DR A JIAD v BBC WORLD SERVICE & OTHERS 1ST HASSAN MUAWAD 2ND GAMON MCLELLAN 3RD [2001] UKEAT 1007_99_0506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1007_99_0506

Case No Appeal No. EAT/1007/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A JIADAPPELLANT

BBC WORLD SERVICE & OTHERS 1ST HASSAN MUAWAD 2ND GAMON MCLELLAN 3RDRESPONDENT

Before

Mr Justice Hooper Mrs T A Marsland Mr R N Straker

Date 5 June 2001

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR JOHN BOWERS QC (of Counsel) Instructed by: Janet Youngson BBC Litigation Dept Room 3538 201 Wood Lane White City London W12 7TS MR JUSTICE HOOPER: At the conclusion of a three day hearing we announced our unanimous conclusion that the appeal failed for reasons which we would give later. Introduction Dr Jiad has been employed as a producer in the Arabic Service of the BBC. World Service from 1991. He remains so employed. He appeals against the decision of an Employment Tribunal unanimously dismissing his claim that the Respondents had unlawfully discriminated against him on racial grounds and had victimised him. The hearing of the application took place over 7 days in July 1999. The decision was sent to the parties on 27 July 1999.

[2]In November 1995 the Appellant applied for a post as a senior producer but was not successful. Three candidates were appointed senior producers. A fourth candidate, Mr Fahmi who is of Egyptian origin, was considered suitable, although there was no established post for him to take up. In May 1997 the Appellant moved from "Features and Music" into Current Affairs. From that date the Appellant has reported to the second Respondent, Mr Muawad who is an Editor and is of Palestinian origin. Mr Muawad in turn reports to the third Respondent, Mr G. McLellan, who was the Head of the Arabic Service. He is a white European.

[3]By an originating application dated 4 August 1998 and filed on 10 August, the Appellant complained of race discrimination and victimisation. The thrust of his claim was that the had been discriminated against and victimised between May 1997 and August 4th 1998. The Appellant's case was that having made a complaint of discrimination against his employer on May 9 1997, he was the victim of victimisation because of "protected acts", namely that complaint and subsequent complaints, and was also the victim of discrimination because of his national origin.

[4]This application is his second to an Employment Tribunal. The first application

[5]The first application, also against the BBC and Mr McLellan, was started in August 1997 and followed the complaint made by the Appellant on May 9 1997. The complaint made on that day, as subsequently developed, was (in large measure) the subject matter of the first application, which was heard over 4 days in April 1998. In his claim to the Employment Tribunal dated August 21 1997, he claimed that he had been harassed by a Mr Mustapha Anwar in May, June and July 1997, that he had been discriminated against on racial grounds and victimised by not being offered a full time pensionable employment on the expiry of his fixed term contract and that he had been victimised by being demoted "from producer, presenter and editor to co-producer" (see page 2 of the extended reasons). According to the extended reasons he had complained in May 1997 to Mr McLellan about the move from Features and Music to Current Affairs and claimed that the move involved demotion and was discriminatory (see pages 5-6 and see also a statement made by Mr McLellan, Respondents' bundle, 143).

[6]In paragraph 8 of its extended reasons, the Tribunal noted the Appellant's evidence of alleged race discrimination and decided:

"We cannot accept that evidence and we therefore conclude that there was no direct evidence of direct discrimination on which we can rely."

In paragraph 10 the Tribunal said they could not find any evidence that the Appellant had suffered harassment. "All the complaints that the Applicant has made against the Respondents and his managers do not substantiate the view that the Applicant has suffered harassment." In paragraph 10, the Tribunal, having set out the Appellant's evidence of psychological pressure, of his claim that he was demoted and advised not to speak to a particular person otherwise his employment would be in jeopardy and of being forced to attend meetings unnecessarily, decided:

"We find there is no basis for a claim of harassment or victimisation from the evidence that was before us."

[7]The Tribunal found that also there was no evidence to support the Appellant's submission that he was victimised "by reason of demotion". The Tribunal did, however, find that he had been both racially discriminated against and victimised by not having being offered full time pensionable employment on the expiry of his fixed term contract. The Tribunal reached that conclusion on the basis of inferences drawn, for example, from the fact (as found) that the Respondent had not properly addressed the Appellant's complaints of discrimination. The Tribunal also relied on what it understood to be the BBC's policy.

[8]That decision was the subject of a successful appeal to the Employment Appeal Tribunal presided over by His Honour Judge Clark by the two Respondents (unreported, judgment delivered 3 February 2000). It was ordered that the matter should be remitted for a fresh hearing. That decision is the subject of an appeal by Dr Jiad to the Court of Appeal. Background to the second application

[9]The background to the breakdown in the relationship between the Appellant, the BBC and his superiors can be seen in documents which were before the Tribunal and to which the Appellant drew our attention

[10]On 9 May 1997 he answered the following question in the 1997-98 annual appraisal questionnaire:

"Is there anyway in which your working relationship with your immediate bosses could be improved?", in the following way: "

Through abolishing the unfair attitudes, removing bias and favouritism". In answer to the question "Any other comments?", he wrote "There are aspects of chronic favouritism and non-appreciation of professional quality and achievement. There are unprofessional practices which need to be addressed effectively" (Appellant's bundle, first part, page 152). Although Dr Jiad told us that the problems had started at about this time, he had complained, in the year before, of the lack of appreciation, fair treatment and protection of his personal and professional rights (page 151).

[11]In June 1998 the Appellant filled in a form for the 1998-99 appraisal (see Appellant's bundle Tab 4, pages 502 and onwards). He complained that he had not had any support from his bosses, that he had been shunned, less favourably treated, stressed, professionally undermined, professionally stifled and harassed and had been the subject of unfair and bias fabrications. He hoped this would be the last appraisal in which bitterness was expressed.

[12]On 15 July 1998 Mr McLellan wrote to the Appellant telling him that Mr Muawad had passed him a copy of the Appellant's appraisal (for the period 1997-98) and noting that the Appellant had requested a follow up meeting (Respondent's bundle page 46). Mr McLellan noted that the Appellant had:

"made certain specific accusations against [Mr Muawad] namely 'personal victimisation and discrimination' and 'fabrication'"

. Mr McLellan suggested that if these accusations are properly to be considered, it would be right for that to be done within the formal grievance procedure. Mr McLellan asked the Appellant whether he wished "to state a formal grievance about the conduct of your appraisal".

[13]On 16 July the Appellant replied (Respondent's bundle, page 47) saying that he was ready to accept a informal meeting but that:

"alternatively a formal grievance procedure might be the proper vehicle to address what I view as unnecessary and unwarranted discriminatory attitudes."

The letter stated that the Appellant and his family had:

"suffered tremendously, to the point of a breakdown, over the last few years due to the discriminatory attitudes I have been subjected to in my work."

