MR J ELABED v BBC ARABIC SERVICE & OTHERS [2001] UKEAT 0419_00_0507

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0419_00_0507Case No Appeal No. EAT/0419/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J ELABEDAPPELLANTBBC ARABIC SERVICE & OTHERSRESPONDENT
Before
Mr Justice Hooper Mrs T A Marsland Mr R N StrakerDate 5 July 2001
[1]APPEARANCES For the Appellant MR A SHORT Solicitor Messrs Thomas Watts & Co Solicitors 19-21 Kensington Church Street Kensington London W8 4LF MR JUSTICE HOOPER For reasons which we shall now give, we are unanimously of the view that there are no arguable grounds which would justify this Tribunal sending forward this matter for hearing by a full Tribunal and in those circumstances this appeal is dismissed.[2]This is an appeal against the unanimous decision of the Employment Tribunal held at London North on 13 January 2000. By that decision the Appellant's claims of race discrimination against all three Respondents were dismissed. We start with the background to these claims, as set out in the extended reasons of the Employment Tribunal:
"2. The Applicant had previously been employed by the First Respondents on a two-year fixed term contract as a producer commencing on 4 April 1994. In November 1995 the Applicant was notified by letter of the Respondent's decision not to renew the Applicant's fixed term contract on its expiry and on 25 January 1996 reasons for that non-renewal were given to the Applicant. In the letter of that date Mr McLellan, on behalf of the Respondents stated that there were concerns about his performance but also his interpersonal skills and his ability to work effectively with a creative team under pressure. As a result of that rejection the Applicant issued proceedings at the Employment Tribunal. 3. On 8 July 1996 the Applicant applied for a post with the Respondents following an advertisement in the Guardian on 17 June 1996. His application was rejected and he made a further application to the Employment Tribunal in regard to that rejection. 4. He made a further application on 21 May 1997 to the Respondents for a post that was advertised in the Guardian on 12 May 1997 and that was rejected by the Respondents and he made a further application to the Employment Tribunal. Those three cases came before the Employment Tribunal over a period of 12 days commencing on 13 July 1998 terminating on 31 July 1998. The unanimous decision of that Tribunal was that the Applicant's claim of race discrimination failed. The facts on which the Tribunal relied are well set out in that decision and the decision was before this Tribunal. The matters of which the Respondents relied were explored in full and the question of his interpersonal skills with his colleagues was further explored. At the conclusion of the hearing, having considered all the facts and the law, the Tribunal was satisfied that the Respondents would have dealt with any other person of whatever race or gender, who presented the same difficulties as the Applicant, in exactly the same way and therefore the Applicant was not subjected to less favourable treatment. For those reasons the Applicant's complaint of race discrimination failed. 5. The Applicant appealed to the Employment Appeal Tribunal and the appeal was rejected by His Honour Judge Wilkie, Mr Manners and Mr Lambert, in a judgment given on 14 December 1999."
