United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR BOWERS QC Instructed by: Ms J Youngson Litigation Department BBC White City 201 Wood Lane London W2 7TS
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by the respondents to a complaint brought by the applicant, Dr Jiad, before the London (North) Employment Tribunal. They are (1) BBC and (2) Mr McLellan, Director of the BBC's Arabic Service in which Dr Jiad was employed. The decision under appeal is that of a tribunal chaired by Mrs Enid Prevezer sitting on 27th-30th April 1998. By that decision, promulgated with extended reasons on 28th May 1998 and corrected by the Chairman by a Certificate dated 20th July 1998, the tribunal upheld in part Dr Jiad's complaints of both direct racial discrimination and victimisation. They made a recommendation that the respondents granted Dr Jiad a continuing contract of employment with effect from 1st January 1999 and, at an adjourned remedies hearing, awarded him compensation of £5,000.

Issues

1. Prior to the substantive hearing held on 27th-30th April 1998 the Regional Chairman held a directions hearing on 14th January 1998 at which she identified the issues for resolution at the substantive hearing. We see from paragraph 1 of the tribunal's extended reasons that they were as follows:

"(i) Whether the Applicant had been unlawfully discriminated against on racial grounds by act of harassment during his employment

(ii) whether the Applicant had been discriminated against on racial grounds by him not being offered full-time pensionable employment on the expiry of his fixed term contract and

(iii) whether the Applicant had been victimised by him not being offered full-time employment and also by demoting him from producer, presenter and editor to co-producer contrary to section 2 of the Race Relations Act."

2. We pause to observe that the holding of a directions hearing, at which among other things the issues to be tried in a case such as this, is entirely right. Indeed it is essential that, in the interests of both parties and the full tribunal hearing the substantive complaint, the issues are clear at the outset. That practice, involving good case management, was recommended by the former EAT President Morison J in two cases mentioned in and endorsed by the judgment of Mummery LJ in Marks and Spencer plc v Martins [1998] ICR 1005, 1022F-1023B.
3. In their decision, and for the reasons given, Mrs Prevezer's tribunal dismissed all Dr Jiad's complaints save for 2. They were:

(a) the direct discrimination claim identified as issue (ii) and

(b) that part of his victimisation complaint (issue iii), whereby he complained that the respondents below had victimised him by not offering him full-time employment (that is, a continuing contract, as opposed to renewal of a fixed-term contract) with effect from the expiry date of his then existing full-time contract, 31st December 1998. [The relevant complaints.]

4. For reasons, which appear later in this judgment there is no cross-appeal against those parts of Dr Jiad's complaint which were decided against him.

Background

5. Dr Jiad, who is of Iraqi national origin, commenced his service with the BBC World Service under the terms of a two-year fixed-term contract in 1991. He was then employed as a producer in Current Affairs. His application for a senior producer post in 1992 was unsuccessful.
6. His initial contract, due to expire on 17th May 1993, was extended until 31st December 1994.
7. In 1994 he accepted a three-year fixed-term contract from 1st January 1995 to 31st December 1997 (not 1998, as appears in paragraph 5(c) of the tribunal's reasons). Finally, he was offered a further one-year fixed-term contract to expire on 31st December 1998.
8. Throughout, he was employed as a producer.

Fixed Term Contracts

9. An issue arises in this appeal as to the tribunal's finding as to the relevant BBC policy on fixed-term contracts and their use.
10. At paragraph 5(d) of the reasons the tribunal accurately record that during negotiations with the unions in May 1997 it was agreed that:

"any member of staff who has been engaged on the same grade/job for five years on a series of fixed-term contracts and has one or more years work committed will be offered a continuing contract …"

11. However, there was an addendum to the document in which that statement of general BBC policy was set out, dated 2nd June 1997. It provided:

"Fixed Term Contracts

During negotiations with the trade unions on the new provisions for those on fixed term contracts, the BBC made it clear that World Service had their own arrangements for reviewing fixed term contracts and these provisions would be maintained alongside the new provisions for the other directorates."

12. In the course of argument before us we understood Dr Jiad to accept that the relevant provision for World Service staff, to be found in the bundle before us at s.4 page 236, was as follows:

"Length of Contract; varied section by section, but fixed term contracts will not normally be issued for period of employment of more than five years in total. Normally this will be a first contract of two years with a possible extension for a further three years. If it is intended to extend total employment beyond 5 years, this should normally be done by means of a continuing contract, unless either, it would not be practicable, or in the interests of the department to do so, or the person wishes to remain on fixed term contract."

