United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SHORT Solicitor Messrs Thomas Watts & Co Solicitors 19-21 Kensington Church Street Kensington London W8 4LF
For the Respondent	MISS M CARSS-FRISK (One of Her Majesty's Counsel) British Broadcasting Corporation Litigation Department BBC White City 201 Wood Lane London W12 7TS


 


MR JUSTICE HOOPER

1. This is an appeal against a decision of the Employment Tribunal chaired by Mr Caborn refusing the Appellant's application for a review on the grounds that it had no reasonable prospect of success. That decision was reached applying Rule 11(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1. Under that rule an application may be refused if it has no reasonable prospect of success. The decision was reached by an Employment Tribunal consisting not only of Mr Caborn but also of Mr Brandt and Mr Pearson.
2. The application for the review was heard on 17 January 2000 and the extended reasons for the conclusion was sent to the parties on 4 February 2000. The application for review related to a decision of the Employment Tribunal (constituted in the same manner) sent to the parties on
   11 September 1998. The hearing had taken place over a number of days in July.
3. The Tribunal was considering 3 applications made by the Appellant. The first was a complaint of race discrimination, relating to the Respondent's decision not to renew the Appellant's fixed-term contract of employment which expired on 4 July. The second, a complaint of race discrimination related to the Respondent's rejection of the Appellant's application in July 1996 for further employment and the third complaint of race discrimination related to the Respondent's rejection of the Appellant's application in May 1997 for employment in the post previously held by him.
4. The Appellant represented himself. He gave evidence and called a number of witnesses and referred the Tribunal to a number of written statements. The Respondent was represented by Counsel, Mr Goulding, and evidence was given by, amongst others, Mr Gamon McLellan.
5. The thrust of the complaints made by the Appellant against the BBC was that there was discrimination in the BBC Arabic Services against those, like the Appellant, of Syrian origin, in favour of those of Egyptian origin.
6. Mr McLellan had written a letter to the Appellant giving the reasons why the Appellant's contract had not been extended. According to Mr McLellan the BBC were concerned about two key areas, namely his interpersonal skills and his "microphone performance".
7. The credibility of Mr McLellan was obviously a relevant matter for the Tribunal in giving its extended reasons. In paragraph 27 (page 30 of the bundle concerning that hearing) the Tribunal stated that the reasons expressed by Mr McLellan for not renewing the Appellant's fixed-term contract of employment:

"..are accepted by the Tribunal as the true reasons for not doing so."

8. During the course of the hearing the Respondent, through Mr McLellan, sought to show that those of Syrian origin were not discriminated against in the manner alleged by the Appellant.
9. Paragraph 7 of Mr McLellan's statement read as follows:

"I first came across Jamil (Elabed) when he joined the staff on his first day. I took him all around the Arabic Service and introduced him to all members of staff. This was standard treatment. I was pleased that there was another Syrian member of staff as there were other Syrians working in the Arabic Service: Alya Charabati (Senior Producer), Dr Abdulrazzak Al-Sayed (Deputy Editor) and Dr Ziyad Hakim (Producer). Another Syrian producer in the Service, Faisal Al Kasim, who had done first class work in the Service was seconded by me around that time to the new television channel, where soon afterwards he was offered a highly paid position as a news presenter. In April 1995, he was selected for the post of Senior Producer, Current Affairs in the Arabic Service. Both Hassan Muawad and I were members of the board who selected him. However, he did not take up that offer, preferring to accept the presenter post in BBC Arabic Television. After the television channel closed in 1996, he went on to work in the same capacity in an international satellite television news station. He is now an established television presenter."

10. The Appellant appealed the decision of the Employment Tribunal. Prior to the hearing of that appeal the Appellant received a letter from Ms Janet Youngson, who is a solicitor in the litigation department of the BBC and who has had many dealings with cases arising out of the Arabic Services department. The letter reads as follows:

"In the course of a recent Industrial Tribunal it came to light that a paragraph in a statement made by Gamon McLellan in relation to your case numbers 48140/96, 2202170/97, 2205310/97, contains some inaccuracies.

