MRS A JASANI M.B.E. v BRITISH BROADCASTING ASSOCIATION [2002] UKEAT 1037_02_2511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1037_02_2511Case No Appeal No. EAT/1037/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A JASANI M.B.E.APPELLANTBRITISH BROADCASTING ASSOCIATIONRESPONDENT
Before
Mr Justice Elias Mr B R Gibbs Mr A E R MannersDate 25 November 2002
[1]APPEARANCES For the Appellant MR M SAHU (of Counsel) Instructed by: Messrs J R Jones Solicitors 56a The Mall Ealing London W5 3TA THE HONOURABLE MR JUSTICE ELIAS This is the Preliminary Hearing at which the Appellant seeks to persuade us that there is a case to go forward for a full hearing, in respect of a decision of the Employment Tribunal at Cardiff, which dismissed the Appellant's claim of racial discrimination.[2]The background facts, very briefly, can be summarised as follows. The Appellant has, since 1987, presented and produced for the Respondent a programme entitled A Voice for All. She runs this programme with the assistance of her husband, daughters and friends and she has prepared the content of the programme from her home. It is a programme aimed at the South Asian communities of Wales. It is a live programme involving listeners calling in to chat and to take part in quizzes and that kind of thing, as well as playing recorded music of interest both to young and older Asian people. Initially this programme was broadcast on a Sunday evening but that was subsequently changed to a Friday.[3]The incident which appears to have given rise to this particular claim was a meeting between the Appellant and one Daniel Jones of the Respondents on 15 July 1999. At that meeting he indicated that the programme would be changed back to a Sunday evening with the programme going out between 10.30 and midnight.[4]The Appellant submits that she has been subject to discrimination by the Respondent over the period of 10 years and, more specifically, alleged before the Tribunal that the conduct of Mr Jones, at the interview at which he notified her of that change, constituted racial harassment.[5]The Tribunal heard evidence over a couple of days. It reached various factual findings about a whole series of specific incidents that were relied upon by the Appellant in support of her allegation of racial discrimination. It set out its overall conclusions, having made certain findings in respect of particular incidents, at paragraph 35 of its decision as follows: 35 "Her programme had a limited audience and the funds that were made available for it had to reflect its status. As the programme went out at a fixed time each week it does not seem to us that more publicity than its appearance in the Radio Times was required. The complaints that she makes about lack of facilities seem to us to be without foundation except possibly the one about lack of music records of the type of music that was required for this programme. The nature of her relationship with the Respondents cannot justify her expectations of an entitlement to consultation about matters of policy and programming or personal development. We cannot find any basis for her allegations that she was marginalised and excluded on racial or any other grounds."[6]The Appellant has been represented before us in this application by Mr Sahu. We pay tribute to the determined and cogent way in which he has presented arguments on behalf of the Appellant. He has identified, in the grounds of appeal, in all 23 grounds which were relied upon. It is fair to say that before us he recognised that many of these grounds were simply unsustainable.[7]They fall into a number of categories. One major category was that there was no evidence for the decision of the Tribunal in respect of a whole host of findings which they made. It would indeed, it seems to us, have been extraordinary if there had been no findings of fact which would have justified any of these conclusions since the grounds of appeal cover virtually every significant conclusion in the decision.[8]But it is perfectly plain, and Mr Sahu accepts, that when one looks even at the submissions that were made by the Appellant and the Respondents (the closing submissions, that is, before the Tribunal) that they reveal, even without the Chairman's notes the existence of evidence which supports the findings of the Tribunal in this case on virtually all matters. I say virtually all matters because there are one or two minor matters, to which I shall return, where it is right to say that one cannot find a specific reference in the Respondent's closing submissions. That is a far cry, of course, from saying that there was no comment at all in the evidence about such matters.[9]There are also a number of grounds which argue that the conclusion of the Tribunal was perverse. That is, of course, as everyone knows, an extremely high hurdle for anyone to cross. Once there is an evidential basis for a decision then it is very rare for a decision to be found to be perverse, in the sense that no reasonable Tribunal could have come to that conclusion. Where that argument is advanced, usually, if it succeeds, it is really because the Tribunal has erred in law in the way it approached a particular question, rather than on the independent ground of perversity. We have to say that we find no basis at all for saying that any of the findings in this case are perverse, as such.[10]There were then a number of more specific points which were identified by Mr Sahu and at which he directed the thrust of his challenge.[11]First, he identified what he said were certain errors of law in the Tribunal's reasoning. He submitted that the Tribunal had acted under the misapprehension that in order to establish whether or not there has been discrimination on grounds of race, it is necessary to show that the discriminator intentionally discriminated on that ground. In support of that proposition he referred to paragraph 18 of the Tribunal's decision. That dealt with the interview between Mr Jones and the Appellant.[12]The Tribunal recount the fact that Mr Jones knew that presenters often resist changes and expected this to be a difficult interview. He started the meeting with certain small-talk about the Applicant's work as a doctor. The Tribunal then say this:
"This offended the Applicant but that was certainly not Mr Jones' intention."