13. That document, headed "Fixed Term Contract Policy in World Service", has a manuscript note at its head which reads:

"May 96. Agreed with Unions. Announced and implemented Sept/Oct 96."

14. The tribunal deals with the position of the World Service at paragraph 5(e) of their reasons thus:

"The Respondents argued that this general policy did not apply to the World Service but on looking at the documentation it is clear that in 1996 there had been negotiations with the unions by which it had been agreed that fixed term contracts should not be extended beyond 5 years. It was agreed that if the employee was not given a continuing contract then his contract would be terminated. It was clear that in relation to the World Service the terms of the policy were still being negotiated with the Unions and by 1997 this policy would apply to the World Service. It appears from the documentation that this policy was in fact implemented for the World Service in October 1996."

15. It is not for us to usurp the tribunal's fact-finding role. However, Mr Bowers QC addressed a powerful argument to us to the effect that the tribunal has simply misunderstood the effect of the documentary evidence which it accepted, in circumstances where there was no evidence to support the tribunal's finding at paragraph 5(e) of their reasons. Indeed, he submits that the finding that the general policy of offering a continuing contract after five years service on a series of fixed-term contracts applied to the World Service was contrary to the evidence which they accepted.

Staff Appraisal

16. The BBC carries out a system of annual appraisals on staff. Dr Jiad's appraisals up to 1996 were good. Problems arose during 1996 when he had not been selected for the post of senior producer. He believed that in being offered the opportunity to act up as a senior producer he had been offered that post substantively. The tribunal found that that was not the case. Nevertheless, Dr Jiad made complaint about his not being offered the post. Further, it was the evidence of Mr McLellan and other witnesses called on behalf of the BBC that he came into dispute with a colleague and that that was Dr Jiad's fault. The tribunal found that there was no evidence to substantiate that view.
17. In the event, his 1996 appraisal revealed considerably lower marks than hitherto for interpersonal skills and teamwork. However his 1997 appraisal, completed on 9th May 1997 by the same manager, Mr Hijjawi, who had reported on him in 1996, showed an improvement in those areas, so that his scores reverted to earlier levels.

Transfer

18. In May 1997 Mr McLellan decided to move Dr Jiad from question time to current affairs. The rationale for that move, advanced by the respondents, was that it would give Dr Jiad an opportunity to act up as senior producer and thus gain the necessary experience for him to achieve promotion. Dr Jiad claimed that the move was a demotion. The tribunal did not accept that it was.

Ethnic mix

19. People of various nationalities were employed in the World Service. Amongst the producers the majority (30%) were Egyptian. Other nationalities there represented include Palestinians, Jordanians and Saudi Arabians. The tribunal found that amongst his peer group Dr Jiad was the only Iraqi.

Grievance

20. Following his move to current affairs, by a memorandum to Mr McLellan dated 21st May and to Mr Dawes, the personnel manager dated 4th June 1997, Dr Jiad raised an internal grievance. He complained of less favourable treatment on racial grounds. Egyptian members of staff and their wives, he claimed, received preferential treatment. That grievance was not dealt with by management, the tribunal found, and they adopted a cavalier approach to his allegations of racial discrimination.

Continuing Contract

21. On 4th July 1997 a management meeting took place at which it was decided that of seven employees whose fixed-term contracts were coming up for expiry, five were to be put onto continuing contracts; the other two, including Dr Jiad, were to be offered further fixed-term contracts. Of those put onto continuing contracts two were Egyptian and one was Palestinian.
22. The reasons advanced by the respondents for not offering Dr Jiad a continuing contract were that management had doubts about his interpersonal skills, citing as examples various memoranda sent to colleagues by Dr Jiad and expressed in intemperate language; that he would not accept criticism and that they found him difficult to deal with and that he had a problem with a female colleague.
23. The tribunal considered that explanation. They found it to be unsatisfactory for three reasons. First, because the respondents had not addressed his complaints of racial discrimination raised internally; secondly, because they appeared to believe that the general BBC policy that after five years employment under successive fixed-term contracts an employee would be offered a continuing contract or be dismissed on grounds of ability (or lack of it) applied to Dr Jiad and he had not been offered such a contract, nor had he been dismissed and thirdly, because they were not satisfied, having considered Dr Jiad's appraisals, including that from 1997, that his ability was as described by Mr McLellan and other witnesses called by the first respondent.