[3]When the Employment Tribunal rejected those claims it gave, amongst its reasons, the following reason: 27. "The Tribunal is satisfied that the Respondents would have dealt with any other person of whatever race or gender, 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 reasons expressed by Mr McLellan in his letter of 26 January 1996 for not renewing the Applicant's fixed-term contract of employment are accepted by the Tribunal as the true reasons for not doing so. Further, the Tribunal is equally satisfied that when considering the Applicant's employment applications in 1996 and 1997 the Respondents were entitled to have regard to their previous experience with the Applicant and, having done so, to reject his applications. To do so was not to discriminate against the Applicant or to treat him less favourably by reason of his race but was to adopt a pragmatic, realistic and reasonable approach which any reasonable employer, given the same circumstances, would have done. The Tribunal has unanimously concluded that there are no inferences that can be drawn that there was race-based discrimination."[4]The Employment Tribunal in the case with which this case is concerned, had before it two claims of alleged discrimination. The first arose out of an unsuccessful application for a post in the Arabic Service, which the Appellant made in December 1998. That application was refused by letter dated 26 March 1999. The Tribunal held that the claim made in respect of that unsuccessful application was out of time and refused to extend the time. There is, sensibly, no appeal from that conclusion.[5]The facts of the present claim are set out in paragraphs 19, 20 and 21:
"19 The facts relating to the present claim. (1) On 10 May 1999 the BBC World Service advertised for a post of a journalist producer and on 3 June the Applicant made his application setting out his experience and his qualifications. By a letter dated 7 June from Mr McLellan the application was rejected and Mr McLellan informed the Applicant that he did not propose to put his application forward for shortlisting. He stated that the reasons for what was set out in his letter to him of 22 April 1999 in reference to his earlier application. 20. In that letter of 22 April Mr McLellan informed the Applicant that: "
You will recall the reasons which led to our deciding in 1995 not to renew your contract. I accept that it is possible, indeed probable, that oral grammar skills have improved since you left us in view of the additional experience you have gained during your work for ANN. I have considered carefully what you wrote in your application about your reference to improving still further your ability to get on well with your colleagues, whatever the nationality or temperament, and how you believe you are now a more mellow person than when you worked for us. I accept that you believe this in good faith, however, I have a responsibility for maintaining an effective and constructive working atmosphere in the Arabic Service and the Service faces very considerable strains and stresses in the coming year as we are conducting a radical refocusing of the service. During your time with us some improvement was noted in the interpersonal problems you encountered after they were pointed out to you. Later, however, there were further difficulties with colleagues which led to us taking the decision we did in 1995. As you will recall you did not accept that you have an interpersonal skills problem but blamed the difficulties on others. This made it more difficult to manage you. I believe it would be irresponsible of me, as the Head of Department, to allow your application to proceed, given your record of interpersonal problems while you were working with us. 21. Mr McLellan in evidence to us confirmed that those were the reasons why the Applicant was rejected. He further confirmed that the Applicant had been shortlisted for the December job by an independent panel and he had personally removed his name from the shortlist. He further confirmed that he had intervened in this case personally to remove the Applicant's name from the list of possible candidates."[6]We turn, before looking at passages about which Mr Short complains, to the conclusions reached by the Tribunal. In paragraphs 30 and following, the Tribunal set out the submissions which had been made. The relevant statutory provisions are set out and reference is made to the case of King v Great Britain-China Centre .[7]In paragraph 37 the Tribunal wrote:
"We have referred to the case of Glasgow City Council v Zafar [1998] and the principles set out in that decision by Lord Brown Wilkinson. Based on that decision and the Act and from the primary facts that are set out above, we do not find that the Applicant was treated less favourably than the Respondents would have treated any other person, of any nationality, in the same circumstances. We have heard evidence about these matters that had arisen when the Applicant was previously employed by the Respondents and take note that these matters were fully explored at the previous Tribunal hearing."
[8]In paragraph 38 the Tribunal wrote:
"The reason for the Applicant's non-selection in the case that is before us was exactly the same as the reason why the Applicant was not selected for jobs that he had applied for previously, as decided at the previous Tribunal hearing, which concluded on the facts that were before it, which had been presented over a period of 12 days, that the reason that the Applicant was not selected was not because of his race. We similarly therefore find that this claim is dismissed as the Applicant has failed to show that the reason was on racial grounds."
[9]It concluded in paragraph 39:
"We find that the reason for his non-appointment were as stated by Mr McLellan and not because he had brought proceedings before this Tribunal previously."
[10]The Appellant has been represented before us by Mr Short, who, at an earlier hearing of this matter was given permission to amend the grounds of appeal. The grounds of appeal are now very shortly and succinctly stated and may be found set out at 6(a). We are particularly grateful to Mr Short for the help that he has given this Court, not only today, but on the previous occasion. The thrust of his submissions concentrate on paragraphs 25 and 26 of the extended reasons and further, as a second submission, on paragraphs 28 and 29.[11]In paragraph 25 the Tribunal records the Applicant's assertion that he was treated in the way that he had been because of his race. They record Mr McLellan's case that he had intervened and removed the Appellant from the list because of the difficulties that he had had with the Appellant when he had been working during his full-term contract.[12]In paragraph 26 the Tribunal wrote:
"We find it as a fact that the reason why Mr McLellan intervened in this way was because of the difficulties that had arisen previously when the Applicant was so employed with the Respondents and the necessity of maintaining a good team amongst the multi-national workforce who were working with the Respondents."
