United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BIRTLES (of Counsel) Messrs G Singh Solicitors 13 The Mall Ealing London W5 2PJ
For the Respondents	MR P GOULDING (of Counsel) Instructed by: Miss J Youngson Solicitor Litigation Department BBC White City 201 Wood Lane London W12 7TS


 


JUDGE WILKIE QC: This is an appeal by Mr Jamil Elabed against the decision of the Employment Tribunal at London (North) that his complaints of race discrimination against the British Broadcasting Corporation ['BBC'] failed and were dismissed. The hearing before the Employment Tribunal took place on 12 days between 13th and 31st July 1998. The decision, which runs to just over 16 pages, was dated 8th September and sent to the parties on 11th September 1998.

1. An appeal was lodged on 21st October 1998. That appeal came before the Employment Appeal Tribunal ['EAT'] on 23rd June 1999. On that occasion the EAT agreed that the matter should proceed to a full hearing on the limited basis of amended grounds of appeal which were then placed before the EAT by Jonathan Swift of Counsel, acting for Mr Elabed, under the ELAAS scheme. Those amended grounds of appeal asserted that the tribunal erred in law in failing to provide reasons or sufficient reasons for its decision in two particular ways. Firstly, that it failed to provide any reasons to reject the case put forward by the appellant, that the renewal by the respondent of the contracts of five Egyptian employees indicated that the appellant had been less favourably treated on grounds of his race in circumstances in which it had been alleged by the appellant that those employees had less experience than he, were less qualified than he, and had previously performed less well than he. Secondly, it failed to provide any reasons for its conclusion that no inference of discrimination could be drawn from the respondent's decision not to renew the appellant's contract of employment because of allegations concerning (a) his interpersonal skills, (b) his grammatical accuracy during broadcasting and (c) his translation skills in circumstances in which his case had been that the incidents with other employees referred to by the respondent had not indicated that there were any problems with his inter-personal skills; secondly that his grammatical accuracy was at least the equivalent of other employees whose contracts had been renewed; and thirdly, that his translation skills had also been at least equivalent of those other Egyptian employees whose contracts had been renewed.
2. Before us today, Mr Birtles of Counsel has represented the appellant. The respondent has been represented by Mr Goulding of Counsel, who represented them at the Employment Tribunal. We are greatly indebted to each of them for their very helpful skeleton arguments and their very able and helpful oral submissions this morning.
3. Mr Birtles has put forward, in support of his appeal, three propositions of law, each of them based on authority, with which Mr Goulding has not sought to quarrel. The first is that the tribunal had a duty to make clear findings on significant issues of fact. The authority for that was the case of Levy v Marrable & Co Ltd [1984] ICR 583. The second proposition was that the tribunal had a duty either to draw or declining to draw inferences, to make express findings of fact, or to indicate which witnesses' evidence was accepted. The authority for that proposition is British Gas plc v Sharma [1991] IRLR 101. Finally and, in our judgment, the most important submission was that the tribunal was under a duty to give sufficient reasons. The authority for that is the Court of Appeal decision in Meek v City of Birmingham District Council [1987] IRLR 250. As far as that last authority is concerned, reliance is placed on the compendium of statements of authority on the extent of the duty of the Employment Tribunal to provide reasons for their decision. In the judgment of the Court of Appeal, delivered by Bingham LJ with which Ralph Gibson LJ agreed as did the Master of the Rolls Sir John Donaldson, in enunciating the principle as follows, the decision:

"… must contain an outline of the story which has given raise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; …"

In that statement of principle Bingham LJ expressly stated that there was nothing inconsistent with previous authority and cited the judgment of Donaldson LJ, (as then was) in the case of UCATT v Brain [1981] IRLR 225 in which Donaldson LJ said as follows:

"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law … But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon on any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."

There were other citings of authority in that particular judgment. Each was said to be consistent with the above stated general approaches. We adopt those statements of principle as establishing the standard required of an Employment Tribunal in setting out the reasons for its decisions.

