Judgment: 5-12-2013

Appeal No. UKEATPA/0784/12DM;   UKEATPA/1817/12/DM

Employment Appeal Tribunal

At the Tribunal On 30 October 2013; Judgment handed down on 5 December 2013

Before The Honourable Lady Stacey (sitting alone)

MR D MAISTRY                                                                                    APPELLANT

BRITISH BROADCASTING CORPORATION                                  RESPONDENT

JUDGMENT

 RULE 3(10) APPLICATION – APPELLANT ONLY

THE HONOURABLE LADY STACEY

1.  The claimant is a journalist, who started work at the BBC Asian Network on 10 December 2001. He had previously worked for the BBC for five years as a producer. He was dismissed by the Respondent (the BBC) on 1 October 2010, effective from 1 July 2011. He appealed against that decision, but his appeal was dismissed.

2.  Two  decisions were made by the Employment Tribunal against which the claimant sought to appeal. The first was a Judgment of the Employment Tribunal in which full Reasons were sent to parties on 4 April 2012 after a long hearing which took place between 3 February and 1 March 2012. The unanimous Judgment of that Tribunal was a follows:

(1)  The claimant’s claim that the Respondent discriminated against him by treating him less favourably because of the protected characteristic of age, contrary to section 13 and section 39(2)(c) and (d) of the Equality Act 2010, and/or direct discrimination contrary to Regulations 3 and 7 of the Employment Equality (Age) Regulations 2006 fail and are dismissed.

(2)  The Claimant’s claim that the Respondent discriminated against him by treating him less favourably because of the characteristics of philosophical belief, contrary to section 13 and 39(2)(c) and (d) of the Equality Act 2010, and/or direct discrimination contrary to Regulations 3 and 6 of the Employment Equality (|Religion or Belief) Regulations  2003 fail and are dismissed.

(3) The Claimant’s claim that the Respondent harassed the Claimant by engaging in unwanted conduct related to the protected characteristics of age, contrary to section 26 and section 40(1) of the Equality Act 2010 and/or harassment contrary to Regulation 6 and 7 of the Employment Equality Age Regulations 2006, fail and are dismissed.

(4)  The Claimant’s claim that the Respondent harassed the Claimant by engaging in unwanted related to the protected characteristics of philosophical belief, contrary to section 26 and section 40(1) of the Equality Act 2010, and/or harassment contrary to Regulations 5 and 6 of the Employment Equality (Religion or Belief) Regulations 2003 fail and are dismissed.

(5).  The claimant’s unfair dismissal fails and is dismissed.

3. The second decision with which this hearing was concerned was sent to parties on 28 September 2012, following a decision made on 20 August 2012 to the following effect:-

“The unanimous judgment of the Tribunal is that the Claimant is ordered to pay the Respondent costs in the sum of £10,000.”

4. The claimant sought to appeal against each of the decisions. His grounds of appeal were found to have no reasonable prospects of success as they disclosed no error of law. A similar procedure took place in relation to the Judgment on costs. Thus the first application by Notice of Appeal was found to disclose no error of law. He made a further application under rule 3(8) and it was found that the second Notice of Appeal disclosed no reasonable ground for bringing the appeal.

5. The Claimant lodged a skeleton argument for the rule 3 (10) hearing and appeared on his own behalf. He had written submission which he kindly provided to me. I had an opportunity of reading the papers in the case and I have considered all the written material together with the oral submissions made by the Claimant. In his oral submissions, the Claimant recognised that he may, in his grounds of appeal, have been in some confusion about facts decided by the Tribunal and errors of law. He appreciated that his material was lengthy and that he required to focus on the errors of law which he said were relevant.

