MR A HAWWARI v BRITISH BROADCASTING CORPORATION & OTHERS [2000] UKEAT 1486_98_0707

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1486_98_0707

Case No Appeal No. EAT/1486/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A HAWWARIAPPELLANT

BRITISH BROADCASTING CORPORATION & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 7 July 2000

[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr A. Hawwari in the matter Hawwari against the British Broadcasting Corporation & Others. There is quite a history to this matter that needs to be borne in mind. On 17 March 1997 Mr Hawwari lodged an IT1 saying only "I will fax the detail of my complaint next week" but, at that stage, giving no indication of what type of complaint his complaint would prove to be. The case was given a number, the last digits of which were 914/97. On the next day, 18 March, Mr Hawwari sent a letter to the ET, some three pages of typing intending to describe his claim within that first IT1.

[2]Then on 4 October 1997 Mr Hawwari lodged a second IT1 marked "Victimisation" and that had some four annexed pages of explanation of the nature of the claim and that was given a number the last digits of which were 936/97.

[3]On 26 March 1998 there was a directions hearing before the Chairman, Mrs Mason, which dealt with both 914/97 and 936/97. On 24 April 1998 there was a Chairman's letter confirming the directions which had been given on 26 March.

[4]So far as concerned 914/97 the Chairman directed three issues of which (i) was as follows:

"(i) Whether the Respondent unlawfully discriminated against the Applicant on the grounds of his national origin by stifling his career development as described in the Applicant's letter giving particulars dated 18 March 1997, contrary to sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976. The Applicant's case is that, had he been of natural British origin, he would not have been so treated."

As to that issue the Chairman then directed as follows:

" Particulars of the Originating Application . As to issue (i), the Applicant agrees and the Chairman orders him to give particulars as requested in the Respondent's request on/or before 15 April 1998. Alternatively, the Applicant may re-plead the grounds of complaint and if he does so, he must set out each act and fact relied on as amounting to race discrimination giving names and dates as far as possible and stating who was present or involved."

There were also issues clarified then in relation to the other case, 936/97.

[5]Then in six days in August 1998 there was a hearing at London (North) under the chairmanship of Mr P.R.K. Menon. On 16 October 1998 a decision of some 22 plus pages, all close-typed, was sent to the parties covering both 914/97 and 936/97. The unanimous decision of the Tribunal was as follows: "(i) the Applicant's complaint (914/97) of race discrimination [and then the sections of the Act are referred] against the First Respondent fails and it is dismissed; (ii) the Applicant's complaints (936/97) of victimisation [and then again the sections of the Act are referred to] against all four Respondents fail and those complaints are dismissed; (iii) the Tribunal orders the Applicant to pay to the First Respondent one day's costs incurred by all the Respondents in these proceedings, the said costs to be taxed (if not agreed between the parties, at County Court Scale 2), because the Applicant has, in the Tribunal's opinion, acted frivolously, vexatiously and otherwise unreasonably in bringing or conducting these proceedings, within the meaning of rules 12(1) and (3) of schedule 1." [and then there is a reference to the Employment Tribunal Rules].

[6]I should have said that by the time both 914/97 and 936/97 are combined one ends up with four Respondents, firstly the BBC, secondly Mr Martyn Broughton, thirdly Mr Gamon McLellan and fourth Mr Jeffrey Dawes. The Respondents were together represented by one Counsel at the six days of the hearing below. Mr Hawwari was represented by Counsel.

[7]On 23 November 1998 Mr Hawwari lodged a brief Notice of Appeal; at that point paragraph 6 of it said simply this:

"(6) The grounds upon which this appeal is brought: POINT OF LAW PERVERSION INTEREST OF JUSTICE."

But he indicated that he would be seeking to add to those grounds and so he did. He did it first of all with a some four and a half page document which begins with a box headed "Grounds of Appeal: Further Particulars". This particular instrument does not seem to be dated but that was the first amplification and I will deal, in some detail to start with, with the ground marked (1) because when, as I shall later explain, we as a panel heard this matter in October 1999, we were minded to accord some credence to this first ground as appearing to be an arguable ground and so it requires a more detailed treatment. What the ground says is this:

"(1) The Tribunal disabled itself from reaching a proper and/or reasoned decision at the outset of the hearing when the Chairman refused to hear the case as agreed and directed by Mrs T.J. Mason, Chairman of the Interlocutory Hearing held on 26 March 1998, and as stated in her letter of 24 April 1998, which defined the issues of the applicant's originating applications. In case No.

(i) , which the applicant pursued, was …"

And then he quotes the ground (i) which I have earlier read.

