant had conducted the appeal in person properly and without going outside the grounds of appeal.
4. When the application for permission first came before the Court of Appeal, there was an adjournment and subsequently a hearing before Peter Gibson LJ. On that hearing serious allegations were made by the appellant about the conduct of the three day appeal hearing in the Employment Appeal Tribunal. There were allegations of bias directed to the presiding judge, Hooper J. Peter Gibson LJ, for understandable reasons, decided that these allegations should be established in an affidavit. He directed the appellant to file with the Civil Appeals Office an affidavit setting out his complaints of bias against the Employment Appeal Tribunal, supported with evidence if appropriate. He was given one month in which to do that. The matter was adjourned on the basis that, on receipt of the affidavit, the court would consider the matter on the papers; that is, without a further hearing to deal with that, and give further directions as to the hearing of the application. The direction given on receipt of the appellant's affidavit was that the respondent BBC (there are two individual respondents, Mr McLennan and Mr Muawad) should be present at the resumed hearing of the application for permission in order to make submissions to assist the court on the question of the bias allegations. It was in those circumstances, first, that an affidavit was sworn by a member of the BBC Litigation Department, who had been present during the hearing of the appeal (that was sworn on 30th May with four exhibits), and, secondly, that explains the presence in court today of Mr. John Bowers QC representing the respondents. He submitted in advance of the hearing a short skeleton argument confined to the bias issue. Attached to it is a chronology explaining the events leading up to the direction for the BBC to be allowed to attend.
5. Mr. Bowers has made short submissions on the bias point but I indicated to him that, though he was willing to assist, I did not require him to make submissions on the merits of the application for permission to appeal in relation to the other grounds advanced by the appellant. As I understood him, the appellant would have objected to the matter being turned into a full inter partes hearing on his application.
6. On his application the appellant has handed in this morning a very helpful document headed "The main issues for this appeal". He has taken me through the important parts of that document, which set out a summary of the grounds of his application. I have also read other documents submitted by the appellant at earlier stages, the principal one being the grounds of appeal and the initial skeleton argument, a 21 page document received in the Civil Appeals Office on 15th August 2001. The other document which deals with the appellant's submissions is a one page document with an attachment, headed "General notes for Court of Appeal preliminary hearing on application to appeal Hooper J's judgment". I should also mention that the notice of appeal submitted by the appellant summarizes the grounds for appeal in the following comprehensive statement: "Perversity, errors of law, misdirections, misapplication of law and authorities. The judge, Hooper J, treated the applicant with contempt, shouting at him and preventing him from presenting his case and oppressive costs order."
7. After that introduction I should refer briefly to the basis on which the complaint of race discrimination and victimisation was first brought to the Employment Tribunal. It arose out of the appellant's employment as a producer by the BBC in the Arabic Service, the head of which is Mr. McLennan, the third respondent. The appellant had a fixed term contract with the BBC starting in 1991 for two years, with subsequent extensions. Things seem to have started to go wrong when, in May 1997, the appellant was moved from the features and music part of the Service to the current affairs part. Mr. Muawad, the second respondent, became responsible for the appellant as line manager. The appellant, who is of Iraqi origin, presented his application to the Employment Tribunal on 10th August 1998, complaining of racial discrimination, victimisation and "stifling career". He said, giving the relevant dates as May, June and July 1998 as follows:

"I have been discriminated against due to my national origin and victimised due to my national origin and due to my IT case."

8. He gives the number of an earlier set of proceedings, which he had brought against the BBC for race discrimination arising out of a complaint that he had not been offered full time pensionable employment on the expiration of the fixed term contract. In those proceedings he had succeeded in the Employment Tribunal, but, on appeal to the Employment Appeal Tribunal, the appeal by the BBC was allowed on 3rd February 2000. The matter was remitted to a fresh tribunal for rehearing. I am not going into the details of that case or into the details of any other cases which the appellant may have brought against the BBC, either cases which have already been disposed of or others which are current. All I say about the earlier proceedings is that I have been informed that the rehearing before a fresh tribunal is due to start next week. The appellant specifically asked that, in the determination of his application, I should concern myself only with this case. I accept that that is a legitimate approach to this application, looking at the provisions of the Civil Procedure Rules 1998. I have to ask myself, under 52.3.6, whether I consider that the appeal which the appellant proposes to pursue has a real prospect of success or whether there is some other compelling reason why the appeal should be heard. In deciding that question I also have to bear in mind that appeals to this court from the decisions given in the employment tribunal are confined, as they are in the case of appeals to the employment appeal tribunal, to questions of law arising in the proceedings in the employment tribunal. I must look not at decisions in other cases that these parties may be involved in or in any great detail to the decision of the Employment Appeal Tribunal. As I pointed out to the appellant on the hearing this morning, what I must focus on are the extended reasons of the Employment Tribunal, which were entered on the Register on 27th July 1999.
9. As far as the complaints about the hearing in the Employment Appeal Tribunal are concerned, there is a dispute about what actually happened. The appellant makes various allegations. The affidavit of the solicitor with the BBC Litigation Department, Miss Janet Young, does not accord with the allegations made by the appellant. I do not have to resolve the issue of what happened during the Employment Appeal Tribunal hearing, for this reason. I have to consider this question: is there a question of law arising from the decision of the Employment Tribunal? The allegations of bias and unjudicial conduct on the part of Hooper J are irrelevant to that question. Once the allegations have been made it was right that they should be subject to the requirement of an affidavit and that there should be some consideration of them, but they do not come into the decision which I am about to make on this application. I say no more about them.
10. Looking at the decision of the Employment Tribunal, it will be seen that the unanimous decision was that the respondent, the BBC, and the two individuals I have named, did not unlawfully discriminate against the appellant on racial grounds, nor did they victimize him. The Tribunal then dealt with the various incidents and events, which the appellant complained had been instances of race discrimination or victimisation. I shall come to the details of those in a moment. What the tribunal said in paragraph 18, having summarised their findings of fact, was this:

"From the above findings of fact we draw no inference that the respondents or any of them unlawfully discriminated against the applicant on racial grounds nor did they victimise him. Although the respondents had occasion during the course of the hearing to supplement an answer given on the Race Relations Questionnaire we draw no inference on that account nor from their failure to respond to other questions that the applicant believed to be relevant."

11. They then stated the relevant legal principles and expressed their conclusion in the following words:

"We take the view that the applicant has failed to prove his case on the balance of probabilities. Flushed by his earlier success he has been over-hasty in bringing this complaint. It has been an exercise which has merely highlighted that there is still more repair work to be done in mending the relationship between the applicant and the second respondent. As far as the second and third respondents are concerned, we do not accept that they have acted improperly in any way towards the applicant let alone treated him less favourably on racial grounds."

12. I now come to the detailed points which the appellant has made in relation to that decision. I shall refer to the particular treatment of the particular headings of the incident. In general terms, the appellant divided his submissions into two parts: first, those dealing with bias and, second, those dealing with errors of law. For the reasons I have already given, I say nothing more about the issue of bias or about what I take to be the alternative way of putting the same point that is described as abuse and denial of human rights in the conduct of the hearing.
13. I focus, therefore, on errors of law. They are summarised under that heading as follows: (1) not making the required comparisons or refer to the comparators relevant to the pleaded issues; (2) failing to set out and apply the required and correct tests and principles of law on direct discrimination and/or victimisation; (3) making a perverse inference on duty trips, special training, objectives and bonuses; (4) failing the Meek test on reasoning and reasons in relation to its findings; (5) the lack of reasons on preferring the evidence of the respondents, and (6) misdirecting themselves and thus misapplying the legal tests and principles in relation to the credibility of witnesses, concealment of documents and incorrect or evasive responses. There then follow quite detailed points which have been made by the appellant about the hearing in the Employment Appeal Tribunal. For reasons that I have already given, I am not going to say any more about these.
14. The critical points made by the appellant are in the section of his main issues document on the judgment where he refers again, in a summary form, to his complaints about what he describes as points of law relating to direct discrimination and victimisation. He mentions the issue of comparators, the lack of reasoning and the misdirections given in relation to particular complaints, such as duty trips, objectives and training. There was a general criticism that the Employment Appeal Tribunal had not, in dismissing the appeal, provided explanations on points of law which were raised and found arguable at the preliminary hearing. That is another area in which I do not intend to enter in any detail for the reasons that I have given. What has to be looked at is not what the Employment Appeal Tribunal said or failed to do but what the Employment Tribunal did.
15. Looking at the issues on the appellant's IT1, as amplified in further documents and on the grounds of resistance submitted by the respondents, it seems to me that the allegations made were determined in the following way. There was a complaint initially made by the appellant of a failure to promote him or to appoint him to membership of committees but that was not pursued, certainly not on the appeal to the Appeal Tribunal or to this court. As to the second allegation of "acting up", the comparator was Mr. Fahmi, who is of Egyptian origin, and the main complaint of the appellant was that he was "acting up" as a senior producer but the appellant was not accorded the same status. As far as the Employment Tribunal was concerned, an adequate explanation had been given for the difference in treatment between Mr. Fahmi and the appellant. Thirdly, and related to that, was an allegation of a failure to pay a bonus to the appellant for "acting up", which was found by the Employment Tribunal to fail for lack of evidence. Fourthly, there was a complaint that the respondents had failed to supply the appellant with a bleeper during a period in February 1998 when there was a crisis with Iraq. The Tribunal made a finding of fact against the complaint. The Employment Appeal Tribunal found that there was no perversity in respect of that finding. Fifthly, there was a complaint in relation to the denial to the appellant of business duty trips, sometimes described as reporting trips. The Tribunal rejected that complaint and the Appeal Tribunal found that, although this could have been subject to fuller reasons, the Employment Tribunal could come to a decision which was reasonable and one that it was entitled to come to on the evidence. Sixthly, there were complaints in relation to discrimination in matters of a professional and technical training on which the Employment Tribunal found as a fact that the treatment had not been less favourable than that accorded to the comparator.