The Employment Tribunal Decision

24. At paragraph 9 of their reasons the tribunal say, under the heading "The Law":

"The Applicant claims race discrimination contrary to section 1(1)(a) of the Race Discrimination [sic] Act 1976 on the grounds of his Iraqi nationality and claims that he was victimised contrary to section 2 of the Race Relations Act and from the primary facts as outlined above we have to consider whether we can draw inferences from those facts to infer that the Applicant had suffered discrimination. We also [sic] to consider the complaint whether the Applicant had suffered race discrimination through harassment i.e. has he suffered less favourable treatment."

25. Having dismissed parts of the complaint they proceeded to consider the relevant claims. At paragraph 11 they gave themselves the following direction:

"As to issue (ii), from the facts whether there has been less favourable treatment of the Applicant in the way that he was treated and we were referred to the guidelines set out in King v Great Britain China Centre 1992 ICR and referred to the recent case of Glasgow City Council and Zapher [sic] 1997 and the principles we have to apply to the facts. On applying those principles we find that the Applicant has made out his case that on the balance of probabilities there is a possibility that these matters arose because of his race and therefore it is for the Respondents to give an explanation as to why we should not infer that these matters happened in that way because of his race. It is clear from the evidence before us that the treatment that the Applicant suffered was less favourable than others. By not being given a continuing contract he faced a detriment in that (a) the contract could be terminated at the end of the one year period and (b) a continuing contract would have given him employment until the age of 60 which was the retirement age and the benefit of continuing pension. (c) He would have then been in a position to apply for more senior posts as and when they became available on equal terms with others who were in the like position."

26. Their conclusions on the relevant direct discrimination complaint are at paragraphs 12 to 13:

"12 We infer that this occurred on racial grounds on the basis that the Respondents appear not to have addressed his complaints that there was discrimination on the grounds of race. His grievance had not been dealt with and the management appeared to have taken a somewhat cavalier attitude to the comments that he was making regarding discrimination. The explanation being put forward by Mr McLellan and the Applicant's other supervisors does not explain why the Applicant was not given a continuing contract. The BBC policy was clear that anyone who had a fixed term contract for a period of 5 years or more should either be terminated on grounds of ability or should be given a continuing contract and this appears to have happened to other employees of the Respondents. If the Respondents had felt that the Applicant was not suitable for a continuing contract because of his ability then it is curious they did not terminate his contract and even more curious that his appraisals were of the standard as indicated. We were not shown appraisals of the other candidates so we were not able to compare them but it is clear from the marks that were given to the Applicant that his supervisor believed that his abilities were satisfactory.

13 We therefore draw inferences from the facts as stated above that the Applicant suffered race discrimination when he was not given a continuing contract.

27. Finally, as to the relevant victimisation complaint they say simply this at paragraph 15:

"15 For reasons stated above we find that he was victimised by virtue of not being given a continuing contract … For those reasons therefore we find that the only victimisation he suffered was on the grounds of not being [given] a continuing contract. …"