[8]On 18 October the appeal came before the same panel as hears it today, by way of a preliminary hearing, but at that stage we did not have any record of Mrs Mason's directions given on 26 March 1998. We did not have the letter of 24 April 1998 and we did not have any comments from the Chairman as to whether and if so, why he had, as Mr Hawwari alleged, refused to hear the case in a manner consistent with Mrs Mason's ruling. We now have further papers than we had then. We can now see that Mrs Mason's reference to the stifling of Mr Hawwari's career was not a reference to some specific allegation of his but was a convenient way of summarising a number of the complaints which Mr Hawwari had made in his letter of 15 March 1997. Moreover, as we have seen, the complaint was a description that still required yet further particularisation which is, no doubt, why Mrs Mason ordered yet further particulars.

[9]On 18 October 1999, when the matter was last before us, the appearance of things was that as the Tribunal had given a direction as to the case having as a principal issue the stifling of Mr Hawwari's career, there could well have been substance in his complaint that that had not been ruled upon because one does not find any reference in the long pages of the Decision in terms directly to the stifling of Mr Hawwari's career as such. But once one sees, as we can now do, that the phrase about stifling of the career was merely a loose summary of a host of complaints, well, then, that form of reasoning is no longer available to Mr Hawwari. He now needs to show some truly relevant heading of complaint advanced by his Counsel at the oral hearing spread over six days but which was deliberately excluded from the Tribunal's considerations by some form of ruling. We have not had that shown to us. Indeed, it has not been shown to us even that any such matter was overlooked, let alone deliberately excluded, and this first head of the Notice of Appeal, as it seems to us, therefore discloses no error of law.

[10]A second head of complaint in the expanded Notice of Appeal is as to the Tribunal's division of matters into matters within and matters without the statutory time bar. Both were considered although naturally those capable of being complained of within the Act were concentrated upon. It is conventional and convenient to take the line which the Tribunal did. Out of time facts, if one can call them that, are examined to see whether they are or might be material to the drawing of inferences in relation to complaints that are within time. "Talk-writing", as it is called, was dealt with at length in paragraph 12 (3) of the Tribunal's decision as a matter of background. "Newsroom Attachment" was also dealt with at length, in paragraph 12 (4), by way of background. I mention these specifically because they are specifically referred to by Mr Hawwari.

[11]Mr Hawwari's submissions as to each, by his Counsel below, were set out in paragraph 20. The Tribunal held that that there was no evidence of race discrimination in relation to "Talk-Writing" (paragraph 21 (f)) and that there was no exclusion of Mr Hawwari because he was an Arab in "Newsroom Attachment" (paragraph 21 (g)). Given that no race discrimination was found, there was no material to assist the Tribunal to infer racial discrimination from out of time conduct and we can see no error of law in the Tribunal's handling of the matter in the way that they did.

[12]Another head of complaint is that the BBC had failed to observe its own guidelines. So far as that might amount to a breach of contract, it adds nothing of value because there was no claim in contract. So far as concerns racial discrimination one can, of course, have broken guidelines without that amounting to racial discrimination. It is not clear from the summary of Mr Hawwari's Counsel's submissions that this point was in fact taken below but even if it was it does not lead to any error of law because, as we say, one can have broken guidelines without there being race discrimination. Broken guidelines could have been a feature leading to an inference of racial discrimination, or tending in that direction, but the Tribunal had the guidelines in mind. As Mr Hawwari said, they quite often make reference to the subject and yet they declined to draw any inference of racial discrimination. That is very much a matter for them; facts are their province and that is a matter of fact and it discloses no error of law.

[13]Next, Mr Hawwari complains of muddle on the Tribunal's part but we must remember that a close analytical approach to Employment Tribunal Decisions is discouraged. So long as the well-known test in the case Meek v City of Birmingham District Council

[1987] IRLR 250

is satisfied that is taken to suffice. Here, in our view, that test is easily passed. Mr Hawwari can see, comprehensively, from detailed and long Extended Reasons, why it was that he lost. There is no error of law that is arguable under that heading.

[14]The next complaint is that too often, says Mr Hawwari, there are conclusions given without adequate or any reasons to support them. However, where there are repeated negatives, for example, that there is no racial discrimination in this area or there is no racial discrimination in that, it is difficult to give further reasons beyond the sort of full enquiry into both foreground and background that one sees in these Extended Reasons. We repeat that the Meek v City of Birmingham test is here satisfied and the "fine toothcomb approach" so discouraged by Russell LJ in Retarded Children's Aid Society -v- Da y

[1978] IRLR 128

CA, is not to be deployed in the search for a ground of appeal. Again, we see no arguable ground of error of law in relation to this part of Mr Hawwari's case.