[13]Mr Sahu submits that this demonstrates that the Tribunal is saying that absent intention there cannot be any discrimination on grounds of race. We do not think that is what the Tribunal is saying at all. It is plain from other passages in their decision, such as paragraphs 21 and 36, that they considered the Applicant to be highly-emotional and over-sensitive to criticism.[14]All they are doing in this context, it seems to us, is saying that, although she did take offence, the particular comment was not intended to be offensive. Plainly it would be more serious if the Respondent knew that she readily took offence and deliberately sought to provoke her in some way. They are simply indicating that that was not the position. There is nothing, it seems to us, in that paragraph that suggests the Tribunal made such an elementary error in its approach to the question of discrimination.[15]Similarly, Mr Sahu submits that the reference to the fact that the Appellant was highly emotional was again an error of law. He submits that what the Tribunal has in effect said is that because she is highly emotional and over sensitive then that precludes any finding of race discrimination on the basis of her reactions to comments or actions taken.[16]We do not accept again that that is what the Tribunal is saying. They are simply providing part of the general context in which the evidence has to be assessed. It seems to us that they are saying that, although there was evidence that Mr Jones had an abrasive manner, and indeed on an appeal in this very case he was reprimanded by management of the BBC for that reason, that nonetheless his comments and criticisms to her had been interpreted as they had by her because of her over sensitive and emotional nature. There is no reason why they should not have referred to that and indeed it seems to us to be a relevant, contextual matter in which to assess the evidence that they had to hear.[17]Mr Sahu then points to certain more specific paragraphs of the decision where he says there have been errors; in particular, paragraphs 23, 24 and 25.[18]In paragraph 23 the allegation was that the Respondents had provided little publicity for the programme. The Tribunal accept that there was indeed little publicity other than its entry into the Radio Times but they added this:
"…as the programme went out weekly at fixed times and the nature of its content [sic] it is unlikely that greater publicity was required."
Mr Sahu says that there is simply no evidence on which the Tribunal could have reached that conclusion and that it is making its own observation.[19]We do not, of course, know precisely what evidence was before the Tribunal on that matter and it is right to say that it does not seem to have been the subject of any specific comment in the Respondents' closing submissions. We do know, however, that there was evidence to which the Tribunal made reference that there had been an adequate budget in January for this programme and indeed some witnesses considered more than adequate budgeting in all the circumstances.[20]It seems to us that, on this particular matter, the Tribunal was entitled to reach the conclusion that it did. It knew that here we have a niche programme, directed to a small audience, and plainly what sums will be permitted for publicity in that context will be dictated very much by the nature and category of the programme. The Respondents do not appear to have accepted, for example, that they were treating this any differently to any other programme in this respect.[21]Then at paragraph 24 the Tribunal says:
"The Applicant's photograph was not kept displayed permanently in Broadcasting House with those of other personalities but that is hardly surprising in view of her part-time position and the length of her service."