EAT Interlocutory applications and Judgments

28. This appeal was launched by a Notice of Appeal dated 9th July 1998. The grounds of appeal were directed both to the findings of direct discrimination and victimisation made by the tribunal in favour of Dr Jiad.
29. The case was listed for ex parte preliminary hearing in the usual way before a division presided over by Judge Pugsley sitting with Ms Corby and Mr Hodgkins on 30th November 1998. Prior to that hearing Counsel then instructed on behalf of the BBC and Mr McLellan, Mr Underhill QC and Mrs Keene, prepared and lodged a skeleton argument. Mrs Keene appeared below; Mr Underhill did not. Dr Jiad has, throughout, appeared in person.
30. At the preliminary hearing this tribunal allowed the matter to proceed to a full inter partes hearing. No judgment identifying the specific grounds on which the matter would be permitted to proceed was then delivered, as is the present EAT Practice. However, Judge Pugsley prepared a note which, in accordance with the then Practice, was not provided to the parties. That manuscript note is not easy to follow, but it seems that the case was allowed to go forward on all grounds set out in Counsel's skeleton argument.
31. A hearing of the full appeal was fixed for 18th October 1999. Dr Jiad applied for an adjournment. That application was refused by the Registrar. Dr Jiad appealed against that order to the then President, Morison J. That appeal was heard on 23rd August 1999. The BBC were not present or represented.
32. The basis for Dr Jiad's adjournment application at that stage appears to have been two-fold. First, he did not know on what grounds the appeal had been permitted to proceed at the preliminary hearing; secondly, he did not feel that he had sufficient time in which to prepare for the hearing scheduled for 18th October. In dismissing that appeal Morison J indicated, in a judgment given on 23rd August, that Dr Jiad be provided with a copy of Judge Pugsley's note. He already had a copy of Mr Underhill and Mrs Keene's skeleton argument. Secondly, Morison J made certain observations about the desirability of Dr Jiad applying to the BBC for paid time off to prepare himself for the full appeal hearing. An application by Dr Jiad for leave to appeal against Morison J's judgment of 23rd August was dismissed by that Judge's order dated 21st September 1999.
33. The full hearing of the appeal by a division consisting of myself, Ms Corby and Mrs Vickers has occupied three separate days, 18th October and 3rd December 1999 and 19th January 2000.
34. Prior to the first day, Dr Jiad made two interlocutory applications in writing to the Registrar dated 8th October. First, he renewed his complaint that Judge Pugsley's division had failed to identify the grounds on which the appeal had been permitted to proceed; secondly, he contended that the EAT had no jurisdiction to entertain the perversity grounds of appeal identified in the skeleton argument prepared by Counsel for the preliminary hearing.
35. In a separate letter dated 9th October he complained that the BBC had not served him with a copy of their skeleton argument for the full hearing 14 days prior to the hearing, as directed at the preliminary hearing.
36. The Registrar responded by letter dated 8th October directing that Dr Jiad should pursue his complaints at the hearing listed for 18th October.
37. On the first day Dr Jiad renewed his earlier applications before us. In addition, he asked me to recuse myself from sitting, on the ground that I had sat on a preliminary hearing in an earlier case in which an Iraqi colleague of Dr Jiad's in the BBC World Service had appealed unsuccessfully against an Employment Tribunal decision dismissing his complaint of racial discrimination. Alghafar v BBC and Mr McLellan.
38. For the reasons which I gave in a judgment delivered on 18th October we dismissed those applications. We shall refer to that judgment as the 'first interlocutory judgment'.
39. Having now completed the full hearing we wish to add two further observations to that which I said in the first interlocutory judgment.

(1) as to whether I ought to have recused myself, we have since been provided with a copy of the transcript of the Court of Appeal judgment in Locabail (UK) Ltd (17th November 1999). Having read the statements of principle set out in the judgment of Lord Woolf MR I am fortified in my decision, reached on 18th October, to sit and hear this case. At paragraph 21 of his judgment the Master of Rolls observes that a judge would be as wrong to yield to a tenuous or frivolous objection (to his sitting on a case) as he would to ignore an objection of substance. At paragraph 25, in listing factors which would not ordinarily cause a judge to stand down, the Master of the Rolls includes previous judicial decisions and previous instructions to act for or against a party.

I am further encouraged to believe that I know where my duty lies in trying cases at this court by the observations of Peter Gibson LJ in his judgment given on an unsuccessful application for leave to appeal in D'Souza v London Borough of Lambeth (PTA 1999/6277/3. 11th October 1999. Unreported).

Having now completed the hearing over three days I have asked myself, retrospectively, whether the fact that Dr Jiad has challenged my impartiality in hearing this appeal has in some way adversely influenced my own judgment in this case. I am satisfied that it has not. Apart from the fact that this is a three member court and the judgment on the merits of the appeal is a judgment of us all, my colleagues having seen and approved this reserved judgment in draft, following our deliberations, it should be recorded that Dr Jiad has conducted his case with unfailing courtesy, as well as conspicuous ability, to which we shall return. I hope that we have returned that courtesy. The only occasion on which I had to speak sharply to Dr Jiad was when he interrupted my judgment on the second day. I am quite satisfied that in making the applications for my removal from the case, on this and on a later occasion, Dr Jiad intended no personal offence and certainly none is taken.

(2) We are all satisfied, with the benefit of hindsight, that it was right to proceed with the case on the first day. At that stage Dr Jiad had presented a first skeleton argument dated 2nd October; a second skeleton argument headed "18th October" running to 27 typed pages, dealing in detail with the issues of fact and law in the case and incorporating his response to the skeleton argument prepared by Mr Bowers and Mrs Keene, and put together a folder containing nine unreported authorities with a summary of legal principles, in addition to the eight reported cases and two unreported cases relied on by Mr Bowers.

In the event the hearing was adjourned for want of time to the second and third days. During that time he prepared a further 11 page document summarising his submissions. He has even prepared a document setting out his challenge to certain entries in the Chronology prepared on behalf of the BBC.