[15]Next, there is a complaint that statistics were not taken into account as to "Talk-Writing" and that had they been taken into account, they would have illustrated a case in indirect discrimination. The Tribunal, though, did have evidence before it on the subject of how "Talk-Writing" was handled. They had material from which they could conclude as they did. What they said was:

"The essential qualifications for the post is a good level of competency in written and spoken English. It is essential that Talk Writers are able to write in good and clear English. …"

Those involved were not, by any means, exclusively white or British. The Appellant's own case, as advanced by his Counsel, accepted that that was the position. It was said:

"There was evidence of discrimination against Arabs. It was almost exclusively the preserve of whites, apart from two Arabs – Ms Heba Saleh and Mr Tariq Khilafa."

The Tribunal concluded on this particular subject:

"There was no evidence of race discrimination. If there was a preponderance of white British employees in those posts, that was due to the requirement to have a high level of competence in the English language. Arabs were not shut out of opportunities for Talk-Writing. The Applicant wanted to become a Talk-Writer on his own terms (six months secondment), not on the terms offered by Mr Broughton. At least two Arabs – Ms Heba Saleh and Mr Tariq Khalifa, became Talk-Writers."

[16]One can certainly have a disproportionately low level of Arabs, or a disproportionately high level of white or English, without there being racial discrimination and that appears to be what the Tribunal here concluded as a matter of fact. There was evidence to support the conclusion that they came to and, that being so, the conclusion was unassailable in law. How far the claim that Mr Hawwari now advances that there was a case of indirect discrimination was advanced is not entirely clear but certainly the case that was manifestly advanced was dealt with on the evidence and failed.

[17]Next there is a complaint as to sponsorship and this subject was gone into at some length by the Tribunal. The nature of Mr Hawwari's complaints were set out at an early point in the Extended Reasons as follows:

"The Applicant contended that in February 1997 his line manager – Mr Martyn Broughton (white British), the Editor of the Documentaries, Assignments & Business Unit ('DAB') and Mr Gamon McLellan (white British), the Head of the Arabic Service, assisted Ms Fiona Symon (a white British freelance journalist) in her proposals for co-funding or to co-sponsor a deal with the Financial Times which they ought to have known was outwith the BBC guidelines, whereas they put the dampener on the Applicant and discouraged him with regard to his co-sponsorship proposal involving the International Monetary Fund ('the IMF')."

They dealt with it also in a later part where they say:

"The sponsorship complaint in February 1997. The Applicant's complaint is that he, an Arab of Palestinian/Jordanian racial origins, was treated less favourably on racial grounds than Ms Fiona Symon, a white British person."

The BBC had argued:

"The BBC denied the allegations of race discrimination in relation to both claims. As to the first claim, it was contended that Ms Symon had put forward a concrete proposal both in terms of content and financial support, which had to be put up to the Committee for its consideration. In the event, nothing came of her proposal. In contrast, the Applicant had not put forward any concrete proposal; he had had ideas about approaching the IMF. Both Mr Broughton and Mr McLellan had been supportive and had been encouraging, but the Applicant had not gone back to them with any concrete proposal for consideration.."

Counsel for Mr Hawwari below had argued:

"There was management enthusiasm for Ms Symon's ideas. Mr Broughton reluctantly considered the Applicant's proposal. The difference in treatment was due to the fact that she was white and he was Arab."

The Tribunal looked at the matter in some detail in its paragraph 22 (a) and they said:

"There was no comparison of like with like, because the relevant circumstances in Ms Symon's case were not the same, they were 'materially different' within the meaning of section 3(4) of the 1976 Act to those of the Applicant. Ms Symon had made a modest concrete proposal of co-sponsorship with the Financial Times . That proposal having been put forward by her, it had to be considered on its merits, as the Respondents were obliged to do. By contrast, the Applicant did not put forward any concrete ideas."

And then they explain how he had had an idea in relation to the IMF. They gave some detail and they concluded:

"It was not a case of Ms Symon being treated more favourably than the Applicant. There was no evidence of less favourable treatment of the Applicant on racial grounds vis-à-vis Ms Symon, by the BBC."

[18]The Tribunal held that the Symon's comparison was not really a like with like comparison. They gave reasons, as we have seen, based on the evidence that they had heard. Mr Hawwari is here complaining, in truth, of an adverse finding of fact and that he cannot do because he must know that we can deal only with errors of law.

