Jiad v Byford & Ors

At the permission stage, a direct race discrimination claim need not necessarily depend on an actual comparator. It may be arguable that the claimant was treated differently in a way in which a person of a different ethnicity would have been treated. Where there is a difference of race and treatment, a tribunal should examine carefully the reason for that treatment. If no satisfactory non-racial reason emerges, it may infer a racial reason. Detriment under the Race Relations Act need not involve medical attention; public or personal humiliation may suffice. Such a claim should not be struck out where these matters make it tenable.

Dr Jiad, a BBC employee, brought Employment Tribunal claims for direct race discrimination and victimisation. He complained that an in-house BBC solicitor approached him publicly about ongoing litigation and that other respondents failed to act on the alleged harassment. The Tribunal struck out the claims as having no conceivable prospect of success and ordered him to pay £3,500 costs for vexatious conduct. The Employment Appeal Tribunal dismissed his appeal. He applied to the Court of Appeal for permission to appeal and an extension of time. The central issues were whether the Tribunal arguably required an actual comparator, whether the alleged treatment and detriment were legally arguable, and whether the costs order was sustainable.

Application granted. Lord Justice Sedley granted permission to appeal and allowed an extension of time, with liberty to the BBC to set the order aside at its own risk as to costs. The court was concerned only with whether there was an arguable case and did not determine the merits.

1. Comparator. It was arguable that the Employment Tribunal had misdirected itself by treating direct discrimination as requiring a comparator under the statutory limb concerned with different treatment from a person of another ethnicity. The Race Relations Act could also be engaged by showing treatment different from that which a person of a different ethnicity would have received. That route might be harder to establish evidentially, but was legally tenable.
2. Detriment. Detriment did not require medical attention. Public or personal humiliation could be sufficient. The alleged hectoring and humiliating approach, contrasted with the ordinary private telephone contact used with others, therefore raised an arguable issue.
3. Inference of racial reason. Where there was a difference of race and a difference of treatment, the tribunal should examine the reason carefully. If a satisfactory non-racial explanation did not emerge, it was entitled to infer that the reason was racial. Evidence that Dr Jiad had supplied telephone and email contact details called into question the asserted necessity for the personal approach. A tenable claim for race discrimination, and possibly victimisation, was therefore disclosed.
4. Costs. The £3,500 award was arguably punitive and lacked a sufficient basis merely because Dr Jiad had initiated the claim. The court strongly recommended alternative dispute resolution and advised that, if the matter proceeded, legal representation should be considered.

• Court of Appeal (Civil Division): On [2002] EWCA Civ 1224, permission to appeal was granted and an extension of time allowed.
• Employment Appeal Tribunal: Dr Jiad’s appeal from the Employment Tribunal was dismissed.
• Employment Tribunal: The claims were struck out and Dr Jiad was ordered to pay £3,500 costs for vexatious conduct.