United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us as a preliminary hearing the appeal of Dr Y. Awad in the matter Awad against three Respondents, firstly, the Secretary of State for Employment; secondly, the BBC and thirdly, Mr G. McLellan. It is now very nearly 20 to 11:00. This matter was listed to come on at 10:30 am. Nothing has been heard at all from Dr Awad. The Office telephoned the number that they have for him and was told that he was away. When the Office raised the question of where he was, the answer came back that it was understood that he was out of the country. At all events, nothing has been heard from him. There is no suggestion that he has been inadvertently delayed or sick or anything of that nature and accordingly, we will go ahead with the merits of the appeal.
2. On 17 September 1998 in previous proceedings, not the ones now before us, the Employment Tribunal rejected a claim by Dr Awad for racial discrimination and victimisation in respect of the BBC.
3. On 12 February 1999 Dr Awad presented an IT1, the last numbers of which were 889/99. The complaint was "Victimisation - Refusal of Employment" and at that point there were two Respondents, the BBC Arabic Service and Mr G. McLellan. On the next day, 13 February 1999, another IT1 was presented marked "Discrimination". The discrimination was said to have occurred on 20 January 1999. That matter was given the number 864/99 and that had two Respondents, the Secretary of State for Employment and the BBC Arabic Service.
4. On 10 March 1999 an IT3 was lodged to answer 864/99 and on the same day another one answered 889/99 and also asked for consolidation of the two proceedings. Between 13 and 15 October 1999 there was a hearing at London (North). Both cases came on together and therefore there were, of course, three Respondents, which has since been the position. On 8 November 1999 the decision was sent to the parties and it was as follows:

"The unanimous decision of the Tribunal is that the Applicant was not the subject of discrimination on the grounds of his race, nor was he the subject of victimisation."

5. On 17 December 1999 there was a Notice of Appeal by Dr Awad. Before returning to the Notice of Appeal it will be necessary to say something of the findings of the Tribunal, which was under the chairmanship of Mrs J.R. Hill. The Extended Reasons amount to some eight or so pages of close typing. We do not need to refer to all the findings of fact but at least sufficient to make the rest of this decision comprehensible. That background is as follows.
6. In earlier litigation, as I mentioned earlier, Dr Awad had complained about discrimination and victimisation in respect of the BBC. He complained that he had been discriminated against by reason of his ethnic origin or nationality and those claims, as we mentioned, failed and that was made quite plain to him by the Tribunal's decision of 17 September 1998. However, despite that, Dr Awad continued to send letters and documents to the BBC as to which the Tribunal said this:

"9 From that time [that time being 17 September 1998] Dr Awad continued to send a number of letters and documents to the BBC World Service, whether directed at the Chief Executive of the World Service, to Mr McLellan or to other members of the BBC Arabic Service. The documents continued to issue warnings and threats to staff. He further subsequently issued County Court proceedings against a number of named members of staff." [A particular example is then referred to].

The Tribunal also returned to the same subject later when they said this, in their paragraph 28:

"28 The way in which Dr Awad has approached this matter and the intemperate language he has adopted, coupled with the scatter-gun approach in the people to whom he sends his correspondence, are all indications of the fact that Dr Awad does not accept the findings of earlier Tribunals and harbours a real grievance against the BBC. There is no doubt about the genuineness of his feelings in this matter. …"

7. On 7 December 1998 the BBC had advertised for producers within the BBC Arabic Service and Dr Awad completed an application form on 18 December 1998. Further consideration by us really needs to divide matters into two: Dr Awad's response to this advertisement, or at least the consideration given to it by Mr McLellan, the Head of the Arabic Service on the one hand and the response of those responsible for short-listing on the other. So first of all we will take Mr McLellan's position.
8. On 6 January 1999 Mr McLellan wrote to Dr Awad and his letter is set out in the decision of the Tribunal. We do not need to read all of it, but part of it said this:

"I have received an application form submitted by you in response to an external advertisement reference no. 30262.