4. In this particular case the respondent had employed the appellant as a radio producer for the BBC Arabic Service. He was appointed as a result of a recruitment campaign in 1993 which had resulted in a total of 1,919 applications being received. After shortlisting and interview, six successful applicants were appointed, the appellant and five other applicants, each of whom was of Egyptian origin. Each of the six successful applicants was offered and accepted a two year fixed term contract which was the normal BBC procedure.
5. The first complaint of race discrimination related to the respondent's decision not to renew his fixed term contract of employment which, in the end, expired on 4th July 1996. His second and third complaints of race discrimination related to the subsequent rejection by the respondent of applications for further employment, one dated July 1996 the other dated May 1997.
6. In essence, each of the complaints rested upon the first in the sense that the respondent's reason for not considering him seriously for employment in the two applications derived essentially from their earlier decision not to renew his two year contract and the reasons they put forward for that decision.
7. The decision not to renew his contract was set out in a letter from the respondent dated 25th January 1996. The core of that decision was said to be the respondent's assessment of his work and its concerns about two key areas, interpersonal skills and microphone performance. Each of these areas was apparently the subject of extensive evidence and argument before the Employment Tribunal.
8. The Employment Tribunal structured its decision in the following way. Paragraph 1 recited briefly the nature of the three applications. Paragraphs 2 to 4 recorded the witnesses from whom evidence had been either heard or had been provided in written statements and identified the documents by reference to their bundles before the Employment Tribunal. Paragraph 5 was a short summary of the issues for decision but really amounted to little more than a repeat of what the applications were for. Paragraph 6 of the decision runs from pages 3 to page 9 of the decision and is subdivided into a series of headed subsections. The preamble to that paragraph reads as follows:

"Having heard and considered the evidence and having had regard to those documents to which the Tribunal has been referred and which are regarded as relevant the Tribunal has made the following findings of fact …"

Subparagraph C is headed "Matters Arising in the Course of the Applicant's Employment". Within that subparagraph, subparagraph (i) records what the tribunal found as to:

"a number of incidents which involved the Applicant and other employees and which related to the Applicant's inter-personal skills. …"

The tribunal recited the other individuals involved and the dates of those incidents. Two of them pre-dated March 1995, the date of an appraisal which had recorded some improvement in his inter-personal skills. At least five of the remaining six were dated after that appraisal between the months of March and August 1995. The decision does no more than list the individuals involved and the dates. Subparagraph (ii), however, reads as follows:

"Whilst employees from time to time may have been involved in disagreements with colleagues those encountered by the Respondents with regard to the Applicant were greater than with any other employee and were either caused or substantially contributed to by the Applicant."

This is a key subparagraph in the decision for the purpose of this appeal.

9. Mr Birtles says that either this is not a paragraph in which there is any statement of findings of fact or, alternatively, he says that if it does constitute findings of fact, it is so bare as to fall short even of the test which has be satisfied as identified in the case of Meek. In essence, his submission is that in order to pass the Meek test it is necessary for the tribunal in respect of each of the incidents referred to in subparagraph (i) to have made brief findings of fact to an extent of either attributing blame or blameworthy involvement of the appellant. In addition, there should have been some findings of fact in respect of this type of problem its existence or otherwise as far as the five comparators were concerned.
10. Mr Goulding on the other hands says that this does plainly constitute findings of fact as is manifest from the way in which is placed within the structure of paragraph 6. It is in itself indicative of a comparison being made as it places the problems of this sort as being greater for the respondents, as far as the appellant is concerned, than for any other employee. He says that to argue, as Mr Birtles argues, for an individual setting out of findings of fact on each particular incident, is calling upon precisely the kind of comprehensive and detailed analysis of the case in terms of fact, which Donaldson LJ indicated was unnecessary in the case of UCATT v Brain. He says that the decision does constitute a summary of the tribunal's basic factual conclusions.
11. In a paragraph which is numbered subparagraph (ix) within this same subsection of paragraph 6 the tribunal says as follows:

"The Applicant encountered problems with Arabic grammar and translation. The Respondents acknowledge that other employees also encountered Arabic grammar difficulties from time to tome, the significant difference between the Applicant and other employees being that the Applicant either was reluctant to accept or would not accept that errors were his responsibility whereas other employees recognised their errors when pointed out to them. With regard to translation the Respondents acknowledge that the Applicant's ability to translate from Arabic to English was of high standard but than when translating English to Arabic he fell below the standard required."

This too is a crucial subparagraph within this decision as it addresses the second of the two issues referred to in the respondent's letter giving their reasons for the non-renewal of his two-year contract.

12. Once again. Mr Birtles criticises this paragraph. First of all he says that it is at best ambiguous as to whether it does constitute findings of fact made by the Employment Tribunal or is simply their recital of what the respondent's view was on this issue. Secondly, he says that if it does constitute the tribunal's findings of fact it fails wholly to indicate to the appellant why he has lost in the context where he was putting forward a case that any inadequacies that he might have had were no worse than those of the five comparators, an issue that was rehearsed at considerable length before the tribunal.
13. Mr Goulding defends this paragraph. First of all he says that it is clear from its place within the structure of the decision and from the introductory words of paragraph 6, that this paragraph does constitute findings of fact by the tribunal rather than a rehearsal of what they found to be the respondent's view. With that contention, we agree. Secondly, he says that it is sufficient to enable the appellant to know what were the basic facts found by the tribunal which subsequently resulted in the reasoning leading to their rejection of his application. Not only does it address a second problem and a problem identified by the BBC as being operative in respect of their decision, but also it is full of the language of comparison, comparison of his abilities and his attitude towards any shortcomings as compared with other employees.
14. Those were the two crucial subparagraphs in the decision because they contain, certainly on one view, the tribunal's findings on matters of fact which informed both the respondent's decision not to renew the appellant's contract, and also this tribunal's decision that the non-renewal of the contract did not constitute racial discrimination.
15. In paragraph 26 of the decision the tribunal addressed itself to what it said were the relevant questions. The tribunal referred in that paragraph back to questions identified by Lord Browne-Wilkinson in the case of Glasgow City Council v Zafar [1998] ICR 120. Paragraph 26, so far as it is relevant, reads as follows:

"The Tribunal having asked itself the relevant questions identified by Lord Browne-Wilkinson (above) namely has the Applicant been subjected to less favourable treatment and if so was it on racial grounds has unanimously concluded that the Applicant was not subjected to racial discrimination by the Respondents whether in relation to the non renewal of the fixed term contract of employment and/or whether in relation to the decisions of 1996 and 1997 in connection with his job applications submitted in July 1996 and May 1997."

16. What Mr Goulding says is that that is a correct citation of the dual test identified by Lord Browne-Wilkinson and a single compendious indication of the tribunal's view.
17. In paragraph 27 the tribunal sets out its reasoning in support of the conclusion stated in paragraph 26. It says, inter alia, as follows:

"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 [McLellan] 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. …"

18. Mr Birtles has attacked the adequacy of this part of paragraph 27 as sufficient reasoning to back up the conclusion expressed in paragraph 26. In particular, he says that whereas in paragraph 26 a dual test has been cited, what this tribunal has done is simply run the two limbs of that test together in such a way as really to amount to little more than a restatement of the conclusion without any reasoning to support it.
19. What Mr Goulding says is that although it is economic in its language, it does set out the reasoning sufficient to enable the appellant to know why it is they rejected his complaint. In essence, what it is saying is that based on the findings of fact to which reference has already been made, the tribunal accepted the basis of the decision not to renew his contract and further reasoned on that basis that whatever the race or gender of the person in the position of the appellant, that is to say seeking renewal of the contract having presented the same management difficulties as the appellant, their conclusion was that the respondents would have treated that person in exactly the same way. Therefore, what the tribunal was saying was that there was no less favourable treatment based on their findings of fact and that accordingly, applying the Lord Browne-Wilkinson test and that reasoning to it, that supports the conclusion to which they unanimously came in paragraph 26.
20. In so far as the tribunal in paragraph 27 went on to consider the other two alleged instances of racial discrimination, the tribunal at the very end of the decision unanimously concluded that there were no inferences that could be drawn that there was race based discrimination. Essentially, the tribunal concluded that the respondents were entitled to act on their decision not to renew his contract in deciding not seriously to consider his job applications which came through immediately or relatively shortly after that decision. On that basis the tribunal accepted the explanation given by the respondent and accordingly was not prepared to draw any adverse inference from that subsequent conduct.
21. We remind ourselves that the Employment Tribunal system is not designed to be a Rolls Royce system. The tests to which we have referred, consistently expressed at Court of Appeal level, establish a modest hurdle for Employment Tribunals to surmount in giving their reasons for their decisions. It is sufficient for them to set out a summary of their basic factual conclusions. They are not required to include a comprehensive and detailed analysis of the case, either in terms of fact or law. The requirement is that the parties are entitled to be told why they have won or lost, sufficient for this Appeal Tribunal to identify whether any question of law arises.
22. This tribunal decision, after a 12 day hearing involving a number of witnesses on both sides, a large number documents and what we have been told was an extensive examination of the two key areas of dispute, does, it seems to us, err somewhat on the side of brevity and economy of language. However, we are perfectly satisfied that, both in its structure and in the way that it has addressed the obligation upon to set out its basic findings of fact, it has satisfied the test which the Court of Appeal has set for it, that is to say, it has set out sufficiently its basic findings of fact and it has set out not only its conclusion as a matter of law, but identified its reasoning so that any reasonable reader of it knows precisely why it was that this appellant lost his case. He lost his case because the tribunal accepted the bona fides of the reasons given by the respondent for not renewing his contract and subsequently not considering seriously his applications for employment. It did so, not simply by accepting what they said they believed, but by making their own independent findings of fact as to the nature and extent of the shortcomings which the appellant had demonstrated and by doing so in a way which demonstrated that they did have regard to the fact that they were conducting essentially a comparative exercise.
23. We conclude that this decision did pass muster in terms of the sufficiency of its reasoning. Accordingly, we dismiss this appeal.
24. On a request by Mr Birtles, Legal Aid taxation is granted.