It was also clear to us during oral submissions that Dr Jiad is a highly intelligent man. Although not a lawyer and appearing in person, his grasp of the considerable factual detail in the case and the legal principles to be applied, is nothing short of remarkable.

In short, we have absolutely no doubt that Dr Jiad has taken the opportunity to prepare himself for this appeal hearing to a degree which would be the envy of many experienced barristers who practice in this field. He proved a worthy opponent to one such in Mr Bowers.

40. The first day of hearing was taken up, first with Dr Jiad's various applications and then Mr Bowers' submissions on the substance of the appeal.
41. On 19th October Dr Jiad wrote to me direct, complaining that I had allowed the appellants what was in effect a full rehearing of the case. He renewed his contention that by failing to identify the points to be argued at the preliminary hearing the appellants were given a golden opportunity to adjust their arguments (without specifying in what particular respect). He concluded by saying that he expected, as he is entitled, a fair hearing. I directed the Registrar to reply that I regarded it as inappropriate to enter into correspondence with one party whilst the hearing remained unfinished. That reply is dated 2nd November 1999 and was copied to the BBC's solicitors.
42. Prior to the second day, fixed for 3rd December, Dr Jiad wrote again to the Registrar on 17th November. He complained about certain aspects of the first interlocutory judgment, stamped 14th November, again asked me to recuse myself because of the manner in which I had conducted the hearing on first day and indicated that he intended to apply for judicial review.
43. That letter was acknowledged by the Registrar on 22nd November. He was told that his letter would be placed before me and that the hearing would proceed on 3rd December.
44. On 30th November he wrote again, contending that in the light of Locabail judgment there would be a serious miscarriage of justice, first because the issues were not precisely determined at the preliminary hearing and secondly because I insisted on continuing to sit despite his objections of the appearance of and actual (later withdrawn) bias. Further, he required an adjournment so that he could apply for judicial review. The BBC opposed the application for an adjournment by a letter dated 1st December, giving their reasons.
45. Those further applications were renewed at the start of the second day hearing held on 3rd December. It then became apparent, for the first time, that Dr Jiad's substantive complaint as to the issues not being properly defined was as follows.
46. The principal point taken in Mr Underhill's skeleton argument against the finding of victimisation adverse to the BBC was that the tribunal had failed to make an explicit finding that the decision taker whose decision had led to the act complained of, that is, refusal to grant Dr Jiad a continuing as opposed to a fixed-term contract in July 1997, had been consciously motivated by Dr Jiad's protected act, namely his internal grievances complaining, among other things, of racial discrimination. Reliance was placed on the Court of Appeal decisions in Nagarajan v London Regional Transport [1998] IRLR 76 and Aziz v Trinity Street Taxis [1988] IRLR 204. By the time that Mr Bowers with Mrs Keene came to prepare their skeleton argument for the full hearing, which we are satisfied was delivered to Dr Jiad on 6th October and not 1st October as Mr Bowers informed us on the second day, those cases had been overruled by the House of Lords in Nagarajan [1999] IRLR 572. Conscious motivation on the part of the respondent is not required under s.2(1) of the Race Relations Act 1976, any more than it is under s.1(1)(a).
47. Accordingly that point was abandoned by Counsel. Instead, as appears from paragraphs 8-9 of Mr Bowers' skeleton argument, the attack on the victimisation finding was directed principally to the question as to whether the tribunal here had addressed the issue of causation, namely whether the discriminatory act complained of was done by reason of the protected act done by the applicant (it being said further that no protected act was identified by the tribunal in their reasons). That submission was developed by Mr Bowers in oral argument on the first day without objection by Dr Jiad. Further, it is clear that Dr Jiad had addressed the points now raised in his second, amended skeleton argument (page 26-7) presented in advance of the first day hearing.
48. For the reasons which we gave in the judgment which I delivered on 3rd December 1999 (the second interlocutory judgment) we declined to shut out what we shall call the 'new victimisation point' advanced by Mr Bowers. It seemed to us then and does now that unless a ground of appeal has been expressly dismissed at the preliminary hearing stage, in which case the EAT is functus officio, it is open to a party to seek to add to or alter his grounds of appeal, subject to the other party being given a proper opportunity to deal with it. In this case Dr Jiad had prepared his response to the new point in advance of the first day in his amended skeleton argument. He had not taken objection to the point being advanced in oral argument by Mr Bowers on the first day. In the event, he was not called on to deal with the point orally until the third day (19th January 2000). In these circumstances no prejudice was caused to Dr Jiad. Had formal leave to amend the Notice of Appeal been necessary, we should have granted it. The new point was arguable.
49. Thereupon Dr Jiad applied, for the first time and without prior notice to the BBC, to amend his answer dated 24th February 1999 to add three matters by way of cross-appeal. We refused that application for the reasons given in the second interlocutory judgment, paragraphs 11-14.
50. Finally, Dr Jiad renewed his application for an adjournment to enable him to apply to the Divisional Court for Judicial Review. We rejected that application. The EAT is a superior court of record. Employment Tribunals Act 1996 s.20(3). It is not susceptible to the overseeing jurisdiction of the Divisional Court. The remedy for an aggrieved party here is to seek leave to appeal to the Court of Appeal, first by application to this court and then, if that application is refused, by renewing the application direct to the Court of Appeal. Dr Jiad sought to appeal against the second interlocutory judgment by a letter addressed to the President, Lindsay J, dated 22nd December 1999, together with supporting grounds and documentation. That was treated as an application to this division for leave to appeal. We considered the application and refused it by order dated 10th January 2000.
51. That procedural history completed, we turn now to the substance of the appeal.