[19]Next Mr Hawwari complains of the Tribunal's handling of his complaint that Mr McLellan discriminated against him by not reviewing his grade and salary in early 1997. The Tribunal, as a matter of fact, gave what would seem to be a complete answer. They said:

"It was not within Mr McLellan's or Mr Dawes' power to review the Applicant's grade which was the grade common to all the hundreds of Producers employed throughout the BBC."

And they concluded:

"There was no evidence of race discrimination in Mr McLellan's failure to entertain the application to review the Applicant's grade or salary in 1997."

Again, as it seems to us, there was no arguable error of law visible.

[20]Next there is a complaint about inadequate disclosure of documents by the BBC. But in Tribunal cases there is no automatic disclosure and there is no indication that Mr Hawwari ever applied for disclosure of the particular documents or any class of documents of the kind which he now describes as vital and so there is nothing in the point.

[21]Next Mr Hawwari says:

"The Tribunal wrongly exercised its power/discretion to order costs against the applicant. The tribunal failed to have regard to section (7) in rule 12 and also failed to have regard to rule 7 (4) and 7 (6). And a little later on, he says: "

In addition to being a wrongful exercise of discretion/power, the order for costs against the applicant was punitive in nature and effect." And then he quotes a case, the Holloway School case. The order for costs, given that there was a six-day hearing that failed completely, was relatively modest. We have read the decision at the head of the case. At the end of the case they say:

"Having enquired about the Applicant's means to pay, it is the Tribunal's unanimous decision, and the Applicant is Ordered to pay the BBC, the First Respondent, one day's costs incurred by all the Respondents at this hearing, the said costs to be taxed at County Court Scale 2, if not agreed."

[22]All the Respondents had appeared by one Counsel. The costs jurisdiction is a broad discretionary jurisdiction. In order to show an error of law Mr Hawwari has to show that in its exercise the Tribunal omitted to consider something which should have been considered or failed to consider something which should have been considered or that, in some other way, they erred in principle. It is very difficult to show that in relation to such a broad discretion as that as to costs. It has to be remembered that it is the Tribunal that saw and heard the case over the six days. They, better than anyone, can know how it was that the matter was conducted before them and we are unable to find an arguable error of law on the subject of costs. Whether we would have come to the same conclusion is a question that does not arise.

[23]We have now gone, we apprehend, through Mr Hawwari's amended grounds of appeal in the matters, as framed in the pages that began with a boxed heading (to which I earlier referred), but, since then, there was a further document, so-called "Amended Grounds of Appeal" dated 18 October 1999. It will be remembered that the original grounds of 23 November 1998 were very short, four lines. By the time we heard the matter in October 1999 the grounds of appeal had expanded to include the ones headed with the boxed "Grounds of Appeal: Further Particulars" to which we have referred and through which we have been working our way. We were not in terms on 18 October 1999 asked to give leave to amend to include those four and a half pages begun with the boxed heading but we have treated them as the Notice of Appeal. There has been no application further to amend. We have got the 18 October 1999 material before us. Most of it, as indeed Mr Hawwari accepts, is really more by way of a skeleton argument amplifying the four and a half pages begun with the boxed heading but there is one point in it which requires a little further reference and that is that at one point under the heading "Other Grounds of Appeal" Mr Hawwari says:

"The Tribunal's Chairman prevented one of the Applicant's witnesses, (Ms Ravinder Basra) from going outside her written statement. She was shedding some light on the racial attitude of the Respondents (Martyn Broughton and Gamon McLellan). However the Chairman did not allow her to continue and stopped the proceedings."

[24]When evidence-in-chief is to be given by way of Witness Statement it can, of course, be proper to stop a witness from raising points in-chief that might take the opposition by surprise. The whole point of having Witness Statements and exchanging them would be undone if any witness could, at choice, go beyond his or her Witness Statement. Moreover, it can, of course, be right for a Tribunal to stop a witness for irrelevancy or repetition. Merely to say: "She was shedding some light." utterly fails to make a case that the control exercised by the Tribunal in this matter, in relation to that witness, was in any way improper.

[25]Had we been able to see points in the 18 October 1999 expanded version of grounds of appeal which could have become re-amended into a Notice of Appeal, if we had spotted any such grounds with any real prospect of success as arguable grounds of error of law, we would have invited Mr Hawwari to seek formal leave to add them to his Notice of Appeal, but we have been unable to detect any.

[26]Looking at the matter, therefore, as a whole and having gone through, in some detail, the various types of complaint that Mr Hawwari raises, we have been unable to find any arguable error of law and accordingly we must dismiss the appeal even at this interlocutory stage.