DR Y N AWAD v ARAB NEWS NETWORK [2000] UKEAT 718_99_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 718_99_2711Case No Appeal No. EAT/718/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR Y N AWADAPPELLANTARAB NEWS NETWORKRESPONDENT
Before
His Honour Judge H Wilson Mr P R A JacquesDate 27 November 2000
[1]APPEARANCES For the Appellant The Appellant in person For the Respondents MR A ZIMUTO of Counsel Instructed by: Messrs Montague Lambert & Co Solicitors 37-38 Haven Green Ealing London W5 2NX JUDGE H WILSON This has been the final hearing on full argument of the Appellant's appeal against the decision of the Employment Tribunal sitting at London North that his complaint of direct racial discrimination failed, and that his complaint of racial discrimination by way of victimisation was out of time and that it was not just and equitable to extend that time so that the Employment Tribunal had no jurisdiction to consider that complaint.[2]Originally, the Applicant had filed an application complaining of breach of contract, discrimination, victimisation and constructive dismissal, and he says, in effect, that he was frozen out by the treatment he received when he was working with the Respondents.[3]In their appearance, the Respondents claimed that the Applicant was a freelance worker, and was not in full time employment. There were various issues before the Tribunal, one of which was to deal with the application by the Appellant that the Notice of Appearance should be struck out for failure to comply with an Order for Directions. The Tribunal found that complaint was not made out and that the appearance should stand.[4]In the extended reasons they stated that the issues for determination had been identified first as a complaint of discrimination, on the grounds of race, because the Respondents did not give the Appellant a written contract as agreed, and stopped him from working in the Newsroom. Secondly, that Mrs Mohtadi had victimised him. They had both previously worked at the BBC and the Appellant had brought a discrimination claim against the BBC. The Appellant claimed Mrs Mohtadi victimised him because of that complaint which he had earlier brought.[5]In the Particulars, which have been supplied by the Respondents following the Order for Directions, they had claimed that the nature of the contract with the Applicant was a contract for the provision of services. They referred to a number of invoices from the Appellant which had been paid, together with a statement from the purchase ledger summarising those payments. In other words, the Respondents produced evidence of a contract for services, but not for service.[6]The Tribunal found that the Appellant had started to work for the Respondents on 1 May 1997. He contradicted his evidence in chief, apparently, and was unable to provide a copy of an agreement, setting out an offer or employment, as was provided for other members of staff. He also told the Tribunal that he was not paid for 18 months, but did not complain, because he did not want to rock the boat.[7]The Tribunal found as a fact, on the balance of probabilities, that no offer of a contract was made to Dr Awad, and that no such contract of employment was ever entered into. They found that it was not an issue that he had initially worked in the Newsroom until July 1997, and the Tribunal had before it a number of invoices indicating that he was paid £100 per translation. They point out that Dr Awad produced no bank statements, indicating what payments he had received, and that the evidence was that the payments had been for piecework with regard to all the payments. The exception was one for £1000 which he said was in lieu of his salary. He stated that when his contract was signed he was given arrears, but there was no corroborative evidence of that, and the Tribunal repeated that it did not accept that any agreement had been entered into.[8]There was further evidence and further findings of fact concerning the piecework rate of £100 a translation, and there was a finding concerning the letter of 5 August 1998, in which the Appellant raised a number of issues. It is quoted in paragraph 14 of its decision:
"Following receipt of that letter the Respondents did not allow Dr Awad to work for them again"
[9]The Tribunal then sets out the law relating to the two complaints under The Race Relations Act 1976 of direct racial discrimination and racial discrimination by way of victimisation which are made by the Appellant on the case which he put before the Tribunal. So far as the latter was concerned, the Tribunal directed itself that the Appellant had to show a cause or nexus between the protected act which, in this case, was his complaint to the Employment Tribunal against the BBC, and the less favourable treatment alleged against Mrs Mohtadi.[10]The conclusion that the Tribunal reached was based upon a number of matters, amongst which were that he worked in the Newsroom only between May and July 1998 and there was no documentation to support his assertion that he was working there under a contract of employment. The Tribunal said that they found his explanation of working for nothing improbable, and indeed incredible, because he would not work without pay if he had had a contract of employment. They found that there was no evidence from which they could draw any inference that a contract of employment did exist. The only evidence that the Tribunal had was that he was working in the Newsroom from May until September 1997 and thereafter, on a freelance basis, from time to time.[11]The Appellant said that he was discriminated against in being stopped from working in the Newsroom, and cited 6 non-Sudanese nationals as his comparators. However, he provided no evidence of any less favourable treatment afforded to him in comparison with those six named individuals, and the Tribunal therefore found that he had not discharged the burden of proof upon him of showing that he had received less favourable treatment than others.[12]The same went, so far as a causal link was concerned, with regard to his complaint of direct racial discrimination by way of victimisation. The Tribunal found that that complaint failed because there was no explanation why the Originating Application was so much out of time and they also found there was no just or equitable reason for extending the time.[13]Mr Zimuto has appeared on behalf of the Respondents today, and the Appellant has conducted his own case. He has submitted that the Tribunal should have regarded the letter of 5 August as a protected act, in which case, his complaint of racial discrimination by victimisation would have been in time, and he also submitted that the failure to give him a contract for the work being done was discriminatory.[14]Mr Zimuto, on behalf of the Respondents points out that case put by the Appellant to the Tribunal was that Mrs Mohtadi had victimised him in the context of day to day work. He said, however, that it was plain that he was paid only on invoices, and therefore he was not given any contract of employment, and that the:
"spin put on things by the Appellant today was not the way in which the matter had been put to the Tribunal"
So far as a continuing act was concerned, there had to be shown a policy or practice, and that had not been established by the Appellant.[15]In those circumstances, on the cases put by the Appellant and the Tribunal, the questions which have been fully argued before us today did not arise, and the answers are therefore irrelevant. If we are wrong about that, and the Tribunal should have considered whether the alleged victimisation after the letter of 5 August was a continuing act, so far as the BBC and Mrs Mohtadi were concerned, and whether there was discrimination on grounds of race, because of failing to give him a contract, on their findings of fact.

(e) and (f) of the extended reasons:

"22 (e) There is no evidence before the Tribunal from which we can draw any inference that a contract of employment paying Dr Awad a salary of £30,000 existed. The only evidence that we have is that Dr Awad was working in the Newsroom from May until September 1997 and thereafter, on a freelance basis from time-to-time. (f) Dr Awad says that he was discriminated against in being stopped from working in the Newsroom. He cites six non-Sudanese as his comparators. However, he has provided no evidence of any less favourable treatment afforded to him in comparison with these six named individuals. Neither do we have any evidence as to how these six individuals came to work in the Newsroom, or how long they remained there. Dr Awad has not discharged the burden upon him of showing that he received less favourable treatment than others."
They would also inevitably have found no discrimination on grounds of race, because the evidence was that the payments had been for piecework - see also, and again, paragraphs 22 (e) and (f) of the decision. Accordingly, their conclusions would inevitably have been the same and this appeal must be dismissed.