6. He began by submitting that the finding by the Employment Tribunal that the Values of the BBC are a mission statement rather than a serious and important philosophical belief was a view which is completely contradicted by the public statements of the BBC. He stated that the centrepiece of the dispute was a clash of values. He accepted that the essential issue had been identified by Langstaff J in his decision made on his ground of appeal, which was whether the Respondent witnesses could plausibly deny any knowledge of the Claimant’s belief in the BBC’s higher purpose. The Claimant pointed out that at the Employment Tribunal, the Tribunal had found that when he, the Claimant, referred to the “BBC Values”, he meant the higher purpose of public service broadcasting. The Respondent’s witnesses on the other hand believed that the term “BBC Values” referred to the BBC’s mission statement. The Claimant made some criticism of the clarity of the Tribunal’s Judgment, but argued that there was no evidence for finding the BBC Values are a mission statement and it had thereby erred in law. The Claimant produced the following authorities|:-

(1) Tran v Greenwich Vietnam Community [2002]ECWA Civ 553

(2) Anya v University of Oxford [2001] IRLR 377

(3) Clark v Clark Construction Initiatives [2008] All ER (D) 48

(4) Grainger Plc v Nicholson [2010] IRLR 4

(5) Browne v Dunn (1893) 6 R 67

(7) King v Royal Bank of Canada Europe Ltd [2012] IRLR 280

(8) Roberts v Carlin UKEAT 0183/09/DA

(9) Barnsley MBC v Yerrakalva [2011] EWCA Civ 1255

(10) Lake v Arco Grating (UK) Ltd UKEAT/0511/04

(11) D Curran and Sons Ltd v Beswinski [2010] All Er (D) 99

He did not make detailed references to all these cases, but he argued in his written submissions that it was necessary for any Employment Tribunal to give clear reasons. In that connection, he referred to British Telecommunications Plc v Sheridan [1990] IRLR 2735, which was not on his list of authorities, and to Rustamova v Governing Body of Calder High School UK EAT/02084/11/ZT.

7. As I understood  him, his purpose was to argue that any tribunal requires to make primary findings of fact; to draw such inferences as are appropriate from those findings in fact; to narrate the competing submissions made to it; and to give intelligible reasons  for its findings. He argued that the Tribunal in his case had failed because it did not make primary findings and therefore did not explain why it held that the BBC values were in fact a mission statement.

8.  The Claimant made reference to the case of Grainger Plc v Nicholson and argued that the ET had erred in law because the proper course in distinguishing between a belief and a mission statement is to apply the criteria set out in that case. At that stage in the submissions, the Claimant advised that he had made an application for review, which had been refused. He had not appealed against that refusal. He enquired if he could appeal against that decision before me and I advised that I had no such appeal before me.

9. The Claimant proceeded on the basis that he would have to take that matter up separately.

10.  The Claimant moved on to a submission that the Tribunal had erred in law in drawing an adverse inference from the Tribunal’s view that he had failed to cross-examine the Respondent witnesses about the awareness they had of the BBC Values. He made reference to the case of Browne v Dunn and argued that the Tribunal had failed to mention his extensive cross-examination in which he clearly put the issue in dispute and continued to do so.

(11) In connection with the order for costs, the Claimant went on to argue that in his refusal of the grounds of appeal, Langstaff J had stated that the Claimant “brought a claim when he should have realised he could never establish it”. He argued that the existence of the BBC values were such that he was entirely entitled to go to an Employment Tribunal and explain how that affected him and all other people in public broadcasting. The Claimant then made reference to the cost warnings which had been sent to the Respondents. He argued that it had always been his position that he held certain beliefs and that he had been vindicated because Employment Judge Hughes had found that he did indeed hold the beliefs. He made reference to the case of Lake v Arco Grating (UK) Ltd and argued that the Employment Tribunal had failed to explain in its Judgment the relevance of that case and not stated what factors they had taken into account. He argued that the receipt of a costs warning was not decisive; there was no requirement on a person who received such a warning to cave in.

13. Having listened carefully to all the oral submissions by the Claimant and having considered the voluminous papers which he had provided for my assistance, I cannot find any ground of appeal which has reasonable prospect of success. I am clearly of the opinion that the Claimant is seeking to attack the findings of fact made by the Tribunal. As appeal lies to the Employment Appeal Tribunal on an error of law only, his applications are refused.

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