Gamon McLellan's statement states that in the Board for Senior Producers in April 1994 the Board had selected Faisal Al Kasim as the successful candidate. In fact the date given was not accurate. The Senior Producer Selection Board in question was in 1994 and it took place in 24^th October and 4^th November of 1994. Faisal Al Kasim was interviewed by the board and was unanimously considered to be the outstanding candidate. However, before the Board announced the results Faisal Al Kasim withdrew his application because he had been offered a position as an announcer in World Service Television at a salary substantially above that for the Senior Producer post which he had applied for. That was the reason why the Board minutes noted that the successful candidate was Fouad Razak.

The BBC were concerned that this matter should be clarified, hence this letter to you."

11. We were concerned at the failure on the part of the Appellant to take these points before the Employment Tribunal, rather than seeking a review. We take the view that it would have been better if the matter had been raised before the Employment Appeal Tribunal when considering the 1998 decision, but for reasons which we do not need to go into, we attach no criticism to the Appellant for the course that he adopted. Ultimately the Employment Appeal Tribunal, on grounds which are of no concern to this Tribunal, dismissed the Appellant's appeal against that decision.
12. The thrust of the application for a review was that, having regard to the contents of the letter of Janet Youngson, paragraph 7 of the statement made by Mr McLellan was in error in two particular respects. It is being said in the statement that the Syrian Producer Faisal Al Kasim had been selected for the post of Senior Producer, Current Affairs in the Arabic Service and secondly that he had not taken up the offer.
13. Against that background we turn to the material that was available to the Employment Tribunal when it heard the application for review. The BBC produced a further letter dated 7 November 1994 addressed to Mr Al Kasim from the Personnel Office in the World Service. That letter states:

"… Thank you for attending the selection panel interview on 24^th October and for informing us before the board was reconvened on 4^th November that you wished to withdraw your application as you had been offered a contract by Arabic Television.

Members of the selection panel would like me to convey that you were considered a strong candidate for the post of Senior Producer and should be encouraged to apply for any similar vacancies in the future if this fits in with your career plan.

We would like to wish you all the best with your new contract and thank you for the contribution you have made and will no doubt continue to make to the Arabic Service.

If you would like any feedback on your motivational questionnaire please ring Barbara Milliken on 07-14758. As you are aware, this was not in any way a deciding factor in the selection process but, if you are interested, I would be happy to explain how it was helpful in making the interview more focused and relevant to you."

14. There were also four statements and they will be found set out at pages 32-43 of the bundle. They are the statements of Mr McLellan, of Anne Dent, of Jeffrey Phillips and of Hassan Muawad. Those four persons were members of the selection panel that was considering who should be appointed to the post of Senior Producer and who were to interview the candidates, including Mr Al Kasim. We shall turn to the details of those statements later.
15. In paragraph 7 of its extended reasons the Employment Tribunal stated:

"The ground upon which the Applicant seeks a review is that the decision of the 8 September 1998 is based "… wholly or in part on perjured evidence". At the full merits hearing in July 1998 the unanimous decision of the Tribunal, as recorded in the decision sent to the parties on 11 September 1998 was that the Applicant had not been subjected to racial discrimination, as he alleged. The Tribunal's reasons for its decision are as set out in the extended reasons decision dated 8 September 1998. In coming to its decision the Tribunal had regard to the evidence before it. Whilst the Applicant has identified an area of discrepancy in the evidence of Gamon McLellan to this Tribunal in July 1998 and that given by him in July 1999 in the case of Jiad v BBC Arabic Service, this Tribunal is satisfied that the area of discrepancy is neither material to its decision as promulgated not would it have affected its decision that the Applicant was not subjected to racial discrimination had it been presented in July 1998. In these circumstances the Tribunal accepts the Respondent' submission that the Applicant has not established the evidential discrepancy identified, in the course of this application for review, was either material to or influential in the Tribunal's decision of September 1998. Accordingly, on this ground alone, the Tribunal has concluded that the Applicant's application has no reasonable prospect of success."

