United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS R DOWNING E.L.A.A.S.


 


MR JUSTICE MORISON (PRESIDENT): Mr Sheen wishes to appeal against a decision of an Industrial Tribunal held at Liverpool on 24th April 1996 to the effect that his complaint of discrimination on the grounds of sex was not within the tribunal's jurisdiction because there was no contract of employment involved. The Industrial Tribunals only have jurisdiction to determine matters of sex discrimination which occur in the employment field. By section 82 of that Act "employment" is defined to mean:

" "employment" means employment under a contract of service ... or a contract personally to execute work or labour, and related expressions shall be construed accordingly;"

The brief facts giving rise to the complaint may be stated in this way. On 12th December 1995, Mr Sheen's play "Thunder Bay", which was submitted to the BBC, was rejected. It was his view that effectively he has been "black-listed" by the BBC since about 1984, when he says, that in 1984 during the recording of his play "The Tallest Man", which was accepted by the BBC, he was sexually harassed by the producer of that play, who thereafter put on to the BBC's database comments about that play which influenced the BBC into rejecting the very many plays submitted by him thereafter. The evidence was that Mr Sheen, who is a professional playwright, has submitted 23 different plays between 1985 and 1995 on 49 occasions, culminating with the unsuccessful submission of "Thunder Bay".

It is important to note that the plays were not submitted on the basis that they had been commissioned by the BBC. We were told and accept, that when a playwright who has not been commissioned submits a play to the BBC, he will frequently, perhaps invariably, be asked by the BBC to make alterations to the script before they will accept it for broadcast. We are also told that after a script has been accepted for broadcast in that way, the writer is invariably expected to attend during the recording of the play to make any adjustments to the play which is required as a result of the actors going through their parts. We are told also, that when a play is commissioned by the BBC, similarly many alterations are called for before the play is in a form in which it can be broadcast; and again, the writer of a play which has been commissioned will attend the broadcasting of it to make similar adjustments that I have just referred to. To that extent, it is correct that Mr Sheen can point to substantial similarities between the two processes.

The Industrial Tribunal was of the view that there was no employment relationship in the case of a writer of a play who submitted it on a non-commissioned basis. Their reasoning is set out in paragraph 5.1 of the decision. It seems to us that the distinction between a commissioned work and a non-commissioned work was rightly drawn by the Industrial Tribunal for the purposes of the definition of employment in section 82 of the Act.

Despite the similarity in the processes to which I have referred, the fact is that a commissioned work takes place against the background of a contract to pay, whereas an uncommissioned work is tendered on the basis that, if accepted. then rights in the play will be transferred to the BBC of a sufficient kind to enable the BBC to broadcast it. It seems to us that there is in law a clear distinction between the two events. Even though, factually, similar steps may take place in both cases.

It seems to us that the Industrial Tribunal have asked themselves the correct question as to whether this amounted to a contract of employment, and have arrived at the correct conclusion on the material before them.

In addition, it is said that the BBC have discriminated against Mr Sheen in the arrangements they make for the purpose of determining who should be offered employment. His case on this basis is, that by entering into computer programme database, remarks which are set out in the tribunal's decision at page 19, and do not need to be repeated here, the BBC made it more difficult for Mr Sheen to become a commissioned writer, that is somebody who could be said to be asked to work under a contract of employment. By entering this material in the database, he would argue that the BBC have discriminated in the arrangements they made for the purposes of determining who should be offered employment.

It does seem to us that that submission is miles away from the facts of the case. The entries on which reliance is placed were made in March, August and December 1984. Since then the BBC have rejected 23 other plays submitted by him. And, as I understand it, the circumstances of rejection are themselves also recorded by the BBC. It seems to us most improbable that the BBC are rejecting his later submitted work on the basis of what was said in the computer database in 1984. It seems to us that any suggestion that the 1984 material constituted the arrangements they were making for the purposes of determining who should be offered employment is simply unsustainable as a matter of fact. But in any event, it seems to me, that it is simply too late to complain about those entries in 1984. There is a quite specific time limit, and I see no reason for believing that time should be extended to enable him to make that complaint.

Accordingly, whilst we fully understand Mr Sheen's anxiety in this case, we have to say that he has not persuaded us that it is remotely arguable that the circumstances giving rise to the rejection of his work, gives the Industrial Tribunal or this Employment Appeal Tribunal jurisdiction in the matter. We do not and cannot give advice to people who appear before us. But it may be that he would wish to consider whether, if the BBC are behaving in a discriminatory way, as to which we cannot reach a conclusion, it would be a matter falling within the jurisdiction of the County Court under different provisions of the Act.

We have to be satisfied that there is an arguable point of law. We regard the decision of the Industrial Tribunal Chairman as recorded in the extended reasons as being satisfactory, indeed, as being correct. Therefore, we must reject this appeal.