The Law

52. A tribunal decision is not required to be an elaborate formalistic product of refined legal draftsmanship, but an outline of the story which had given rise 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 need to know why they have won or lost. Meek v Birmingham District Council [1987] IRLR 250.
53. When dealing with law it is not necessary for the tribunal to set out the words of the statute applied to the facts as found, nor repeat as a mantra the principles to be found in guideline authorities such as King v Great Britain China Centre [1992] ICR 516, 528F-529C, per Neill LJ. However, the tribunal must adequately demonstrate by its reasons that it has correctly applied the law to the facts as found.
54. When considering the perversity ground of appeal it is important to recognise the limits to the EAT's jurisdiction. It is not our task to re-open factual issues. That is the province of the Employment Tribunal. The cases in which this ground of appeal will succeed are necessarily few and far between. Perversity will be made out where there is no evidence to support a material finding of fact. Piggott Brothers v Jackson [1991] IRLR 309. It is not enough for an appellant to argue that there was insufficient evidence to support such a finding, or that the tribunal "misunderstood or misapplied the facts". British Telecommunications plc v Sheridan [1990] IRLR 27.
55. There remains a residual category of cases where on appeal it is concluded that the decision was irrational, an impermissible option or any of the other expressions helpfully collected by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443.
56. These propositions, we think, are not contentious.
57. We turn next to the statutory provisions and guideline authorities material to the relevant complaints in this case.

Unlawful direct racial discrimination

58. Under s.1(1)(a) of the 1976 Act it is for the applicant to show that he has been less favourably treated than an appropriate comparator, as defined in s.3(4), on racial grounds and that such discrimination is unlawful, here, in any of the ways mentioned in s.4(2).
59. The tribunal found that the applicant suffered a detriment by not being offered a continuing contract on the expiry of his existing fixed-term contract on 31st December 1998. That finding is not challenged. The focus is thus on s.1(1)(a) read with s.3(4).
60. In applying those provisions the correct approach is that identified in the speech of Lord Browne-Wilkinson in Glasgow City Council v Zafar [1998] ICR 120, a case apparently cited to this Employment Tribunal.
61. Based on that authority it was, we understand, accepted by both Mr Bowers and Dr Jiad that the tribunal is required to embark on a four-stage enquiry.

(1) was there a difference in treatment between the complainant and an actual or hypothetical comparator?

(2) was there a difference in race between the complainant and comparator?

(3) if so, has the respondent provided an adequate explanation for that difference in treatment?

(4) if not, should the tribunal draw an adverse inference of unlawful discrimination on racial grounds against the respondent?

62. Stages 3 and 4, as separate considerations, arise specifically from the House of Lords approach in Zafar. There, the Employment Tribunal found that the treatment afforded to the applicant by his former employer fell below the standards of a reasonable employer, that that gave rise to a presumption that he had been treated less favourably than others and that, in the absence of any satisfactory explanation justifying the treatment accorded to him, they had no choice but to draw an inference that he had been unlawfully discriminated against on racial grounds. The complaint succeeded. An appeal by the respondent to the EAT was dismissed; a further appeal to the Court of Session succeeded. In upholding the Court of Session's judgment Lord Browne-Wilkinson, in approving the King test propounded by Neill LJ, corrected the impression which he himself had given when President of the EAT in Chattopadhyay v Headmaster of Holloway School [1982] ICR 132, that an inference of unlawful discrimination should be drawn where the appellant succeeded at each of the first three stages outlined above.
63. What we draw from Zafar is that even where a respondent fails to provide a satisfactory explanation for the less favourable treatment meted out to the complainant, when compared with that afforded to a relevant comparator, it does not necessarily follow that the tribunal is bound to draw the inference adverse to the respondent. In short, to omit stage 4, but proceed directly from stage 3 to a finding of unlawful discrimination based on inference alone (the tribunal found no direct evidence of discrimination here) will amount to an error of law.