We note that the reference to "the last few years" is in conflict with what the Appellant told us, namely that his problems had started when it was decided to move him from Features and Music to Current Affairs in April/May 1997. The letter refers to various principles governing the manner in which appraisals should be carried out. The Appellant states that his objectives had not been set for him until February 1998 and that his set of objectives had been ignored by Mr Muawad, a matter to which we return later. He describes how "very hard" he has worked and that the programmes he has done:

"are ranked the best, by colleagues, in comparison to others in terms of contents, excellent stories and coverage, up ..."

. He writes that his:

"presence, assistance and professional and human conduct have been vital in creating an excellent atmosphere of work to the extent that colleagues were open in drawing comparisons with other senior producers, for interpersonal skills and professional competence."

He then sets out criticisms of the manner in which Mr Muawad carried out the appraisal. He accepted that he had asked Mr Muawad to consider whether he was motivated by an attempt to provoke the Appellant or victimise him.

[14]In paragraph 11 he sets out a number of alleged failures on the part of the other members of the Current Affairs department and says they:

"should have been included in their reports, but Mr Muawad told me he did not do that"

. Sheikh was alleged to have persistently breached the no-smoking policy and lack professional competence. According to the Appellant, there had been complaints about Sheikh's interpersonal skills. Faragallah had shown weakness in his editorial judgment. Sherif had had rows with others and had shown appalling weakness in his translation capabilities. Shokier's performance had shown several points of weakness in translation and production. The Appellant went on to say that in the light of what he had set out in the letter:

"one will certainly infer that there is a deliberate attempt to fabricate negative things, discriminate against me and victimise me."

He wrote that "Mr Muawad made no secret of his bitterness because of my IT [claim]."

[15]On receipt of that letter Mr McLellan wrote to say that, given the nature of the allegations, the grievance procedure would be followed.

[16]On 26th November 1998 Mr Langridge, Head of Region Africa and Middle East, wrote to the Appellant with the results of his investigation into the Appellant's complaint against Mr Muawad "which was mainly about issues around [the Appellant's] appraisal in August this year" (page 281). Mr Langridge found no grounds to uphold the grievance. He said that he felt the appraisal procedure was proper, indeed painstaking. Mr Langridge wrote:

"Your contention that no evidence was given to you of events where you had shown poor inter-personnel skills or adverse reaction to criticisms is not proof. There are examples in the paperwork which could now be put or re-put to you in a reprise of the appraisal which I am now asking Mr Muawad to convene. I do think that the objectives could have been refreshed and re-set and that more information could have been recorded regarding your in-training and development needs. However there is no evidence that these details are discriminatory."

Dr Jiad specifically referred us to the penultimate sentence.

[17]Mr Langridge found no evidence to support the allegation that Mr Muawad had been bitter about the decision of the Industrial Tribunal in April 1998. Dr Jiad cited to us another paragraph in the letter:

"Since the grievance procedure is aimed at resolving conflicts or problems, I am proposing that you have a fourth session with Mr Muawad, aiming towards reassessing your training and development needs and to re-set your objectives."

Dr Jiad submitted that this passage tended to support his claims before the Employment Tribunal. Given the opening words of that paragraph we do not share that view.

[18]The Appellant was told by Mr Langridge that, in his view, the appraisal had been carried out in line with current practice. He accepted (page 282):

"In its wording it could perhaps have been more precise and I believe that your objectives should have, on reflection, been refreshed and not carried over from February."

[19]As to the score of "3" on "Responding to Direction and Advice and Criticism" (a matter to which we return below) he wrote that it accurately reflected the observations of the senior producers and of Mr Muawad. The statutory framework

[20]In giving the judgment of the Tribunal in the first application, His Honour Judge Clark considered the authorities and set out the approach which a Tribunal should take when considering an allegation of racial discrimination under section 1(1)(a) of the Race Relations Act 1976 ("the Act"). Before us both Dr Jiad and Mr Bowers QC for the Respondent agreed, as they had before the Employment Appeal Tribunal on that occasion, that this was the proper approach. In the light of that helpful concession, it is not necessary for us to consider the authorities further. His Honour Judge Clark said that the Tribunal "is required to embark on a four stage enquiry" namely (at paragraph 61):

"(1) Was there a difference in treatment between the complainant and an actual or hypothetical comparator? (2) Was there a difference in race between the complainant and comparator? (3) If so, has the Respondent provided an adequate explanation for that difference in treatment? (4) If not, should the Tribunal draw an adverse inference of unlawful discrimination on racial grounds against the Respondent?"

[21]No complaint was made before us of His Honour Judge Clark's suggested approach in that case to a complaint of victimisation under section 2(1) of the Act (paragraph 66):

"(1) Has the Applicant done a protected act as defined in section 2(1)(a)-(d)? (2) Has the Respondent treated the Applicant less favourably than it treated or would have treated an actual or hypothetical comparator who had not done a protected act? (3) Was the doing of the protected act by the Applicant an effective cause of the treatment complained of? It need not be the sole cause, but it must be a substantial and effective cause of the treatment. …"

[22]His Honour Judge Clark pointed out that, following the decision of the House of Lords in Nagarajan v LRT [1999] I.R.L.R . 572, there is no requirement to show that an identifiable individual was consciously motivated in treating the Applicant in the way complained of. It is enough that an effective cause of that treatment was the protected act relied upon. In this case the Applicant had done a protected act by writing the letter in May 1997 and thereafter by instituting the proceedings in 1997. The speeches in Nagarajan were delivered after the conclusion of the hearing of the matter which we are considering but before the extended reasons were delivered. It is the Appellant's case that the Tribunal did not take into account the decision of the House of Lords and impermissibly held, in accordance with the law as it was understood to be before that decision (see page 5):

"In a finding of victimisation a Tribunal would have to find a motive connected with the race relations legislation."

The preliminary hearing

[23]There was a preliminary hearing on 12 January 2000. Unusually the Tribunal reserved judgment, the hearing having lasted considerably longer than the one hour that is normally set down for the disposal of such hearings. The notice of appeal was 27 pages long and was supported by an affidavit sworn by Dr Jiad. At the end of the oral hearing the Tribunal indicated that in its opinion the appeal raised arguable points of law under what was the Appellant's heading B and reserved its decision on ground A which alleged against the Tribunal bias or procedural unfairness. The Tribunal held that the Appellant had no reasonably arguable case on that ground.

[24]The Tribunal identified three arguable points made by the Appellant (see paragraph 14). The Employment Tribunal had:

"failed to properly consider and further alternatively to explain their reasoning in respect of the claim for victimisation." "

The Employment Tribunal mis-stated the test to be applied in respect of the claim for victimisation" [the Nagarajan point]. The Employment Tribunal had "failed to properly apply the correct legal principles in approach and thus failed to deal properly with the claim for direct racial discrimination." The Tribunal then set out four particular points made by the Appellant. The Tribunal said that it was not practicable at the preliminary hearing to deal with all of the points which were being made by the Appellant and that, in any event, the points were linked to the arguable grounds. The Tribunal concluded "that the sensible and practical course" was to leave these matters to be argued at the full hearing. In paragraph 12 the Employment Appeal Tribunal stated:

"We also made the point to the Appellant that nothing we have said or have decided should be treated as an effective argument against an order for costs being made against him if the Tribunal that hears the full appeal concludes (with the benefit of a closer analysis of the documents and submissions from the Respondents) that the Appellant has acted unreasonably in making points on this appeal as to the underlying facts of this case."