You will remember that you also submitted an application in 1997 and I wrote to you on 6 August that year to tell you that I would not be proceeding with your application for employment as a member of the BBC and that you would not be invited to attend for testing or interview. I explained in that letter that in an earlier letter to you of 4 July 1997 I had made it clear that your actions had undermined the mutual trust and confidence which are essential if someone wishes to work for the BBC. This section of my letter was quoted on pages 13 – 14 of the decision by the Employment Tribunal of 17 September which rejected your allegations of racial discrimination and victimisation against you by the BBC."

And a little later, the letter continued:

"It is clear to me that the lack of mutual trust and confidence I referred to in 1997 is as marked now as it was then and that it would be quite inappropriate for the BBC to proceed with your fresh application. In any case, even if this were not the case, the information provided in the application form is so scanty that it would not be possible for it to be used for short-listing."

The Tribunal recognised the nature of the complaint made against Mr McLellan. They say:

"6 Dr Awad claimed that the refusal by Mr McLellan in his letter of 6 January 1999 to allow his application to go forward for consideration was an act of victimisation arising from previous complaints made by Dr Awad about racial discrimination within the BBC."

And a little later in their decision, they set out the nature of the complaint, in their paragraph 27 as follows:

"27 The Applicant's second complaint was that of victimisation, based on the letter sent to him by Gamon McLellan on 6 January 1999. It was not disputed by the Respondents that the Applicant has brought proceedings against the BBC alleging racial discrimination and that these would constitute protected acts. The Tribunal noted the reasons put forward by Mr McLellan for writing the letter of 6 January and in particular noted the continuation of what was described in the earlier Tribunal decision as 'a barrage of correspondence'. It was clear from the sample of correspondence adduced in evidence, from the application form sent by Dr Awad to the BBC for this post and from Dr Awad's own evidence before the Tribunal that he continues to accuse the BBC of racial discrimination despite there being clear findings by a Tribunal against him on this matter."

After referring to Dr Awad's intemperate language in the passage that we have already cited, the Tribunal continued:

"28. … The Tribunal concluded from all the correspondence shown that Mr McLellan was fully justified in considering that it would be wholly unrealistic to expect Dr Awad to give to the BBC the confidence and loyalty which would be an implied term of any contract of employment. There would be no agreement as to the mutual trust and confidence that should be shared between an employer and employee, such that there never could be a true contract between the BBC and Dr Awad. The content of the allegations made by Dr Awad was not the issue: it was the fact that he could not and would not accept the position as found in law and therefore would not be able to properly enter into any form of contractual relationship with the BBC."

In their paragraph 29, they continued the point:

"29 … The Tribunal therefore concluded that it was not the fact of Dr Awad's bringing the earlier Tribunal cases that was the operative fact in Mr McLellan's mind when he wrote the letter of 6 January, but the combination of the Applicant's continued campaign and clear lack of intention ever to be in a position to enter a true contract of employment in all senses. The complaint of victimisation is therefore dismissed."

9. So much for the victimisation and Mr McLellan's position. Turning to the position as to short-listing, short-listing was delegated to a Mr Broughton who was not aware of Mr McLellan's letter of 6 January 1999. As to that the Tribunal said this:

"3 Mr McLellan had earlier delegated the task of dealing with recruitment to Martin Broughton who was not aware of the letter of 6 January. Dr Awad's application form was considered along with the others for short-listing. The shortlisters did not discuss their task with Mr McLellan. In all there were 28 applicants, 21 of whom were what is described as 'resident workers', ie persons who do not require a work permit to enable them to work in the United Kingdom. Nine of those workers were not short-listed to attend for further testing."

10. Dr Awad's application form did not give the information which a fully completed form required. The Tribunal gave details of what was lacking in that form but Dr Awad's form also included something that one might not expect in a conventional application form because, as the Tribunal found:

"The third page, which related to skills, abilities and experience, the Applicant had completed as follows:

'I believe the BBC Arabic Service is a racist institution and the information required for equal opportunities monitoring is used to consolidate this fact'."