Again, we see nothing about this in the Respondents' answer. This may be in fact because it appears that no complaint of this kind was made at all in the Originating Application. It must have been something which emerged as a grievance in the course of the hearing itself in some way. Again, we do not know what evidence was given by the Respondents precisely on this matter.[22]But, it is part – and one has to infer, a small part – of the general complaint of the Applicant in relation to overall publicity provided to her. In that context it is, perhaps, relevant to note that the Appellant apparently had herself said, in her written statement, that she was well-known in the Asian community. Furthermore, it does appear as if there was evidence from the Tribunal saying that questions of publicity for freelance broadcasters – as the Appellant was – was a matter for the freelance person herself.[23]Then, at paragraph 25, the Tribunal made this finding on a particular fact:
"On some of the engagement forms a permanent member of the BBC staff was named as the producer. These people were the programme-scheduling executives. They played no part in her show. That was produced by her, her friends and family. These were purely internal documents. The persons seeing them would know the true nature of the roles of the respective persons."
Again, there appears to be no specific comment in the closing submissions on that particular point. However, we are all agreed that this really would take the Appellant's case very little further forward.[24]The Tribunal has made a finding that this was a purely formal matter; that her particular name was not identified on some internal document as the producer. Perhaps, we know not, that someone internally simply put the programming-schedule executive down as the producer. What is plain is the Tribunal were satisfied that everyone would be perfectly well aware of what that meant and what role the Appellant would have in producing this programme in fact.[25]Finally Mr Sahu referred to the conclusion, at paragraph 35, which we have already spelt out, in which it is indicated that the complaints that she made seem to be without foundation "except possibly the one about lack of music records of the type of music that was required". He submits that the Tribunal should have made a finding on that specific matter and should not simply have left it, as it were, in the air.[26]We accept that there are circumstances, and many circumstances, where it is necessary for a Tribunal to make findings on all material facts. As well established, in cases like Anya v University of Oxford , for example, the failure to make findings on material facts is a basis for upsetting a Tribunal's decision. But that does not mean that failure to make any finding on every fact – however minor or insignificant it appears to be, in the context of the case as advanced as a whole.[27]We consider, of those four matters to which we have made reference, the Tribunal has dealt with them adequately and, in any event, they were, in truth, minor complaints which have to be read in the context of much more significant challenges made by the Appellant about the conduct of the Respondent.[28]The Tribunal has found explanations for each of these matters; none of which, it can be said, were put forward in the Originating Application as matters of particular significance, although one or two of them were mentioned, we accept. But the Tribunal had to look at the whole of these matters and make findings in relation to each of them and then reach a conclusion in the round, which it did at paragraph 35.[29]We think it was plainly entitled to reach the conclusion that it did and that, insofar as one can point to any infelicity in comments it has made in one or two places, this does not begin to challenge the thrust of its decision. It would not be difficult to find, in a case of this kind where there are so many allegations made, some specific matter which may not have been dealt with as ideally as one might, with hindsight, deal with it.[30]Finally, we should observe this. Mr Sahu also submitted that the overall decision of the Tribunal was perverse because having found, as they did and as indeed the BBC had accepted, that Mr Jones was somewhat abrasive, that that coupled with certain comments he made, such as "that he was not running an Asian channel", displayed manifest harassment on the grounds of race, particularly when read in the context of other comments which the Tribunal accepted caused offence to the Appellant.[31]We reject that. The fact that a manager is abrasive does not mean that he is acting in a racial way. Nor do we accept that it would be a racist comment to say to somebody that, no doubt in the context of why no further funds were being provided for the particular programme, or perhaps indeed of the context of why it was being switched to a Sunday night, "we are not running an Asian channel".[32]We wholly reject the notion that that observation, or the fact that there were comments critical of the programme, in any way demonstrated any basis at all for saying that the only proper conclusion was to infer that there had been discrimination on grounds of race and it would be a very sad day, we all think, if management were afraid to make critical comments of programmes, right or wrong, or indeed critical comments of inferiors in an organisation with whom they are responsible, on the grounds that it would be said that they were prima facie racial comments. We do not think Mr Sahu was ultimately seeking to submit that but his argument on occasions we felt came very closely to it.[33]So for these reasons, notwithstanding the assistance and care with which Mr Sahu advanced his argument before us, we consider that there was no point of law which has any real prospect of success and we say that this should not go through to a full hearing.