The documents relied upon in the appeal

[25]The Appellant subsequently produced amended grounds of appeal.

[26]The Appellant relied on his skeleton argument at the preliminary hearing and a substantial skeleton argument prepared for this hearing which sets out in very considerable detail his case. He read out most of the skeleton argument and then amplified the argument with reference to documents and in answer to questions from the Tribunal. The skeleton argument makes it clear that the Appellant has a substantial knowledge of the law in the area with which this appeal is concerned. If we may say so, he presented his submissions in an articulate manner and we are grateful to him for that. As the Employment Tribunal said, he is: "both intelligent and experienced and is possessed of an impressive academic background" (page 5).

[27]The analysis of the factual issues raised during the hearing caused us considerable difficulty. In addition to the EAT bundle the Appellant had produced a substantial number of documents in a ring file. The first part of that contained documents numbered from 1 to 347, the second part numbered from 24 to 87. Under Tab 2 there was documents numbered from 90 to 293, Tab 3 included documents numbered from 355 to 468 but many of the page numbers had not been used, Tab 5 went from page 495 to 817 with again many of the page numbers not being used. There was then an unpaginated statement from Mr McLellan. The Respondent had produced its own bundle containing some 347 pages of documents, some of which can also be found in the Appellant's bundle. We were considerably helped when, at our request, the first Respondent produced a core bundle which contained most the relevant material relating to each complaint.

[28]We asked Dr Jiad to go through each of the alleged acts of discrimination/victimisation. We asked him to identify how each act had been "pleaded" in the Employment Tribunal and who were the alleged comparators. To find out how each act had been "pleaded" it is necessary to look at a document entitled "The Issues" (EAT bundle pages 69-70), the Appellant's response to a request for further and better particulars (EAT bundle, page 65) and the original summary of complaints dated 4th August 1998 (EAT bundle, pages 53-54). To discover who were the alleged comparators, it is necessary to look at his witness statement in the Employment Tribunal (Appellant's bundle first part, pages 213-238) and, in particular, his submissions to the hearing (Appellant's bundle first part, pages 239-259). Discrimination and victimisation- the Appellant's approach

[29]It was Dr Jiad's case before us and before the Tribunal that each act upon which he relied justified his complaint both of discrimination and victimisation. In the words of Dr Jiad to the Tribunal (Appellant's bundle first part, page 259):

"The Tribunal is not required to consider separately the question of discrimination and victimisation as they are intertwined."

He cited authority for that proposition. Mr Bowers agreed that that was the proper approach. Dr Jiad relied on the same comparators for both the alleged discrimination and victimisation.

[30]The Appellant told us that, with one exception relating to part of his complaint about "acting-up", the comparators upon whom he relied were members of the current affairs department whose names are set out in a letter to Dr Jiad dated 1 April 1999 (EAT bundle, page 74) and about whom the Respondent provided details. For convenience only, we shall use their last names (noting some inconsistency in the names as used in various documents): Fahmi, Fouqara, Shokeir, Chaich, Faragella, Sheikh, Razek, Abdo. The last four were senior producers. All 8 are of Middle East origin. The Appellant is the only person of Iraqi origin.

[31]Before the Tribunal Dr Jiad made the following submission about the comparators (Appellant's bundle, first part, page 241):

"The comparators are the producers and senior producers in the Current Affairs Unit of the BBC World Service (Arabic), where the Applicant has been working during the material time. It is essential to remind ourselves that the Applicant has been working regularly as an acting senior producer, since July 1997, and well beyond 4th August 1998 until December 1998. The Respondents have stopped using the Applicant in an acting senior producer capacity since that time despite his agreement that he would do that if asked. The Respondents have used other colleagues of other national origins to act up in their original shifts."

[32]In so far as the penultimate sentence is concerned, it became clear during the hearing both before us and the Tribunal, that the Appellant was not used in an acting senior producer capacity because he did not want to be so used. We return to this matter later.

[33]Dr Jiad submitted that the comparator for the "acting-up" complaint (dealt with later) was Mr. K. Fahmi.

[34]The submission continued:

"The respectable Tribunal is kindly reminded that the Editor/Manager of the Current Affairs Unit is Mr. Hassan Muawad (Palestinian/Jordanian) and the senior producers are three Egyptians and one Palestinian as well as an acting senior producer (Egyptian). Staff working in other Units are not comparators because the relevant circumstances are not the same and are materially different. They work in separate independent entities, their managers are different, have their own set of programmes and shifts of work are different."

[35]It is unfortunate that the Tribunal did not list the comparators found by it to be appropriate, albeit that there seems to have been no issue about this. With the exception of the "acting-up" complaint, the Appellant's case was simple - the comparators were the members of the current affairs department. However, it seems clear from its reasons that the Employment Tribunal accepted the Appellant's choice of comparators.

[36]As to the material time for making the comparisons, he wrote in his submissions to the Tribunal (page 241):

"It is essential for the respectable Tribunal to remain focused on the material time of this case. The material time is between May 1997 when the Applicant first complained of less favourable treatment, until 4 August 1998, the date of the originating application to the Tribunal. Any thing that post-dates the application should be disregarded."

[37]He submitted to us that when considering both victimisation and discrimination, the Tribunal ought not to be looking at any events which preceded that period or post-dated that period. As Mr Bowers submitted, that is not the correct approach. It is trite law that a Tribunal considering whether a complaint has, or has not, been made out, is entitled to look at events both before and after that event if to do so would assist them in determining the validity of the complaint. Insofar as the victimisation claim is concerned the same rule applies. However the Tribunal must be more careful when looking at events prior to the date of the protected act, because matters prior to that date may have less probative effect when considering a complaint of victimisation made alleged to have taken place after the protected act. The Tribunal's findings on credibility

[38]Later on in this judgment we reject the Appellant's complaints about the adverse findings about the Appellant's conduct and credibility. It is helpful, at this stage, to set out those findings as a background to our consideration of the various alleged acts of discrimination/victimisation.

[39]The Employment Tribunal said (page 5) that "the Applicant has complained that he has been less favourably treated in almost every aspect of" the year's activities. It went on to say:

"There has been a battle of wills between the Applicant and his line manager, the Second Respondent and the Applicant has insisted that his supervisor meets every demand he might place upon him."

[40]As to the relationship between the parties the Tribunal stated:

"Although the Applicant can be impressive he demonstrated rather vividly during his cross-examination of the Second Respondent that he can be rude, out-spoken and thoroughly oppressive. While an appraisal session can be a stressful time both for supervisor and subordinate some can be more difficult than others. We recognise that the Second Respondent had a very difficult task on his hands and we do not propose to criticise him for what he has written. The form did not envisage that anything more than a summary would be produced. In sharp contrast the Applicant was more respectful to the Third Respondent than he was to the Second Respondent."