Dr Awad was not short-listed. He received a letter on 20 January. The Tribunal quotes it, as follows:

"Thank you for returning your completed application form in connection with the above advertisement. Your papers have been carefully considered but I am now writing with regret to inform you that your name has not been included in the short-list of candidates invited to attend the written and voice assessment. I am sorry to disappoint you but I should like to thank you for the interest you have shown."

And the Tribunal records that the successful candidate was Mr Abdul Razek, an Egyptian national, who required a work permit.

11. The Tribunal describes how work permits are applied for; the application is made by the employer concerned. They are dealt with by a body called "The Overseas Labour Service" and one has to note the chronology here. The IT1s were presented, as we said, on 12 and 13 February 1999. A work permit for Mr Razek was applied for by the BBC only on 4 March 1999 and on that time point the Tribunal said:

"12 The application for a work permit for Mr Razek was sent on 4 March 1999 and a work permit was finally obtained on 26 April."

As to that timing, the Tribunal says this:

"15 … The Tribunal noted that it was accepted by Dr Awad that the application for a work permit for Mr Razek was not made until 4 March 1999, which post-dated the presentation of the Originating Application and that this would be the first time that the Overseas Labour Service were involved with the recruitment process. Consequently, there was no evidence that the Applicant had put forward that would implicate the Overseas Labour Service at a time that fell within the jurisdiction of the Tribunal to consider. At the time that the Applicant presented his complaint, namely 13 February 1999, the Overseas Labour Service was not aware of or involved in the recruitment process and had not been asked to address the question of a non-resident worker. Consequently, there was no way that they could be said to have knowingly aided another person to commit an act in contravention of the Race Relations Act 1976. There could be no case for them to answer."

12. The Tribunal then turned to direct discrimination by the BBC. The Tribunal returned to describing short-comings in Dr Awad's application form. It held as follows:

"20 The Tribunal concluded that it was clear on the face of the document why the Applicant was excluded. He put inadequate information on his application form and the short-listers were therefore unable to assess his abilities."

13. The Tribunal next considered whether some improper preference in job selection was given to persons who required work permits or had not made allegations of victimisation or racial discrimination in the way that Dr Awad had. They constructed a view of a hypothetical comparator who needed a work permit but who had failed adequately to complete his form but who also, unlike Dr Awad, had not added complaints about the BBC having racist attitudes and, as to such a hypothetical comparator, the Tribunal said:

"24 The Tribunal was satisfied that such a person would, like the Applicant, be excluded from the short-list for the post on the basis that, in the absence of proper information on the form as requested, the short-listers had no basis on which to select such a candidate."

The Tribunal then turned to consider discrimination by the BBC on racial grounds and it said:

"26 The Tribunal was satisfied that the way in which the process of short-listing was carried out was that described to us by Ms Mabley and was conducted in an impartial and fair manner and was based on the information available to the short-listers. We therefore reject the Applicant's complaint that his failure to be short-listed for the post of producer was an act of discrimination on the grounds of his race."

And accordingly, the final paragraph of the decision says:

"30 All the Applicant's complaints against all the Respondents are dismissed."

14. Against that background we now return to the Notice of Appeal. Dr Awad divides his attack between an attack on the Overseas Labour Service and that on the BBC. Let us take first the case, on appeal, as against the Overseas Labour Service. The Notice of Appeal says:

"(a) The fact that the application for Mr Razek was made after filing the case on 13 February 1999 does not mean that the OLS was not aware of his wrong appointment. Dr Awad contacted the OLS before application and there was evidence of their response."

15. But the Tribunal had held, as a fact, that the OLS was not involved in the recruitment process until 4 March 1999, in other words, well after the IT1s were lodged. Until then, as we have seen from the citation earlier, the OLS were unaware of and uninvolved in the recruitment position and had not been asked to address the question of a non-resident worker. Those were findings of fact by the Tribunal and we can only emphasise that we are concerned only with errors of law. In this area the Tribunal's conclusion discloses, as we view it, no arguable error of law. The Notice of Appeal next says this:

"(b) The Tribunal without justification ignored previous correspondence between Dr Awad and the OLS on the issue."