[13]It is submitted by Mr Short that the Tribunal there failed to go on and consider the crucial question and to ask whether an Egyptian, with whom the Respondent had had the same difficulties, would have been treated in the same way (namely refused an appointment).[14]In paragraph 28 the Tribunal refers to the assertion that there was an Egyptian or Egyptian-Palestinian domination of the Arabic Service and that explained why he was not chosen. The Tribunal went on to say that they found on the evidence that this was:
"without foundation"
[15]The Tribunal stated:
"It is clear that there is a multi-national work force, which appears to have more Egyptians than any other nationality except British, but from the documents before us it is not clear how the workforce was distributed between the nationalities. In the applications for the post those who were recruited it appears were mostly Egyptian or Palestinian/Jordanian. The Respondents had failed to produce in their documents the full list of names of employees in the Arabic Service, as requested by the Race Relations Act Questionnaire with their national origins attached but it is clear from the list that there was before us that they had produced the full list without national origins attached. The Applicant, however, has not raised this evidence before us."
[16]Mr Short submits that it would have been open to the Tribunal to draw an inference from those two facts and the failure to produce the full list, that an Egyptian who had had the same difficulties as the Appellant would not have been treated in the same way as the Appellant. The burden of proof, of course, is upon the Appellant to show that he was treated less favourably.[17]Mr Short criticises, in particular, passages in paragraph 29. In paragraph 29 the Tribunal found as a fact that the Respondent's knowledge of the Appellant gained from his previous employment had been the cause of his non-employment. The Tribunal accepted Mr McLellan's evidence and his explanation. Mr McLellan, it was found as a fact, feared that there would be further difficulties if the Appellant was appointed. The Tribunal also noted that the Applicant had not put before the Tribunal any evidence of the ethnic make up of the staff.[18]In paragraph 29 the Tribunal also sets out the findings of fact made by the Employment Tribunal at the earlier proceedings:
"At the previous hearing the Tribunal had found that the contention that there was an Egyptian or Egyptian/Palestinian domination of the Respondent's Arabic Service was rejected as being without foundation and it further found that the fact that there is not an equal representation of all Arab nationalities was related to (a) The population of Arab countries resulting in differential recruitment. (b) Recruitment has to be affected by where the Respondents can recruit. (c) Recruitment is affected by the number of applications received from persons of different nationalities."
[19]Mr Short has drawn our attention to the earlier decision and, rightly, submits that the Tribunal in this case was wrong in describing these as findings fact. The Tribunal was taking these alleged findings from paragraph 18 of the earlier decision (page 27 of the bundle relating to that decision). It is clear that paragraph 18 contains no findings of fact but contains only the submissions which the Respondent was making. It is unsatisfactory that the Tribunal relied upon findings which had not in fact been made.[20]The Tribunal, however, went on to state:
"The Respondents desire to appoint the best qualified people of the highest quality, irrespective of national origins. We accept the Respondent's evidence that they advertised this particular position in various publications in nine different Arab countries and publications. We therefore conclude that the decision was not influenced by the Applicant's national origin or his residence but solely due to the fact that the Respondents had previous knowledge and experience of the Applicant and made the decision because of the problems that they had encountered due to his interpersonal skills"
[21]Albeit that it was unfortunate that the Tribunal made a mistake in referring to those alleged findings, we are unanimously of the view that the result of the case would have been the same even if that error had not been made. We accept that it might have been better if the Tribunal had specifically directed its mind to whether or not an Egyptian, in the same circumstances as the Appellant, would have been treated in the same way. Nonetheless we have no doubt at all that even if it had specifically articulated that issue, the result would necessarily have been the same. That is clear having regard to the conclusions at the end of the extended reasons, which we have already cited at some length.[22]The Tribunal finding was that this was not a case of discrimination. The sole reason why this Appellant's name was removed from the list was nothing to do with his race but to do with the problems and difficulties that there had been with the Appellant when he was working during his full time contract.[23]Notwithstanding the errors made by the Employment Tribunal, we find no arguable merit in this appeal.