[41]The Tribunal held:

"Where there was a conflict of evidence we preferred the evidence given by the Respondents and their witnesses to that given by the Applicant and his witnesses."

We turn now to the alleged acts of discrimination and victimisation. Failure to promote and membership of committees

[42]The first alleged act to which Dr Jiad referred was a failure to promote him. After spending a little time on that alleged act, Dr Jiad accepted that it was not a pleaded issue before the Tribunal and he abandoned it before us. Later in the case, he decided not to proceed with the complaint about the committees ( a fact upon which he was later to rely when the question of costs was being considered). Acting-up

[43]The next issue concerned what was described before the Tribunal as "acting-up". In the list of issues the Appellant described it as "denying him professional actingship". The alleged comparator was Mr Fahmi, the man of Egyptian origin who had been considered suitable for the post of senior producer although there had been no established post for him to take up (see paragraph 2 above). Between November 1995 and March 1997 Mr Fahmi had been employed on a magazine published by the first Respondent. Mr Fahmi joined the Current Affairs Department in April 1997. In January 1998 he was formally "attached" to the current affairs department for nine months as an "acting-up" senior producer with enhanced remuneration. "Acting-up" involves acting as either the Day Editor or Night Editor in the absence of a senior producer.

[44]The first alleged act of discrimination or victimisation in relation to acting-up occurred, so Dr Jiad submitted, in February 1998 when he was denied a "formal attachment" as an "acting-up" senior producer. On 25 February 1998 the Appellant wrote a note to Mr Muawad, with a copy to Mr McLellan, complaining of the financial loss which he suffered when acting-up (Appellant's bundle, first part, page 55). He wrote:

"It would be very supportive and appreciative to consider my duties as acting-up"

. He said "It is unfair if I continue performing acting-up responsibilities without any sort of matching treatment." In reply (page 58) Mr Muawad wrote:

"I would like to say that you are given the rate which is normally given to others who are asked to act from time to time as Editor of the Day/Night. This is fair."

In the last paragraph of his reply, Mr Muawad wrote:

"As you agree, the arrangements is to give you the opportunity to act as senior producer when the opportunity arises. This is in no way a fully fledged acting appointment. However, if you decide that you are no longer interested in taking up this opportunity, we will be happy to stop this arrangement immediately."

[45]In his submissions to the Tribunal (page 249), the Appellant complained that whereas Mr Fahmi was accorded an "actingship" as from January 1998 he was not accorded that status.

[46]The Tribunal dealt with this submission in paragraph 5 of its decision (page 44):

"While Mr Fahmi received a special acting-up allowance, this allowance was triggered by the fact that he had satisfied the Board held in 1995 which the Applicant had not."

[47]In other words, there was a perfectly good reason for distinguishing Dr Jiad from Mr Fahmi. The records show that other producers "acted up" e.g. Sharif, Shokier, Chaich (see Appellant's bundle at Tab 3, pages 355 and following). Mr Bowers also referred us to the statements of Messrs Muawad and McLellan in support of the Tribunal's conclusion.

[48]Dr Jiad complains that the Tribunal did not follow the proper steps as set out in the passages from His Honour Judge Clark's judgment. In the ideal world that should have been done. If it had been done, the first question which the Tribunal would have had to ask itself is whether or not the Appellant's choice of Mr Fahmi as the comparator, was the correct choice. Mr Fahmi was not in the same position as the Appellant. Mr Fahmi had been successful in 1995 when found suitable to be promoted to the post of senior producer (see paragraph 2 above). There would be a strong argument for saying that the comparators were the three members of the current affairs department who were in the same position as the Appellant: namely Fouqara, Shokeir and Chaich. This is supported by section 3(4) of the Act which provides:

"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

[49]By choosing Mr Fahmi the Appellant gains a distinct advantage. Since Mr Fahmi had been accorded an "actingship" and the Appellant was not, it would seem to follow there was a difference in treatment between them and that therefore the Respondent would have to provide an adequate explanation. If the comparators were the three other producers or, perhaps a producer or a hypothetical producer who had, like the Appellant, asked to be accorded an "actingship", then it would be much more difficult to find a difference in treatment. Being fair to the Appellant we shall assume that the Tribunal did accept the argument that the comparator was Mr Fahmi. Nonetheless it is clear that by drawing a distinction between Mr Fahmi and the Appellant, the Tribunal was satisfied that an adequate explanation for the difference in treatment had been provided. Thus we see no merit in this complaint.

[50]The second complaint related to the failure to pay a bonus for acting-up. It is not entirely clear who were the alleged comparators, but it seems it must have been the members of the current affairs department who were not senior producers and who acted up. They were the three others: Shokier, Sharif and Chaich. The Tribunal said:

"Until the end of March 1998 the Applicant received an extra responsibility rate (ERR) of £5.50 per shift. At the end of March the allowance was abolished."

[51]Dr Jiad referred us to a memo written to him on 6 August 1998 by the Manager of the Personnel Information Unit of the BBC. World Service (Appellant's bundle Tab 4, pages 529-530). In that memorandum the writer referred to the withdrawal of the ERR payments and stated that temporary responsibilities may be rewarded by "acting pay" or "through the authorisation of a bonus payment for temporary responsibility." Having earlier referred to the fact that March was the last month in which ERRs could be earned in the Arabic Service, she went on to write:

"In light of your claim that you frequently worked in the capacity of senior producer (Day/Night Editor) I requested the rotas for the period June 1997 to March 1998. It is clear from these records that you have undertaken 76 shifts working at the higher level over the period. I have sought advice from my colleagues on this latter point and will now be speaking to Gamon McLellan with a view to him recommending rewarding your temporary responsibilities."

[52]Although he had undertaken 76 shifts under the system in force until the end of March 1998 he had received some £5.50 per shift. In the light of that letter we asked Dr Jiad how often he had acted-up after the bringing to an end of the ERR. We were able to find 4 occasions only on the documents available to us (Appellant's bundle Tab 3, page 358 and following) in the period up to the 4 August, chosen by the Appellant as the relevant period in which he had been the victim of alleged discrimination and victimisation. Additionally he had acted-up on a few occasions after that. This accords with the finding of the Employment Tribunal in paragraph 10 that:

"After the abolition of ERR he became more reluctant to act-up"

. As to the failure to pay a bonus the Tribunal noted (paragraph 10):

"To qualify for a bonus an employee had to show evidence of exceptional performance which the Applicant was not able to do."

And later (paragraph 48):

"The reasons why Mr Fahmi received a special allowance are set out above as is the explanation with regard to the ERR and the Applicant's failure to achieve a bonus."

[53]During the course of final submissions, the Appellant sought to rely particularly on Shokier as a comparator. He submitted that Shokier had only done one day, in comparison to his four days, and had yet received a bonus. This submission does not appear in the Appellant's documents for the Tribunal. He said that he had raised it in oral argument but could point to no supporting material for that statement. Unless the Tribunal knew the precise circumstances in which Shokier received a bonus, it would not be possible to reach any conclusion. Those circumstances do not appear to have been placed before the Tribunal, a fact which Dr Jiad eventually conceded.

