Elabed v BBC Arabic Service & Ors

In an employment discrimination appeal, the Court of Appeal may intervene only for an error of law. It cannot re-assess witness credibility or findings of fact. A permission application must identify an arguable legal error, such as misinterpretation of the governing legislation or failure to apply the correct legal principles. Where employment tribunals have directed themselves by reference to the Race Relations Act 1976, accepted non-racial reasons for the treatment, and found that discrimination was not proved, the Court of Appeal will not reopen those factual conclusions. The absence of any real prospect of establishing legal error justifies refusal of permission.

The claimant, a Syrian national employed by the BBC Arabic Service on a fixed-term contract, alleged race discrimination arising from the non-renewal of his contract and the rejection of later applications for employment. The Employment Tribunal dismissed the discrimination claims and refused a review under rule 11(6) of the Rules of Procedure in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.

The Employment Appeal Tribunal dismissed both appeals after a preliminary hearing, finding no arguable point of law and concluding that refusal of the review was a conclusion the Employment Tribunal could properly have reached. The claimant sought permission to appeal to the Court of Appeal, challenging the evidence, factual findings, procedure and alleged discrimination. The central issue was whether the tribunals had made an error of law giving the proposed appeal a real prospect of success.

1. Application refused. The claimant had no real prospect of successfully appealing the Employment Appeal Tribunal’s dismissal of both appeals.
2. The Court of Appeal’s role in an employment appeal is restricted to questions of law. Permission requires a real prospect of success based on an error such as misinterpretation of the relevant legislation, failure to apply a statutory provision, or failure to apply a legal principle stated by the courts. There is no appeal on questions of fact or on the Employment Tribunal’s assessment of witness credibility.
3. The Employment Tribunal had referred to the correct provisions of the Race Relations Act 1976 and the relevant legal authorities. It accepted the employer’s evidence that the non-renewal of the fixed-term contract and the rejection of later applications were based on non-racial reasons. Its conclusion that less favourable treatment on racial grounds was not proved disclosed no error of law.
4. In relation to the review application, the relevant question was whether, on the material before the Employment Tribunal, refusal on the ground that the application had no reasonable prospect of success was a conclusion it could properly have reached. The Employment Appeal Tribunal was entitled to conclude that this decision could not possibly be described as perverse.
5. The Court agreed with Hooper J’s judgments dismissing both appeals and refused permission to appeal.

• Court of Appeal (Civil Division): permission to appeal refused because the proposed appeal had no real prospect of success.
• Employment Appeal Tribunal: both appeals dismissed after a preliminary hearing. The Tribunal found no arguable point of law and upheld the refusal of a review.
• Employment Tribunal: race discrimination claims dismissed. A later application to review the earlier decision was refused under rule 11(6) of the Rules of Procedure in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.