16. It is for the Employment Tribunal to evaluate the evidence, including correspondence, presented to it. Unless it is shown that the Tribunal came to a conclusion which had no evidence at all to support it, then the task of showing error of law is immensely difficult.
17. There were clear findings that until 4 March 1999 the OLS was wholly uninvolved in connection with the recruitment process, meaning, by that, the recruitment process for this particular job. It was for Dr Awad to prove otherwise on the facts and in that he failed. The decision had all the appearance of a careful assessment by an independent Tribunal. We have no reason beyond the mere bald assertion in the Notice of Appeal to believe that the Tribunal's decision overlooked anything of relevance. Of course, we have not had the correspondence, which has been said to have been overlooked, drawn to our attention this morning because no one appears at all for Dr Awad and in the situation which presents itself we must also bear in mind the well known dictum of Lord Russell in Retarded Children's Aid Society -v- Day [1978] IRLR 128 CA, that one cannot assume merely from a matter not having been mentioned by the Tribunal that it was not in mind. We find no arguable point of law in this part of Dr Awad's case. Then, still on the case as against the OLS, Dr Awad says this:

"(d) The OLS must have noted that Mr Razek had no legal right to compete with British Citizens.

(e) Dr Awad was logged as No.13 and not 4. Eventually the BBC did not supply information about him to the OLS."

18. The first of those two sentences is marked (d) and the second is marked (e). The point described as point (d) leads to no conceivable error of law on the part of the Tribunal. As for (e), the Tribunal itself recognised that in the BBC's internal numbering Dr Awad had been No.13. They say so. They say in their paragraph 18, "The Applicant's number was 13". We accept that the list sent to the OLS by the BBC would seem to have Dr Awad as No.4 because of No.4 it was said:

"The Applicant was Candidate 4: No attempt made by the applicant to complete the application form in a way which demonstrated any relevant skills and experience. No information given on which to short-list properly."

19. But it by no means follows that the numbering in the BBC's internal system was the same numbering system when the OLS was written to and it could, of course, be that he was No.4 in one series and No.13 in the other. Nor was there any need for the BBC to supply information to the OLS about Dr Awad as Dr Awad did not get the job and, in any case, did not require a work permit in order to get it. Again, we find no arguable error of law in the Tribunal's conclusion that there was no case against the OLS.
20. As for the complaint in the Notice of Appeal against the BBC, the first complaint is as follows:

"The Applicant was an employee of the BBC and had a file there. The BBC could not claim that they lacked information about him.

The BBC did not do any effort to ask the Applicant to improve his application."

21. It is both reasonable and conventional for employees to require a form to be completed for job applications, even where the Applicant is already in the employ of the particular employer concerned. Indeed, all too easily an employer could in some cases become entangled in discrimination litigation were he to treat some existing employees more favourably than outsiders. It was therefore no material error on the BBC's part to require a fully completed form from Dr Awad even if, which in any event was not established, it could have got the information from elsewhere or even if it had somewhere within its corporate knowledge the information which was lacking in the form. Next, Dr Awad says this:

"Mr McLellan said in his evidence that he wouldn't have allowed the Applicant to work in the BBC even if he was short-listed."

22. But the Tribunal held, on the evidence, that that was not discriminatory in any unlawful sense but was because "it would be wholly unrealistic to expect Dr Awad to give to the BBC the confidence and loyalty which would be an implied term of any contract of employment". Finally Dr Awad's Notice of Appeal says this:

"The Tribunal had no justification to ignore Mr McLellan's letter of 6 January 1999."

In fact, so far from ignoring the letter, the Tribunal quoted it at considerable length. They examined Mr McLellan's position and found it to be devoid of any unlawful discrimination.

23. All in all, having considered, we hope, every ground that Dr Awad has raised in his Notice of Appeal, we find nothing that can be described as even an arguable error of law and accordingly we must dismiss the appeal even at this interlocutory stage.