[54]Given the finding referred to above, there is no merit in this complaint. The bleeper

[55]We turn to the alleged failure to provide the Appellant with a bleeper during the Iraqi crisis in February 1998 (Appellant's bundle, first part, page 248). In his statement of the issues the Appellant complained that the Respondent had discriminated against and victimised the Appellant by stifling his career with reference to denying him "portable communication". (page 69) According to his submissions to the Employment Tribunal four bleepers were ordered for current affairs duty Editors in February 1998. He said:

"it was proven that at the time, the Applicant was one of the four duty Editors. The other three were of different national origins (2 Egyptians [including Mr Fahmi] and 1 Palestinian) But for being of Iraqi national origin, and performing the protected acts, the Respondents would not have deprived me of that means of communication."

There was here an issue of fact. It was the Appellant's case that he had never been offered one. It was Mr Muawad's evidence that he had been offered one. The Tribunal made a finding of fact against the Appellant. In paragraph 6 the Tribunal wrote, "when offered one he stated that he did not require it." The Tribunal also returned to the issue of portable communication under its conclusions:

"We did not accept that the Applicant had been deprived of portable communication."

[56]That finding cannot be described as perverse. This complaint therefore fails. Business/duty trips

[57]We turn to the Appellant's allegation of discrimination and victimisation in relation to what were described as "business/duty trips" or reporting trips. These were trips, usually abroad, upon which members of the current affairs department were sent. In his statement of issues the Appellant alleged that the Respondent discriminated and victimised the Appellant by denying him "duty trips". In his response to a request for further and better particulars dated 21 January 1999 (EAT bundle page 65) he had alleged that the discrimination and victimisation consisted of:

"Depriving me from duty trips despite several promises for consideration including the firm one to Cairo by Mr McLellan during a meeting with him on the second week of May 1998."

In his submissions to the Tribunal he submitted that those who belonged to other national origins and those who did not do the "protected acts" were sent on duty trips.

[58]Before the Tribunal there was a list of producers, senior producers and deputy Editors who had been sent on reporting trips between June 1997 and August 1998 (Appellant's bundle, first part, page 301) Although time was spent on that list before us, it must be remembered that only a few of them were the chosen comparators. Some of those who were not comparators had been abroad involved in a series of programmes, necessitating a number of visits. On investigation we discovered that two of the eight comparators claimed by Dr Jiad had not done any business trips during the period relied upon by the Appellant: Abdo and Chaich. It may also be that Sheikh did not go- but we did not hear argument about him. Another, Shokier, had only been to Edinburgh for a few days. Fahmi had only made one trip abroad during the period. The Appellant before us gave an explanation why Abdo and Chaich had not gone on business trips. That explanation does not appear to have been before the Tribunal.

[59]Attached to that list is a lengthy answer from the Respondent about this allegation:

"In answer to a similar question in your Race Relations Questionnaire of 1997, I answered that you had visited Morocco and Tunisia 30 March - 10 April 1997, Morocco 26 May - 3 June 1996, Tunisia 19 April 1995 - 29 April 1995 and Morocco 11 March 1995 - 20 March 1995. I wrote then that 'the frequency with which staff go on reporting trips depends on a number of factors; a) the degree of interest shown by an individual to travel, b) the extent to which travel is relevant or useful to the particular job he/she is doing in a unit, c) the extent to which it is possible to release him/her.' In some cases, the individuals have been reluctant to volunteer for travel for personal reasons (young children, etc.). You have repeatedly proposed travel assignments for yourself to your line managers, who have been more generous in proposing and supporting reporting assignments for these than they have for some others. In November 1996, you wrote to me protesting that you had not been selected to join the team of broadcasters sent to Qatar for the launch of our FM operation. Since April 1997, you have not been formally sent on reporting trips. You are not the only person who has not travelled in this period, and there is no particular significance in this - although when you were producing Trade and Finance, this job did require some travelling, in the Editor's Feature and Music sent you to Morocco when you were working in this unit. In 1998 you proposed to me that you should make a reporting trip to Iraq. I agreed but subsequently you expressed concerns about your safety and for that reason it was agreed that you should not go. In October 1998, you went on holiday to the United States and proposed to the management of the Arabic Service that you should spend some time on duty reporting in New York. This was agreed and you visited the UN Headquarters to record material for a feature programme on the UN and its relations with its Arab members."

[60]At our request Dr Jiad showed us the correspondence about the trip to Iraq. On 4 August 1998 Dr Jiad wrote to Mr Muawad (page 86):

"I received the attached invitation from the Iraqi Ministry of Information to attend the Babylon International Festival. I think it is an opportunity to cover the heated up situation in Iraq; to file on economic situation; to arrange for discussion on political, economic, literary, artistic and other subjects. We can arrange for an edition or more of the World This Week live from Baghdad, a live Business discussion and any given live interviews and discussion for the Open Programme. Although the invitation is to cover 22 September - 1 October 1998, we can extend that period to be able to do more journalistic work from such a virgin field."

[61]Dr Jiad wrote to Mr McLellan on 4 September 1998 (page 89):

"I receive very disturbing and worrying information from two sources over the last two days about my safety if I visit Iraq."

He then refers to the stringer in Baghdad indicating that his life was in danger receiving similar information from the BBC Jerusalem correspondents. The effect of that was "the Iraqi intelligence cannot wait to get" the Appellant. In the last paragraph he wrote "I have no doubt that you care about our safety and therefore I decided to relay for your consideration these worrying information."

[62]In his reply Mr McLellan wrote (page 90):

"Thank you for your note of 4 September about your proposed reporting trip to Iraq. What I have learned from inquiries in the BBC. does not support the assertions in your note about warnings of possible personal risk to you. Nevertheless considerations of personal safety are of course always paramount, as I made clear to you in my e-mail 28 September 1997, and if there is any hint that it would be unsafe for you to go to Iraq, then clearly you should not go. I would have expected you to have considered what I wrote at the time before again proposing to me that you visit Iraq. There is no pressing need for the Service to cover the Babylon International Festival and certainly no compelling reason for you to go there. I am assuming therefore that your trip will not now go ahead."

[63]This was a matter of cross-examination before the Tribunal. The notes prepared by the Chairman show that according to Mr McLellan he had not discussed the matter with Dr Jiad. Dr Jiad complains about that for reasons which we do not understand. He referred to Dr Jiad approaching him for duty trips and saying that he would consider him for such trips. He said that Dr Jiad asked for trips to Morocco and Tehran and he had been considered. The notes then contain the following:

"Nonsense that I wanted you to go to Iraq to get executed."

[64]We asked Dr Jiad the circumstances in which that note had been recorded. Having heard what he had to say the only reasonable explanation is that he was cross-examining Mr McLellan to suggest that Mr McLellan wanted him executed and thus had written what is contained in the first sentence of the letter to which we have just referred. In our judgment that provides a vivid insight into the way in which Dr Jiad can quite wrongly interpret the actions of others.

