Awad v British Broadcasting Corporation [1999] UKEAT 1344_98_2403

EAT

Awad v British Broadcasting Corporation

[1999] UKEAT 1344_98_2403 · 1999-03-24

JUDGE D M LEVY QC :

This is the preliminary hearing of an appeal by Dr Y.N. Awad from a decision of an Employment Tribunal sitting at London (North) between 6 and 10 July and on 27 August 1998. At that hearing Dr Awad appeared in person and the Respondent, the BBC, appeared by Counsel. The unanimous decision of the Tribunal was that the Applicant was not discriminated against, or victimised by reason of his ethnic origin or nationality. The Tribunal dismissed his application.

From that decision Dr Awad's Notice of Appeal was received by this Tribunal on 16 November 1998. It is a long document of some 16 pages, essentially raising three points:

"It is my appeal that the Industrial Tribunal has erred in (a) interpreting the law (b) applying the law to the case (c) reaching a decision that no reasonable Tribunal could reach."

There was an issue in it of bias which led to Dr Awad being asked to swear an affidavit in accordance with this Tribunal's rules, which he did on 26 November 1998. That was answered by the Tribunal by a letter dated 29 December 1998. The Chairman commented on it by saying that:

"... the Tribunal considered all the evidence and all the submissions, both written and verbal, very carefully. The Tribunal did prefer the submissions of the Respondent, which is why it found against the Applicant."

It is clear from the Extended Reasons and indeed, from other documents which Dr Awad put before us, in two lengthy bundles produced for this hearing and received by the Employment Appeal Tribunal only on 23 March 1999, ie yesterday, that there were three issues before the Tribunal which are set out on page 2 of the Extended Reasons. There had been a fourth one at the interlocutory hearing, that one had been withdrawn. One of those issues was this:

"3 (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) of the Race Relations Act 1976."

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 there is found in paragraph 25 the answer to the question, but it does not deal in any detail at all with the positions of other persons. On the ground of appeal that the Tribunal may not properly have considered that question, we think this matter should go to a full hearing.

On all other matters raised in Dr Awad's Notice of Appeal we are satisfied that there is no case to go forward. Dr Awad has addressed us at some length, by reference to a separate skeleton argument, in addition to his Notice of Appeal this morning. On the points which he has raised, we are satisfied that he has failed properly to understand the difference between having certain rights as a person, if he is not to be racially discriminated if he is in the employ in any sense of the BBC, and the rights of a full employee of the BBC under the Employment law. That failure to appreciate has led to him making a number of submissions which were simply not open to him and objecting to findings of the Tribunal, which were findings of fact, which the Tribunal were entitled to make.

In our judgment, on the matters raised by Dr Awad in all the other grounds of his Notice of Appeal, they are ones which have no hope of success if the matter goes to a full hearing and therefore we will not allow the appeal to go forward on any other grounds.

As we have said, the Notice of Appeal runs to some 16 pages. In our view the only issue to go forward to a full hearing is that which we have identified, which it is difficult to find within the 16 pages of Dr Awad's document.

What we will therefore do is to allow Dr Awad to put in a Notice of Appeal limited to this one point, on which the BBC will be entitled to put in a Respondent's Notice. It will be a matter for the full hearing as to whether the amendment should be allowed to go forward in the form in which Dr Awad has it.

It may be that a Directions Hearing may be necessary, but Dr Awad must put in an amended Notice of Appeal within 21 days on the one point which we have identified. Unless that is done the appeal will be dismissed at that stage.