MR J EL A’BED v BRITISH BROADCASTING CORPORATION [1999] UKEAT 1335_98_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1335_98_2306Case No Appeal No. EAT/1335/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J EL A’BEDAPPELLANTBRITISH BROADCASTING CORPORATIONRESPONDENT
Before
His Honour Judge John Altman Miss A MackieDate 23 June 1999
[1]APPEARANCES For the Appellant MR J SWIFT (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS) JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North on dates between 13 and 31 July 1998, totalling 12 in all, which concluded with the decision that the Applicant's complaint of race discrimination was dismissed. It comes before us by way of preliminary hearing to determine whether or not there is a point of law arguable in full before the Employment Appeal Tribunal. The Appellant was engaged by the Respondents on a fixed term contract for two years. At the end of the contract, the Respondents determined not to renew it for reasons relating they alleged to his capability. In due course the Appellant applied twice for posts with the Respondent for which he was not short-listed, they relying, so it appears, essentially on their knowledge of the Appellant and his failure to obtain a renewal of the fixed term contract to which I have referred. The Appellant complained that he had been unlawfully discriminated against thereby on grounds of his race, in particular because he, being a Syrian, was disadvantaged alongside those of Egyptian or Palestinian origin whom he contended were preferred by the Respondents.[2]The whole context of the decision of the Employment Tribunal, it seems to us, was an examination of the basis upon which the fixed term contract was not renewed. At the end of their decision, which because of the length of the hearing, was inevitably a long one, the Tribunal concluded 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 question arises as to whether those words disclosed the reasons of the Tribunal as the rules require them to give. The basis for that conclusion appears then to have followed in two parts. First of all it was said that the reasons set out in the letter of 26 January 1996 for not renewing the fixed term contract were accepted by the Tribunal as the true reasons and secondly it was said that thereafter, the Respondents were entitled to rely upon or at least have regard to that when considering the subsequent job applications. They say a little more about those two aspects of the claim which I need not repeat.[3]In the course of their decision, the Tribunal, having set out the terms of the letter go on to set out their findings of fact, upon which the Respondents relied. In his closing submission on behalf of the Respondent Mr Goulding is quoted in the decision at paragraph 14 as saying that:
"even if the Tribunal does not agree with the Respondents assessment, it is clear on the evidence that the Respondents genuinely relied on those reasons for non-renewal and did not rely on any racially discriminatory reasons."
Mr Swift on behalf of the Appellant argues that in setting out their reasons in what is, bearing in mind the length of the decision, a fairly brief concluding paragraph, the Tribunal did not demonstrate the reasons as to why they came to the conclusion that they accepted the arguments of the Respondents, and why they did not consider that those incidents to which reference had been made did not provide the primary facts from which to infer the racial discrimination contended for by the Appellant.[4]It seems to us, that there are competing arguments. We are greatly indebted to Mr Swift, who has generously given of his time and considerable skill in accordance with the ELAA Scheme to distil the essence of this appeal. The arguments, it seems to us, can be put in this way. The arguments as to discrimination appear to have hinged considerably on whether the Respondents were truthfully stating the reasons for their actions. In those circumstances did the Tribunal go far enough by making a finding of truthfulness, saying that they were the true reasons, or is it arguable that there is a gap in the decision between on the one hand the simple findings of fact as to what happened and on the other the conclusions. Is the gap demonstrated within the decision by asking why was it that the Tribunal went in one direction to adopt the Respondent's argument and decided not to go in the other direction by drawing the inference contended for by the Appellant.[5]It seems to me that those are competing arguments which properly raise an important legal issue which merits argument before a full Tribunal and we have concluded therefore that this matter should go forward. We direct that the grounds of appeal be amended in accordance with the amended grounds dated 23 June 1999 which have been submitted today to be served on the Respondents, that this be listed in Category C for one day, that Skeleton Arguments be submitted not less than 14 days before the date listed for hearing. It does not seem to us that the Herculian task of transcribing Notes of Evidence is appropriate in this case.