[65]Dr Jiad in answer to our questions said that the trip to Iraq did not come into the category of a duty trip. He said that it was a personal invitation to him. He seemed to be suggesting that he himself was not intending to go on the trip. If this is what he was seeking to suggest to us it is plainly contradicted by the correspondence. It is clear that although the origin of the trip to Iraq may have been a personal invitation, nonetheless Dr Jiad was asking to convert it into a full duty trip. It was he who decided, no doubt for excellent reasons, not to go. The fact that Mr McLellan may not have discussed the matter with him seems irrelevant.

[66]Dr Jiad further argued that this trip was not relevant to his claim because it was outside the period which he had chosen, which ended on 4 August. We did not follow that argument. Finally he submitted that the Respondents had agreed to the Iraq trip to show the Tribunal "that they can consider me for a duty trip". In his submissions to the Tribunal the Appellant had written that "the suggested trip to Iraq post-dated this case (announced by McLellan on 13 August 1998)." In that submission he also refers to a trip to Israel only 6 weeks before the Tribunal hearing. He was sent, so he said, "because no one else wanted to go".

[67]Mr Bowers referred us to the evidence of Mr Muawad and Mr McLellan as contained in their statements. They denied any promise that the Appellant would go on a promotional trip to Cairo. Mr McLellan stated that the Appellant in late 1998 went on a private visit to New York and asked if it could be turned into a duty trip. Mr McLellan agreed to pay him for four days when he did work on the trip (see Respondent's bundle, page 233 and 252-254).

[68]We turn to the Tribunal's reasons. In paragraph 8 the Tribunal wrote:

"The Applicant has not been prevented from taking business trips. He has taken many in the past. In two successive years recently he has not taken up the opportunity of trips to Iraq for reasons which are understandable and connected with possible threats to his personal safety. He has however recently taken up a trip to Israel."

Given that the Appellant did not go on a duty trip between May 1997 and the end of the period which he chose, namely 4 August 1998, Dr Jiad criticises this passage. We investigated during the course of the hearing the reference to the first opportunity to go to Iraq. Mr Bowers accepted that the invitation on this occasion was personal to the Appellant and would not have been classified as a duty trip.

[69]The Tribunal returned to the issue of business trips under its conclusions (page 48):

"While he did not make many business trips during an identified period of time there were acceptable reasons which had nothing to do with his race."

Dr Jiad criticises this passage because, if one takes Dr Jiad's period from May to the 4 th August, he did not make any business trips during that period.

[70]Although it would have been better if the Tribunal had not referred to the first opportunity to go to Iraq and if the Tribunal had given fuller reasons for its conclusions, we take the view that the finding was one that the Tribunal was fully entitled to reach.

[71]The second aspect of his complaint about business trips related to an allegation that whereas other colleagues had had their requests for business trips included in their objectives, the Appellant had not. We shall deal with that complaint under the heading "The appraisal". Training

[72]In his grounds of appeal the Appellant subtly shifted this allegation to one relating only to "professional training". He told us that there were two kinds of training "technical training" and "professional training". Although there had been a reference to professional training, Mr Bowers pointed out, and we agree, that his case at the Tribunal concerned "training" and not just "professional training". In the light of that the Appellant cannot rely upon merely professional training now. We shall look, as did the Tribunal, at the evidence relating to all training.

[73]Mr Muawad said in his statement (page 241):

"Abdul Hadi [the Appellant] seems to think that training should be given on demand and if a training requirement is noted in an appraisal then it must be given or else it will amount to discrimination. The service has been operating under budgetary constraints as does much of the BBC. There are constraints to the training I can allow, both financial and because my unit has been understaffed so I have not had the capacity to allow people to go on training. Because of these constraints training is given as and when it is necessary. As can be seen from the Applicant's training record in comparison with those of other people in the unit, he has had more than several people in the unit. However, in addition to the training supplied within the department, he was sponsored by the BBC to study for his PhD from 1992 to 1996 - although this isn't shown in the training record. He was also sent on the Hostile Environment Course. This is an outside course and therefore does not appear on the internal training records. He has mentioned the Hostile Environment Course particularly. He was sent on this course in early December 1998. Prior to 1998 people went on a Hostile Environment Course on an ad hoc basis as the need arose. If they were due to go to a hostile area they were sent on the Hostile Environment Course. In February 1998 Gamon McLellan asked for people to indicate if they wished to go on the course. This was prioritised according to need and Abdul Hadi was sent in December. Some people have not been sent on the course ... the allocation has nothing to do with nationality, race or Abdul Hadi making a complaint to the Tribunal."

[74]Mr Muawad gave the names of four persons who had not been sent on the courses (Respondent's bundle, pages 241-242) That list included three of the comparators relied upon by the Appellant, Razzek, Abdo and Chaich.

[75]Mr Muawad also wrote (paragraph 39, at page 242) that the Appellant, not being a "Manager" (i.e. not a senior producer) was not a priority for management training.

[76]Mr McLellan gave similar evidence.

[77]In March 1998 the Appellant attended a course called "Reporting Israel Today". It was the Appellant's case, at least before us, that that was not a "proper" course. In February 1998 he went on a course called "DAVE 2000 (for Africa)". It was the Appellant's case before us that this was a technical course and ought to be ignored. For the reasons which we have already given, we do not propose to ignore it. In addition to those two courses he went on the Hostile Environment Course in December 1998.

[78]The courses attended by his comparators can be found set out in the Appellant's bundle (second part page 42 and following). The Hostile Environment Course does not appear on those lists because it was an outside course. In the period chosen by the Appellant Faragallah had done 2 courses one of which DAVE 2000 (for Africa); Rasek had done 1 course; Abdo had done 4 courses (it will be remembered that Abdo was a senior producer); Sheikh did 2 courses in that period including the DAVE 2000 course and Fahmi had done 1 course only in that year. Fahmi had had no courses for 3 years between 1995 and May 1998. The Appellant sought to explain that before us by saying that he had worked during that time on a magazine. Chaich had done 2 courses in the period, one of which was DAVE 2000. The names of Fouqara and Shokeir, both producers like the Appellant and therefore the obvious comparators, did not appear on the lists.

[79]In paragraph 15 of the extended reasons the Tribunal stated (page 46):

"The training records show that the Applicant had attended eleven training courses in seven years. The First Respondent has also paid £3,500 towards the costs of his PhD course which was completed in 1996. While these courses are not spread evenly over that seven year period neither are the courses which were attended by his comparators. Indeed, the Applicant has attended more courses than some of them. In respect of training he has not been treated less favourably than others."

[80]Later in the decision the Tribunal stated (page 6):

"The Applicant had done well in terms of training but if, over a short period it would appear that he was less favourably treated than others, we would not consider that such a treatment was on racial grounds. We were referred to the training details of other employees and it was quite clear from those documents that there were gaps of a year or two where they attended no training courses."

[81]This was a conclusion which cannot be described as perverse. There is no merit in this ground.

