DR Y N AWAD v BRITISH BROADCASTING CORPORATION [1999] UKEAT 1344_98_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1344_98_2206Case No Appeal No. EAT/1344/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR Y N AWADAPPELLANTBRITISH BROADCASTING CORPORATIONRESPONDENT
Before
His Honour Judge Peter ClarkDate 22 June 1999
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MS P ROBERTSON (of Counsel) Instructed By: Miss J Youngson Solicitor Litigation Dept BBC White City 210 Wood Lane London W12 7TS JUDGE PETER CLARK: This is a directions hearing held to consider the Respondent, the BBC's, application for an order for Chairman's Notes of Evidence. The background is as follows. Dr Awad is a British National born in Sudan. He brought a complaint of discrimination and victimisation on racial grounds against the Respondent for whom he worked in the Arabic section of the World Service Radio. A complaint of unfair dismissal was later withdrawn.[2]The issues in the case were identified at an Employment Tribunal directions hearing held on 26 November 1997. The third of those issues was formulated thus: (3)(a) Whether the Applicant was employed by the Respondent within the meaning of the RRA.(b) Whether the Respondent unlawfully discriminated against the Applicant on the grounds of his nationality by taking disciplinary action on 2 July 1997 and failing to investigate the case in accordance with its own disciplinary procedure and giving no right of appeal, whereas, in the case of other persons dealt with at the same time of different nationality, the Respondent did deal with them properly, contrary to sections 1(1)(a) and (4)(2)(c) RRA."[3]The substantive hearing of the complaint took place before a Tribunal sitting at London North on 6-10 July and 27 August 1998. By a decision with extended reasons dated 17 September 1998, the complaint was dismissed in its entirety. Dealing with the third issue, the Tribunal found that the Appellant was an employee of the Respondent within the meaning of section 78 of the Race Relations Act 1976; however, the Tribunal also found that the Appellant was not a "member of staff" for the purposes of the application of the BBC disciplinary procedure, including the right of appeal.[4]As to the question under Issue 3(b), the Tribunal dealt with that matter at paragraph 25 of their reasons. By way of background, their factual findings were that on 2 July 1997, the Appellant attended a "formal interview along the lines of the BBC's disciplinary procedures" held by Mr McLellan, Head of the Arabic service, following a memorandum dated 1 June 1997, written and distributed by the Appellant, complaining of Egyptian dominance in the Arabic Service. The upshot of that interview, confirmed by letter from McLellan dated 4 July, was that the Appellant would be offered no further work for the Arabic Service, and indeed he was barred from the premises. The Appellant sought to appeal internally against that decision, but he was informed by letter dated 9 July from Mr Dawes, Personnel Manager in the World Service, that the BBC appeals procedure was only available to members of staff, not those, such as the Appellant, engaged on a freelance or casual basis.[5]However, he was offered a meeting with Mr Barry Langridge, Head of Region. The Appellant did not take up that offer and it was the Respondent's evidence that had the Appellant been a member of staff, entitled to an appeal hearing, that hearing would have been taken by Mr Langridge.[6]Against that background the Tribunal make the following findings in paragraph 25 of their reasons:(1) The decision not to accord the Appellant the full rights of BBC's disciplinary procedure did not cause the Appellant to suffer a detriment by reason of his ethnic group.(2) He was not entitled to a disciplinary hearing, not being a member of staff.(3) Although not given a right of appeal, the Appellant was invited to write to the person, Mr Langridge, who would have chaired such an appeal.(4) In these circumstances there was no detriment to the Appellant, but if there was it was entirely justified by reasons other than his race or ethnic group.[7]The Appellant entered an appeal against the Tribunal decision by a Notice running to 16 pages dated 22 October 1998. The points which he took were many and varied.[8]The appeal came on for Preliminary Hearing before a division presided over by Judge Levy QC on 24 March 1999. In a judgment delivered on that day all grounds of appeal were dismissed save for one issue, which was not clearly identified in the Notice of Appeal.