16. As to the complaints in relation to appraisal, which formed the seventh head, the Tribunal found that there was no discrimination and that the objectives which were utilized were capable of objective measurement. On an eighth point, which covered matters such as tampering with documents and alleged concealment, the Employment Tribunal found that those matters were not proved on the evidence. Ninthly, on the matter of credibility, on which the appellant submitted that no reasons had been given and that he was entitled to have reasons as to why it was found that the respondents and their witnesses were more credible than he was, the Employment Tribunal expressed a clear view preferring the evidence of the respondents, and the conclusion of the Appeal Tribunal was that on a question of this type the Employment Tribunal was the body that had the opportunity to form the view, having seen and heard the witnesses. They concluded that there was ample opportunity to justify the view which the Employment Tribunal had formed. Finally, the eleventh point which has given rise to submissions, is that the reasons registered on 27th July 1999 are simply not in sufficient detail for the appellant to know why he had lost the case.
17. I fully understand how the appellant has come to this court for the purpose of seeking what he has described a number of times as "justice". He has emphasised, as I fully appreciate, the role of the courts in dispensing justice, particularly to deal with what he has referred to and others have referred to as the evils of discrimination on grounds of race and of victimisation. As he was entitled to, the appellant brought the matters before the Employment Tribunal where they were thoroughly investigated over a hearing lasting seven days, and the Tribunal did what tribunals are established to do, and that is to make a decision on what are the facts of the case. They are the only body in the system which hears the evidence and are able to make that decision. That is the reason why there is no appeal from their decision to the Employment Appeal Tribunal or to this court on questions of fact. Questions of fact can only properly be decided by hearing people give their account of what happened and hearing them tested on it by cross-examination and by close examination of documentary material in the light of that evidence. In order to succeed in this appeal the appellant must look to questions of law and not seek to re-open the findings of fact. Most of the submissions which have been made by the appellant are really taking issue with the findings of fact in the Employment Tribunal that were adverse to him.
18. Insofar as he was making submissions of law, I do not think that they have any real prospect of success. There is no case in my view for saying that any of the findings of fact by the Tribunal were perverse. Insofar as the depth and detail of reasoning is concerned, I am satisfied that the well known test laid down in the case of Meek is set out. Like the appeal tribunal, I am of of the view that there are parts of this decision which have been briefly expressed and could have been dealt with in greater detail. But that does not mean that there is insufficient detail in the decision for the appellant to understand the basis on which he failed in his complaint. I take one example, the credibility of witnesses. As I have indicated, the applicant complains that he has not been given any reasons for the view of the tribunal that they preferred the evidence of the respondents and their witnesses. That is the sort of point on which it is not usually necessary to put forward any detailed written explanation, since that kind of conclusion is based on the opportunity that the tribunal has, particularly over a hearing lasting a number of days, to form its views about whose evidence is more reliable. I cannot find any error of law in the decision of the Tribunal in relation to the question of the comparators. It was adequately dealt with. In my view, the Tribunal were entitled to refuse to draw the inference, in relation to the detailed complaints which I have listed, that the treatment of the applicant was on racial grounds, or in some of the instances I have indicated were not even instances of less favourable treatment.
19. I know that the applicant will be disappointed to learn of my view that this appeal has no real prospect of success. He feels deeply in the justice of his case. I have to decide, not simply whether his feelings of injustice are genuine, but whether they have any solid legal basis. In my view, they do not. Though he may feel aggrieved, I am satisfied that he was given a fair hearing and a sound legal decision by the Employment Tribunal. I have explained to the applicant that I would not be helping him by giving him permission to appeal because of his depth of feeling about this case when it had no real prospect of success, because, if the appeal failed, as I think it would, he would be no further forward in his pursuit of what he sees as the just result, and in fact is likely to have an order for costs made against him in addition to the costs already made in the Employment Appeal Tribunal. I mention that because the applicant is appealing against the order for costs in the Employment Tribunal as an oppressive one. It is certainly not a common order to make. But, in view of the applicant's comprehensive failure in his appeal in the Employment Appeal Tribunal, and of the remarks which have been made by Charles J at the preliminary hearing, I am satisfied that the costs order was one which the Employment Appeal Tribunal was entitled to make in the exercise of its discretion, and that there is therefore no reasonable ground, such as error of principle or plain wrongness, on which the exercise of the discretion on costs could be successfully challenged on an appeal to this court.
20. For those reasons I conclude that the appeal has no real prospect of success and that there is no other compelling reason for granting permission. I therefore refuse the application.
Order: Application refused with costs assessed in the sum of £800.