[82]The second aspect of his complaint about training trips related to an allegation that whereas other colleagues had had their requests for business trips included in their objectives, the Appellant had not. We shall deal with that complaint under the heading "The appraisal". The appraisal

[83]We have already noted that the appraisal was the subject of the internal review and that the Appellant's allegations were rejected. During the course of the hearing, the Appellant complained about the delay in completing his appraisal. There were good reasons for the delay, which, in any event, was not a pleaded act of discrimination or victimisation.

[84]Dr Jiad was under the misapprehension during the course of the hearing that the objectives set for him in February 1998 following the rejection of the Appellant's choice of objectives and his appraisal would "last" for a year. It is clear that the first Respondent had an annual system of appraisal, which would normally be complete by the middle of the calendar year (Appellant's bundle, first part, 341 and following). Thus the objectives belatedly set in February 1998 would have been replaced by a new set of objectives a few months later. At one point, and somewhat inconsistently, Dr Jiad seemed to be complaining that he did not have enough time in those few months to complete his objectives. Mr Bowers showed us material which demonstrated that the Appellant was thought to have met the objectives in the time available.

[85]The Appellant's principal complaint was that the objectives set for him "were more challenging, immeasurable, unreasonable and inequitable" compared with the comparators (Appellant's bundle, first part, page 246) and that he was denied the right of setting his own objectives (EAT bundle, page 69). He particularly complained that his requests for trips and training had been ignored when the objectives were set. In his skeleton argument, the Appellant developed further complaints which do not require particular treatment.

[86]In May 1997 the Appellant, as part of the 1997-98 appraisal procedure, had made the complaints to which we referred in paragraph 10 above. On 9 May his then manager gave him an excellent report and noted that the objectives would be set later because of the Appellant's imminent move to current affairs (Appellant's bundle, first part, page 152).

[87]On 9 February 1998 the Appellant "presented" his objectives (Appellant's bundle, first part, page 50):

"1) To be given the opportunity to attend courses on various aspects of professional and managerial matters. 2) To be included in various committees and discussions on the affairs of the Service. 3) To be included, on equal and reasonable footing with other colleagues, in duty reporting and promotion trips to various countries. 4) To be included in duty reporting and familiarization trips to countries set by the line manager objectives. 5) To be given the opportunity to work in shifts for presenting programmes. 6) To be given the opportunity to present live discussions. 7) To be given the opportunity to produce and present special editions across the service. 8) To be given the opportunity for a promotion and a continuing contract."

[88]In his statement adopted in evidence, Mr Muawad said that these objectives were not suitable . "[The Appellant] refused to discuss objectives at all. I had to accept his alone in total and nothing else" (Respondent's bundle, page 238).

[89]On 12 February Mr Muawad sent the Appellant the objectives set for him, the Appellant's comments on those objectives and Mr Muawad's comments on those comments (page 48):

"1. Further improve interviewing skills, in particular to develop a more balanced tone when putting necessarily tough questions to interviewees. Widen editorial horizons and specifically to improve knowledge of and interest in the affairs of countries and areas such as Algeria, Tunisia, Sudan and sub-Saharan Africa, and to plan proposals for journalistic items on these areas more thoroughly. Boost working relationships with colleagues in the unit and across the service by developing the ability to resolve problems amicably, effectively and constructively when acting as producer of programmes. Improve understanding of differing interests of current affairs audiences across the Arab world. When asked to act up occasionally as senior producer, to ensure that supervision is carried out fairly, effectively and amicably. Further improve ability to accept and respond to the day to day guidance from his manager without feeling the need to resort to written and defensive responses. Comments of [Dr Jiad] General Objectives appear not to be totally measurable and carry subjectivity. Re: point 2 I am not disputing the principles of setting objectives and widening knowledge, yet I hope they apply across the board. Re: point 6 We disagree on the wording of point 6, yet I accept the effectiveness of direct reporting to my manager. Re: point general Although it may be self explanatory, but I understand that these points are no reflection on my current performance but they are objectives for future reference. Comments of Hassan Muawad I do not agree with the statement that the objectives do not appear to be reasonable. I think they are fair and measurable and Mr Jiad is expected to achieve them. Abdel Hadi presented me with his own set of objectives. I only consider the above as the valid ones. As far as training is concerned, this will be done according to requirement, and as far as presentation shifts and hosting discussion programmes are concerned, this is normally decided on merit and according to operational need. I have to note that Mr Jiad was not willing to sign this document because of the disagreement over my comment concerning his own set of objectives."

[90]It will be noted that Mr Muawad particularly dealt with the "training" objective. He made it clear that training would be given as required.

[91]In June 1998 Mr Muawad wrote (Respondent's bundle, page 29):

"[Dr Jiad] spent a large part of the period under review acting-up as Editor of the Day/Night. He carried out these duties satisfactorily. This period also witnessed the latest Iraqi crisis. [Dr Jiad's] extensive knowledge of the subject was useful, although it would be more beneficial if such knowledge was extended to other affairs in the target area. He needs to continue to develop a lighter tone when putting tough questions to interviewees. [Dr Jiad] attended a DAVE 2000 course and has good technical skills which are useful to his colleagues and to the unit as a whole. As a producer, the same requirement to extend knowledge to more areas still applies. During the period under review, [Dr Jiad] complained about the ERR rate which is normally paid to producers who act up as Senior Producers. His complaint was based on the length of the shift (12 hours) which is the standard day shift of senior producer compared to a typical 9 hour day as Producer. It would be useful if [Dr Jiad] improved his ability to accept comments or observations from the Current Affairs management, without being oversensitive or misinterpretation. I encourage him to actively discuss any complaints he has with the CA management rather than simply airing them among his colleagues."

[92]In the course of argument, the Appellant drew our attention to other appraisals, particularly that of Mr Fahmi, to show how the objectives chosen by him had been agreed. The report on Mr Fahmi (Appellant's bundle, second part, page 212) stated:

"spent most of the time under review acting-up as Senior Producer, which he did very well. His editorial judgment is sound and his leadership skills good. is cooperative and helpful. He creates an atmosphere of harmony amongst the staff. Two highlights of his work are represented by the successful reporting trip to Tehran where he covered the OIC conference. He also comprehensively covered the Middle East Peace Talks in London when he led the production team successfully. passed a talks writer test and earns the praise of the Editor of DAB. He attended a DAVE 2000 course and fair selection course. He now contributes to assessing the producers in the unit. He coped very well with the extension of transmission. OBJECTIVES To come up with ideas to revamp the dawn sequences. To contribute to the list of contacts in the unit. To take part in training newcomers to the unit. To further specialise in covering Islam for the Arabic Service both in terms of script-writing and reporting. Short-term objective: To start writing newsnotes and talks in Arabic for the Current Affairs unit. Long term objective: To turn that activity into writing in both Arabic and English. To practise running the continuity studio, including newsreading (this is to be endorsed by Editor, Presentation)."

[93]The Appellant also referred us specifically to the agreed objectives for two of the other producers (Appellant's bundle, second part, pages 145 and 251). Mr Muawad did not conduct their appraisals.