16. Central to that paragraph is the Tribunal's finding that the area of discrepancy, relating to Mr Al Kasim, was not material to its decision and would not have affected its decision had the Tribunal known about the new evidence. We shall consider later whether that was a decision which the Tribunal could properly reach.
17. The reason why this Tribunal ordered a full hearing was because of the contents of paragraph 10 of the extended reasons. That reads as follows:

"For the purpose of this decision the Tribunal records that Mr Gamon McLellan did not give evidence. This decision therefore does not extend to making any finding with regard to whether his evidence before this Tribunal in July 1998, as compared to his evidence in the case of Jiad v BBC Arabic Service was either inaccurate or misleading."

18. Mr McLellan did not give evidence because the Tribunal concluded that the review had no reasonable prospect of success. No doubt if they had decided that it had a reasonable prospect of success, then the Tribunal would have heard from Mr McLellan and the others whose statements were before the Tribunal.
19. Mr Short submits that paragraph 10 must mean that the Tribunal had decided not to reach any decision as to whether Mr McLellan had given deliberately misleading evidence in paragraph 7 of his statement.
20. If the Tribunal meant to say this, that would be quite inconsistent with paragraph 7. The Tribunal was being asked to review the case because McLellan had given perjured evidence. The Tribunal makes it clear that Mr McLellan's evidence on this point was not perjury but a discrepancy, that it was not material and that it would not have affected its decision.
21. If the Tribunal had reached the conclusion that Mr McLellan was, or may have been, lying, it is in our judgment inconceivable that the Tribunal would have reached the conclusions which it reached in paragraph 7.
22. We were told during the course of this hearing that paragraph 10 was included because of a request made to the Tribunal by Mr Goulding for the BBC. We suspect that what Mr Goulding wanted the Tribunal to make clear was that it was not finding that Mr McLellan was a person who had lied.
23. Although we have considered paragraph 10 very carefully and although we have to accept that it is badly expressed we are firmly and unanimously of the view that nothing in paragraph 10 was intended by the Tribunal to detract from its findings in paragraph 7.
24. Thus we turn to whether or not the conclusion in paragraph 7, on the material available to the Tribunal, was a conclusion which it could have properly reached.
25. In addition to the statements to which we have made reference, the Tribunal also had before it (which we have today) a Minute of the meeting of the selection panel on 24 October and 4 November 1994. Apart from a reference to the fact that Mr Al Kasim had been interviewed but had withdrawn his application before the decision had been made, the Minutes could only, at their highest, have acted to jog the memories of the four persons present. The Minutes do not deal with the issue that is dealt with in the four statements.
26. Mr McLellan explains in paragraph 4 of his statement that he had spent some 8 working weeks in 1998 attending Tribunal hearings involving employees of the BBC in the Arabic Service. He describes in paragraphs 5-6 the history of the statement, of which paragraph 7 formed a part.
27. He says in paragraph 6 that this was a late amendment and that he had spoken with Hassan Muawad. Mr Short submits that the Tribunal should have reached the conclusion that the two of them were "putting their heads together", in effect, in a dishonest manner. One must bear in mind that the events which Mr McLellan was describing were events that had taken place some three years before. We take the view that no reasonable Tribunal could have drawn an adverse inference from the fact that the two of them had spoken together.
28. In paragraph 6 Mr McLellan sets out the crucial paragraph 7 of his earlier statements and continues in the following paragraph:

"I checked with Hassan as to which of the two boards it was where Faisal had been selected. He confirmed to me that it was the earlier board and we both thought it had been in April 1995, which was the date I included incorrectly in my statement."

Mr Short, rightly, takes no point on the discrepancy in the date between 1995 and 1994.

29. In paragraph 8 Mr McLellan writes:

"I was writing the statement in 1998 and I was referring to matters which had taken place more than three years earlier. In addition to this, I was under some pressure in trying to do my job as Head of the Arabic Service and deal with the myriad of applications which had been received and attend Tribunals on a fairly regular basis."