Victimisation

64. Here again we look to the authoritative guidance from the House of Lords on the proper application of s.2(1) of the 1976 Act to be found in Nagarajan v LRT [1999] IRLR 572.
65. As earlier observed, the House of Lords disapproved the requirement, imported into the statutory provision by the Court of Appeal in Nagarajan and Aziz, that for a finding of victimisation it was necessary for the tribunal to conclude that an identifiable individual was consciously motivated in treating the applicant in the way complained of. It is enough that an effective cause of that treatment was the protected act relied upon.
66. In these circumstances it seems to us that for an Employment Tribunal to find a complaint of victimisation under s.2(1) proved the following questions arise:

(1) has the applicant done a protected act, as defined in s.2(1)(a)-(d)?

(2) has the respondent treated the applicant less favourably than it treated or would treat an actual or hypothetical comparator who had not done the protected act?

(3) was the doing of the protected act by the applicant an effective cause of the treatment complained of. It need not be the sole cause, but it must be a substantial and effective cause of the treatment. [The causation issue.]

The Appeal

67. It is convenient to deal with the grounds of appeal under three heads:

(1) Perversity

Mr Bowers has taken us to the facts as found by the tribunal and extracts from the evidence before the tribunal. Dr Jiad has replied in kind.

We do not find it necessary for the purposes of this judgment to recite those arguments in detail. It is sufficient to say that we are not persuaded that the tribunal has reached a decision which passes the test of perversity identified in Stewart. We say that subject to one reservation. That relates to Mr Bowers' argument on the tribunal's finding as to the BBC World's policy on fixed-term contracts, to which we shall return.

(2) Direct discrimination

Dealing with the four-stage enquiry to which we have earlier referred, Mr Bowers complains that the tribunal has not identified the relevant comparators for the purpose of the first-stage comparison. We accept that the tribunal do not spell out in terms who is or are the comparators. It would have been good practice to do so. However we accept Dr Jiad's submission that the tribunal treated those employees of different racial origin who were offered continuing contracts when the applicant was offered a one-year renewal on termination of his existing fixed-term contract in the Summer of 1997 as the appropriate comparators. We therefore reject that submission by Mr Bowers.

It is clear that there was a difference in race between Dr Jiad and those comparators (Stage 2).

The tribunal found the explanation given for the difference in treatment unsatisfactory. In certain material respects they rejected the evidence of Mr McLellan. They were entitled to do so as the judges of fact.

However, and this is Mr Bowers' principal submission under this head, the question arises as to whether the tribunal, on the face of their reasons at paragraphs 11-12 misdirected themselves in law by requiring the employer to provide an adequate explanation for the difference in treatment, failing which an adverse inference of discrimination on racial grounds would follow without more. That, he submits, is the self-direction, misstating the true principle in Zafar, which the tribunal give at paragraph 11; that that misdirection was in fact applied by the tribunal is amply demonstrated in paragraphs 12-13. The tribunal reject the respondents' explanation for the reasons given in paragraph 12; without more they proceed, in paragraph 13, "therefore" to draw inferences from the facts that the applicant suffered discrimination when he was not given a continuing contract. In these circumstances, Mr Bowers submits, the tribunal failed to answer the final causation question posed at Stage 4. A respondent may provide an explanation for the treatment which the tribunal considers unsatisfactory; it does not necessarily follow that the treatment was applied on racial grounds.

Dr Jiad submits that here the tribunal have properly directed themselves as to the law. He points to the question posed at paragraph 9 of the reasons; "whether we can draw inferences from those facts to infer that the Applicant has suffered discrimination." The word "can" imports discretion, not obligation to draw the adverse influence. The tribunal made the necessary comparison; found less favourable treatment; rejected the respondent's explanation for that treatment, then stood back and considering their findings as a whole concluded that this was a proper case in which to draw the inference.

On this issue we are driven to accept the submissions of Mr Bowers, having started from the position that this very experienced Chairman, having been referred to Zafar, was unlikely to misapply those principles. However, we are unable to avoid that conclusion, looking at the way in which the self-direction is expressed and its subsequent application on the face of the reasons.