(b) below, the Judge said this at page 2 C-D of the transcript:

"We have carefully looked at the findings of the Tribunal and we have found it difficult to see, from the four corners of the decision, why this issue was resolved as against Dr Awad. It may well be that it is found in paragraph 25 the answer to the question, but it does not deal in any detail at all would the position of other persons. On the ground of appeal that the Tribunal may not properly have considered that question ("the Appeal issue") we think that this matter should go to a full hearing."
That single issue was translated into an order (the Preliminary Hearing Order) dated 24 March 1999 in these terms:
"The Tribunal orders that the Appeal be allowed to proceed to a full hearing solely on the ground that the Employment Tribunal may not properly have considered the issue set out in paragraph 3(3)(b) [sic] of their Interlocutory Decision dated 3 rd day of December 1997 in accordance with the Judgment of the Employment Appeal Tribunal"
[9]The Appellant was directed to lodge a draft amended Notice of Appeal limited to that single issue and he duly did so. Having been served with a copy of the order and judgment the Respondent's solicitors wrote to Employment Appeal Tribunal on 27 April 1999 seeking clarification of the question which was to be determined at the full appeal hearing.[10]That letter led to a resumed Preliminary Hearing before the same division of this Tribunal held on 7 May 1999. As a result of that hearing the original Preliminary Hearing Order was amended to read, so far as is material, as follows:
"The Tribunal orders that the appeal be allowed to a full hearing on the ground that the Employment Tribunal erred in holding that following the Respondents taking a decision on the 2 nd day of July 1997 not to offer the Appellant further work the Appellant did not suffer a detriment by reason of his ethnic origin by the Respondents refusing thereafter to permit him to appeal through its disciplinary procedure from such decision"
. Following receipt of the amended Preliminary Hearing Order, the Appellant lodged further amended grounds of appeal (the second amended grounds), and the Respondent applied, by letter dated 27 May 1999 for Chairman's Notes of Evidence in the following terms:
"I would be grateful if the Tribunal would make a Directions Order for the Chairman's Notes to be made available to the extent that they refer to comparators cited by Dr Awad as being treated differently in relation to his Appeal."
[11]It will, of course, be a matter for this Appeal Tribunal at the full hearing to identify the questions of law and findings by the Tribunal on Issue 3(b) below. However, for the purpose of this directions hearing I will identify them as follows:(1) was the Appellant treated by the Respondent less favourably than they treated or would treat another person of a different racial group in the same or relatively similar circumstances?(2) if so, was that treatment meted out on racial grounds?(3) if so, did the Appellant suffer a detriment?[12]The first question requires a comparison to be made. I note from his second amended grounds of appeal that the Appellant seeks to compare himself with the following individuals. Nazil Hijazi (Palestinian) and A Saafeen (Palestinian) to whom, he contends both the full BBC grievance and disciplinary procedures were applied, and Jamil Abid (Syrian), to whom the grievance procedure and Mr Hermassi (Algerian) to whom the full disciplinary procedure, were applied.[13]It is the Respondent's case, set out in paragraphs 7-8 of their Answer, that each of these four individuals was a "member of staff", and therefore entitled to be dealt with under the contractual grievance/disciplinary procedure. In these circumstances it is contended that they are not true comparators for the purposes of the comparative exercise under section 1(1)(a) of Race Relations Act 1976.[14]It seems to me that the Tribunal did not expressly deal with those alleged comparators at paragraph 25 of their reasons. In these circumstances it is necessary to know the evidential position for the purposes of determining the appeal issue. Having heard submissions from Miss Robinson and Dr Awad there seems to be no difference between the parties as to the need for Chairman's Notes to deal with this point.[15]Accordingly I shall direct that the Chairman, Mr Rabin, be asked to supply his Notes of Evidence limited to the evidence of Gamman McLellan and Jeff Dawes and the Appellant as to whether the four individuals, Nazil, Hijazi, A Saafeen, Jamil Abid and Mr Hermassi were or were not "members of staff" as that term was applied by the BBC, and whether or not they were granted a disciplinary appeal hearing. A copy of the Appellant's second amended grounds of appeal and the Respondent's Answer together with a copy of this judgment should be forwarded to the Chairman with this request for his Notes.