[94]In their extended reasons the Tribunal stated at page 6 (page 48):

"We did not accept that senior producers were pressurised to write reports on the Applicant or indeed reports which represented the views of the Second Respondent and not the individuals concerned [a reference to the fact that Mr Muawad sought the opinion of other senior producers]. We accept that the Second Respondent was over generous in the marks that he gave the Applicant out of five but it was the same for everyone. The appraisal was not unpatterned. It was a summary. We do not accept that it was a document that the Second Respondent was expected to prepare at the dictation of the Applicant. It was the Applicant's contention that other colleagues objectives and training needs were identified by the subordinate and rubber-stamped by the supervisor. The Applicant had drafted his own objectives and demanded that the Second Respondent rubber-stamped them. While the Applicant's performance could be measured against the objectives which were ultimately imposed upon him that could not be said of his own draft. If the Applicant's inter-personal skills were capable of improvement that was something to be considered against an overall favourable report and the fact that he had never been disciplined for his behaviour."

[95]The finding that the objectives set were capable of objective measurement was not perverse. Likewise the implicit finding that the Appellant could not expect his objectives to be rubber-stamped, was not perverse. We have already highlighted the reference to training made by Mr Muawad. It would have been better if the Tribunal had specifically dealt with the non-acceptance of the Appellant's objective 3, regarding trips. Nonetheless the Tribunal made clear findings about both the objectives and training trips and clearly did not accepts the Appellant's complaint. Tampering and concealment

[96]The allegation of tampering relates to a score of "3" for "problem solving" under "inter-personal skills and teamwork" given by Muawad. In the copy of the assessment on the Appellant's personnel file (Appellant's bundle, second part page 496) can be found the disputed "3". That document was shown to the Appellant. In July 1998 he had written against the entry: "I strongly object to this".

[97]His allegation of tampering arose from the fact that in an earlier draft provided to the Appellant by Mr Muawad a "4" had been given for problem solving. (Respondent's bundle, first part page 174). The Appellant relied only on the reduction to"3". In fact there were two other changes from the draft document which were in the Appellant's favour. In making his allegations against Mr Muawad he ignored the changes in his favour. In a supplemental statement (Respondent's bundle, page 224) Mr Muawad explained that he had forgotten about the draft document and that the Appellant did not remind him of it when they met in 1998. It was Mr Muawad's evidence that he felt that "3" was the proper mark and he explained the reason for this.

[98]The Tribunal in its decision stated that: "The Applicant was labouring under a misunderstanding", a charitable interpretation, it might be thought. We find no merit in this ground.

[99]Insofar as concealment is concerned we asked the Appellant to choose his best example of alleged concealment. He referred us to page 304 and a question relating to the status of Mr Fahmi. (see Appellant's bundle, page 262) The Respondent had answered that the status of Mr Fahmi had not changed. It was the Appellant's case that this answer ignored the fact of his attachment in the "acting-up" capacity.

[100]The Tribunal did not specifically deal with this allegation unless, perhaps, in paragraph 18. Nonetheless it would be impossible to draw the conclusion that this was concealment of the kind being alleged by the Appellant. Findings on credibility

[101]We have already summarised the principal findings on credibility. Dr Jiad complains of a lack of reasons to support the finding. Although it might have been better if the Tribunal had given fuller reasons, there were sufficient findings (see paragraphs 37-38) and ample documentary evidence (some of which we have cited as part of the background) to support the conclusion as well as the submission made before us by Mr Bowers that the Appellant's conduct "came close to paranoia". The rejection of the tampering allegation would itself necessarily put in doubt the credibility of the Appellant. This was one of those cases in which the Tribunal had ample opportunity to form their views about the credibility of the Appellant. During the course of the hearing the Chairman commented on the aggression shown by the Appellant to Mr Muawad. In the Chairman's notes (EAT bundle page 80) one finds the following in square brackets:

"Applicant aggressive throughout with witness now getting out of order - Chairman if you treat the witness as you do in front of the Tribunal how do you treat him on a one to one?"

[102]There is nothing which we have seen or heard which suggests the Tribunal's findings are perverse. Even if better reasons had been given, the result would have been the same.

[103]Dr Jiad also complains of the Employment Tribunal's conclusion (page 6):

"Flushed by his earlier success he has been over hasty in bringing this complaint."

[104]Dr Jiad submitted that there was no documentary evidence to support that conclusion. There was strong support for the assertion that the Appellant was flushed by his success: see the disturbing note in Respondent's bundle, page 19. Given the many adverse findings made against Dr Jiad by the Tribunal no valid criticism can be made of that comment.

[105]The Appellant made specific criticisms about the evidence of Mr McLellan. There was no dispute that Mr McLellan had provided what was, at least, inaccurate information in a statement prepared by him in another case involving a Mr Jamil El Abed. The material upon which the credibility of Mr McLellan could be assessed was before the Tribunal and there is no merit in this ground. Were sufficient reasons given?

[106]Mr Bowers accepted that the reasoning was "somewhat terse". Dr Jiad complains that it was so inadequate that the matter should be remitted for a further hearing. We take the view that overall the reasoning was sufficient to let Dr Jiad know why he lost his claim. The Tribunal's final conclusions

[107]Given our conclusions on the individual complaints made by Dr Jiad, we take the view that the finding that "… the Applicant was not treated less favourably on racial grounds" is a conclusion which the Tribunal was one that it was properly entitled to reach. It cannot properly be described as perverse.

[108]Mr Bowers accepted that the Tribunal erred in saying: "In a finding of victimisation a Tribunal would have to find a motive connected with the race relations legislation" (see paragraph 20 above). He submitted however, that, given that the Appellant was relying on the same comparators and on the same acts to support both his claims, and in the light of the finding that the Appellant was not the victim of unlawful discrimination on racial grounds, it is inconceivable that the Tribunal would have reached a different conclusion if the proper test had been applied. We agree.

[109]For these reasons this appeal fails.

[110]At the conclusion of the hearing, the first Respondent sought an order of costs, estimated at about £18,500, pursuant to Rule 324 of the Employment Appeal Tribunal Rules, 1993. That provides that an order of costs may be made if the proceedings "were unnecessary, improper or vexatious" or if there had been "unreasonable conduct in bringing or conducting the proceedings".

[111]It will be remembered that the Appeal Tribunal had, in effect, warned the Appellant of the danger of a costs order being made against him (paragraph 23 above).

[112]We adjourned consideration of that matter and asked for an affidavit of means which has been provided (albeit the Respondent is critical of it, see letter of 11/04/2001). We have also been provided with copies of correspondence. At the conclusion of the hearing and in correspondence, the Applicant has evinced an intention not to seek permission to appeal and to withdraw his appeal from the decision of the EAT presided over by His Honour Judge Clark. Subsequent correspondence suggests that this offer may have been conditional, but we shall assume it not to be. He also submitted, rightly, that he had conducted the appeal properly without going outside the grounds of appeal and that he had abandoned at least one ground. We take the view that this appeal had no merit and should have never been brought. The Appellant behaved unreasonably in bringing the proceedings. Taking into account his means, we order that the Appellant pay 50% of the Respondent's costs assessed if not agreed, up to a maximum of £9,250.