It is not for the respondent to give an explanation as to why the tribunal should not draw an adverse inference. That is what Mr Bowers accurately describes as the "Chattopadhyay heresy". Unless the respondent provides an adequate explanation for the difference in treatment we shall draw the adverse inference. They found that the explanation was unsatisfactory. Therefore they drew the adverse inference.

On this point, the tribunal's failure to proceed to stage 4, we uphold the appeal against the tribunal's finding of direct discrimination.

There is a further matter. It relates to the tribunal's findings at paragraph 5(d) and (e) as to the BBC World Service policy on fixed-term contracts applicable to the applicant. We have touched on the point in setting out the background to the case.

We heard considerable argument from Mr Bowers and Dr Jiad as to the evidential basis for such a finding. We were inclined to accept Mr Bowers' submission. However, a further question arises, for the purposes of this appeal, as to whether even if the tribunal made a finding as to the policy unsupported by, in the sense that it was contrary to, the unchallenged evidence before them, that fatally undermines the tribunal's rejection of the explanation put forward by the respondents as set out in paragraph 12.

In the event, without dissent from Mr Bowers in his reply, we have concluded that since the appeal on direct discrimination succeeds on the ground referred to above and since we have rejected the perversity argument, so that it cannot be said that the tribunal's decision on direct discrimination was "plainly and unarguably wrong" (Dobie v Burns International [1984] ICR 812) entitling us to set aside the finding rather than remit the case for rehearing on this point, it is neither necessary nor desirable to express any view on that submission. The question of the BBC policy and its significance will be a matter for the new tribunal on remission.

(3) Victimisation

We shall not repeat the debate over whether the appellants ought to be allowed to raise the new victimisation point. Suffice it to say that Dr Jiad maintains his objection to such permission being granted by this Appeal Tribunal.

Dealing with the substance of the point, Mr Bowers submits that the tribunal has failed to identify (a) the relevant protected act(s) and (b) the relevant comparators, that is, those who were more favourably treated than Dr Jiad and who had not done the protected acts.

We take a similar view to that which we took in relation to the identity of the comparators for the purposes of the relevant direct discrimination claim. Although not spelled out, as they ideally ought to be, we are prepared to assume, reading the reasons as a whole, that the protected act consisted of the grievance raised by Dr Jiad, including a complaint of racial discrimination (s.2(1)(d) of the 1996 Act) and that the same comparators were used as in the direct discrimination claim, further assuming that they had not done a protected act.

However, the real point taken by Mr Bowers in relation to the victimisation finding focuses on the causation issue. Even making the various assumptions referred to above, it is simply not enough for the tribunal to say, based on reasoning applicable to the question of direct discrimination, that the relevant victimisation claim is made out. In particular, there is no finding linking the protected act with the treatment complained of.

In response Dr Jiad has referred us, as a result of his extensive legal researches, to an unreported decision of the Court of Appeal in London Borough of Hackney v Tiyamiyu (20th February 1998). There, the tribunal found in favour of the applicant that there had been direct racial discrimination and victimisation by the Council who employed him. In the Court of Appeal the Council's contentions that the tribunal ought to have dealt separately with the complaints of direct discrimination and victimisation and have identified the perpetrators of that treatment were rejected. However, in so finding, Mummery LJ, giving the leading judgment, was satisfied that the tribunal did treat the two complaints separately and demonstrated that they were aware that they had different ingredients. That was clear on the face of the tribunal's reasons.

Unhappily, in the instant case we are unable to discern from the tribunal's reasons how they have approached the question of victimisation, nor what separate findings they have made, over and above the findings of fact common to both causes of action, so as to satisfy the reader that they have made the necessary causal link. To this extent we find that the tribunal's reasoning does not pass the Meek test. The respondents below have not been told why they lost on the relevant victimisation complaint. The tribunal's reasons do not allow us to determine whether or not they have fallen into error.

For this reason we are obliged to allow this part of the appeal also.

Disposal

68. It follows that this appeal must be allowed; the orders of the tribunal set aside and the matter remitted to a fresh tribunal for complete rehearing in relation to the two findings, the subject of this appeal only.
69. Since no cross-appeal against the findings adverse to Dr Jiad is before us, for the reasons earlier explained in the section of this judgment dealing with EAT interlocutory applications, it follows that the remaining complaints by Dr Jiad stand dismissed by Mrs Prevezer's tribunal.