United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N TSE (of Counsel) Instructed by: Mr S Spencer Lloyd & Associates Solicitors 48 Onslow Gardens London SW7 3PY


 


JUDGE PETER CLARK:

1. The appellant, Mrs Alghafar, is of Iraqi national origin. She has worked for the BBC in its Arabic service as a freelancer since 1979.
2. She presented three separate Originating Applications to the Employment Tribunal on 22nd July 1997, 18th December 1997 and 8th April 1998. Those applications contained complaints of direct and indirect discrimination and victimisation on the grounds both of her race and sex.
3. The complaints were resisted and were consolidated. They came on for a substantive hearing before an Employment Tribunal sitting at London (North) under the chairmanship of Mr D H Roose on 30th June and 1st, 2nd and 3rd July 1998 and after a break on 28th and 29th September 1998. By a reserved decision with extended reasons promulgated on 21st October 1998 all complaints were dismissed ["the substantive decision"].
4. Meanwhile, by a letter of 1st October 1998 the appellant, through her then solicitors, Russell Jones & Walker, acting on the advice of Counsel then appearing for the appellant, Ms Robertson, a copy of whose written advice was enclosed with that letter, purported to apply for a review of an interlocutory order made by the Employment Tribunal on 28th September 1998, excluding certain written statistical evidence on which the appellant then wished to rely. That application for review was dismissed by a decision of the Chairman alone promulgated with reasons on 11th November 1998 ["the review decision"].
5. At this preliminary hearing we have before us an appeal by the appellant against both the substantive decision and the review decision. There was originally one Notice of Appeal dated 1st December 1998 encompassing both appeals, although two appeal numbers: EAT/108/99 and EAT/109/99 have been assigned to the cases. That Notice was signed by Counsel, J Davies, who did not appear below. That Notice has since been amended in draft by Mr Tse, the appellant's third Counsel who appears before us today. We granted leave to amend the Notice and proceed today on the basis of that amended Notice, supplemented by Mr Tse's skeleton argument and sustained oral submissions.

The review decision

6. We can dispose of the appeal against the review decision quite shortly. The Employment Tribunal's power of review under Rule 11 of the Employment Tribunal Rules of Procedure, to be found in Schedule 1 to the Employment Tribunals (Constitution etc.) Regulations 1993, is limited to decisions of Employment Tribunals as defined in Regulation 2(2) of the Regulations. The order in respect of which review was sought was an interlocutory order, as Mr Tse accepts, not falling within that definition. Accordingly the application for review was misconceived and, it follows the appeal against the Chairman's refusal to order a review is equally misconceived.
7. However, that interlocutory order is referred to in the substantive decision reasons and is, we think, properly the subject of the appeal against the substantive decision.

The substantive decision

8. It is unnecessary to rehearse in this judgment the Employment Tribunal's findings of fact. Suffice it to say that each item of complaint raised by the appellant was roundly rejected by the Employment Tribunal, and insofar as there was a conflict of evidence between the appellant and her witnesses on the one hand and those called to give evidence on behalf of the respondent on the other, the tribunal preferred the latter's evidence.
9. Further, it is well established that on any further appeal the question for the Court of Appeal is not whether our decision is correct, but whether the Employment Tribunal was correct is law. See Hennessey v Craigmyle & Co Ltd [1986] ICR 461, 470C-E per Sir John Donaldson MR.
10. In these circumstances we turn to the points raised in the appeal, conscious that our powers to interfere with Employment Tribunal decisions are limited to correcting errors of law. We shall deal with them under various heads, not necessarily in the order raised by Mr Tse.

(1) Findings of fact

It is not for us to make findings of fact. That falls task falls solely within the province of the Employment Tribunal. However, Mr Tse submits that the Employment Tribunal failed to make necessary findings of fact or made unsupported findings contrary to the evidence, in particular:

(a) there was no finding as to the appellant's nationality. That is plainly absurd. The tribunal found at paragraph 2 that the appellant was born in Iraq. We are satisfied that the case proceeded on the basis of a comparison between her Iraqi nationality and those people of Egyptian or Palestinian nationality.

(b) there was no finding as to her employment status with the BBC, or, insofar as she was found to be a casual or freelance worker that was contrary to the evidence. It is clear to us that internally the BBC draw a distinction between casual and permanent staff. The appellant was treated as a casual. She many have been an employee for the purposes of National Insurance and tax and indeed for protection under the sex and race discrimination legislation, but the tribunal were satisfied that she was not a permanent member of staff for the purpose of her eligibility internally for job applications about which she complained or being granted access to the BBC's Women's Development Initiative (see reasons paragraph 8) or to the grievance procedure applied only to permanent staff. Again, we see no arguable point of law here raised.

(2) Excluded evidence

It seems that the appellant adduced no statistical evidence as to disproportionate impact during the first four days of hearing. By the end of that period her case was closed. No such evidence was served after 3rd July on the BBC until the day before the resumed hearing on 28th September. They objected to having to deal with such evidence at that late stage, an order having been made for service of further material not less than seven days before the resumed hearing at the close of play on 3rd July. The tribunal excluded that evidence. They were entitled to do so in our judgment within the proper exercise of their discretion, looking at the reasons given at paragraph 1 of the substantive decision reasons and in the review decision reasons of the Chairman.

(3) Preferring the respondent's witnesses

This is dealt with at paragraph 18 of the reasons. Mr Tse complains that reference to the appellant's witnesses having themselves brought their own cases against the BBC was an irrelevant factor. We disagree. It merely indicates a prospective lack of independence as witnesses. They had an interest in the outcome. That is perhaps a glimpse of the obvious, and not a ground for interfering with the tribunal's fact finding decisions.

(4) Indirect discrimination

Mr Tse rightly submits that no intention on the part of the respondent is necessary for a finding of indirect discrimination. However, we have concluded that the tribunal's reference to intention at paragraph 16 of their reasons is an alternative finding. Even if that amounts to an error of law, the question for us is whether the tribunal's finding of no indirect discrimination on other grounds is plainly and unarguably right. See Hellyer Brothers v Mcleod [1987] ICR 526.

In our view the tribunal was entitled to conclude, as it did, on the evidence before it and the facts as found, that the appellant had failed to make out a case of disproportionate impact or less favourable treatment either on the grounds of race or sex, so as to establish her case on indirect discrimination. Even had she done so, the tribunal permissibly found that the respondent had justified their treatment of her on the basis that they were entitled to restrict access to permanent members of staff. That is a finding with which we cannot properly interfere.

(5) No specific submission is made in relation to the tribunal's self-direction as to direct discrimination over and above those to which we have earlier referred.

(6) As to victimisation, it is correct to say that the tribunal directed themselves as to the need for conscious motivation on the part of the respondent in relation to victimisation, in line with the then Court of Appeal approach in Nagarajan v London Regional Transport, subsequently disapproved by the House of Lords [1999] IRLR 572. However, Mr Tse accepts that there is no freestanding appeal on victimisation. Having failed on his earlier grounds of appeal, this part of the tribunal's findings cannot separately be interfered with.

11. In all the circumstances we have concluded, despite the very full argument from Mr Tse, that this appeal raises no arguable point of law to go forward to a full appeal hearing and accordingly it must be dismissed at this stage.