30. In paragraph 9 he writes:

"At the time I added the detail about the board, I was working in the evening after returning from one of the other cases, and it would have been difficult to have checked the information with the records which exist in different departments of the BBC World Service. I had spoken to Hassan about it, and his any my recollections seemed to be similar. I had no intention of misleading the Tribunal. At the time I believed the information I included in the statement was accurate."

31. In paragraph 10 he sets out what happened in the case involving Dr Jiad and his realisation that the information which had been given to Dr Jiad in the Race Relations Act Questionnaire was more accurate.
32. After Dr Jiad's hearing, being concerned to establish the precise dates and to follow up the discrepancy between the information in the Race Relations Act Questionnaire in the Dr Jiad case and what he had said in his statement, he went back to the BBC and made further enquiries.
33. Ultimately the file containing the Board Minute was found. It was that and the subsequent enquiries which led Ms Youngson, acting in the best traditions of the legal profession, to send the letter to Mr Elabed, to which we have already made reference.
34. Paragraph 13 of Mr McLellan's statement reads as follows:

"As may be seen from the statements of the other members of that selection board – Hassan Muawad, Jeff Phillips, who was the Regional News Editor, and Anne Dent, who was our Personnel Officer, and the Chairman of the Board – Faisal Al Kasim had been a candidate and the Board's unanimously agreed first choice. However, before the final decision and the promulgation of the result in the formal Minute, Faisal withdrew his application. He did this, I believe, by telephone, because, as I said in my statement, he had been offered and decided to accept a more lucrative job as a news presenter in the BBC Arabic Television Service, which had started earlier that year (1994). As I said in my statement, after the closure of the station in 1996, he went on to present the news in an international satellite television news station, where he has been very successful."

35. In paragraph 14 Mr McLellan writes:

"I have remembered accurately that Faisal had been our preferred candidate and that he did not take up the position because he chose to accept another job. The Board took place on 24 October and 4 November 1994, rather than April 1995. He was not formally offered the post because of the withdrawal of his application before we could make the formal offer. He was, however, the Board's preferred candidate. Had he not withdrawn, he would have been appointed."

36. In paragraph 15 Mr McLellan apologised for the inaccuracy and makes this point:

"Had I remembered accurately, I would have been satisfied to explain that Faisal had been our first candidate. The point I sought to make remains valid, namely that the BBC's preferred candidate at the Board was the Syrian."

37. In paragraph 3 of her statement Anne Dent, the Chair of the Board, writes:

"I recall that Faisal Al Kasim was interviewed on the first day and was an outstanding candidate. He was Markedly better than all the others we saw. It was a very easy unanimous decision that he was the first choice of the Board."

38. In paragraph 4 she writes that before the final decision was taken, Faisal informed Hassan Muawad that he had been offered this other job and that he wished to withdraw his application.
39. In the last sentence in paragraph 5 Anne Dent writes:

"Had Faisal not withdrawn his application, there is no doubt that he would have been appointed as the Senior Producer following that Board."

40. Jeffrey Phillips writes in paragraph 2 of his statement that Faisal Al Kasim was:

"…an outstanding candidate".

41. In paragraph 3 he writes:

"I have recently re-read a copy of the Board Minute and have seen that it was noted that we selected Fouak Razak. I have also seen that it was because Faisal Al Kasim withdrew his application before the final decision. Had he not done so Faisal Al Kasim would have been the candidate appointed. He was, without doubt, and this was the unanimous view of the Board, the best candidate we saw."

42. Finally Hassan Muawad in his statement says that Faisal was by far the best candidate and that had he not withdrawn the application, he would have been appointed Senior Producer.
43. We turn therefore to the question which we posed in paragraph 24. Having regard to all the material which we have set out, we have no doubt that the conclusions reached by the Tribunal in paragraph 7 could not possibly be described as perverse and in those circumstances this appeal fails.