Tabidi v British Broadcasting Corporation

An Employment Tribunal may determine a discrimination claim according to the case advanced by the parties. An appeal is not an opportunity to advance an unargued comparator case.

In a direct discrimination claim, the Tribunal may consider whether the claimant has established a prima facie case and, alternatively, whether the respondent has proved that the protected characteristic played no part in the treatment. The issues of less favourable treatment and the reason for it need not always be decided sequentially.

A costs award for a claim with no reasonable prospect of success is discretionary. A costs warning and a party’s failure to reassess the claim after disclosure may properly be considered. The Employment Tribunal may draw on its industrial experience when exercising that discretion.

The claimant, a male freelance or casual Broadcast Journalist in the respondent’s Arabic Service, applied unsuccessfully for one of two permanent Broadcast Journalist roles. The successful candidates were women. He alleged direct sex discrimination in the scoring and selection process.

The London (Central) Employment Tribunal dismissed the claim and awarded the respondent £4,550 costs. It found that the claimant had not established facts from which discrimination could be inferred and, alternatively, that the respondent had proved sex played no part in the scoring.

The claimant appealed, contending that the Tribunal had failed to assess actual or hypothetical comparators and had erred in making the costs award. The central issues were whether that comparator case had been advanced below, whether the Tribunal’s alternative burden-of-proof finding was lawful, and whether its costs discretion was lawfully exercised.

1. Appeal dismissed. The Employment Tribunal was entitled to decide the discrimination claim as it had been presented in closing submissions. The claimant had not relied on other candidates as actual comparators or invited the construction of a hypothetical comparator from their circumstances. Indeed, his case had been that little would be gained from comparing interview grids. He could not reargue the case on a new comparator basis on appeal.

2. The Tribunal’s unchallenged alternative finding independently defeated the discrimination claim. Even assuming that a prima facie case had arisen, the Tribunal had found on credible evidence and contemporaneous interview notes that the respondent had proved that sex played no part in the candidates’ scores. The Tribunal was permitted to address the reason-for-treatment issue in the alternative rather than treat the questions of less favourable treatment and reason as requiring a strict sequence. That approach was consistent with Shamoon and Brown.

3. The Tribunal had correctly applied the principles governing the burden of proof under sections 13, 23 and 136 of the Equality Act 2010. A difference of sex and treatment, without more, did not shift the burden of proof. Its examination of the recruitment process also disclosed no error of law.

4. The costs appeal failed. The attempt to challenge the substantive merits through the costs ground was impermissible. The Tribunal was entitled to take account of the costs warning, the claimant’s failure to engage with it after disclosure, and its experience of employment litigation. The absence of a calculation in the written reasons caused no legal error, since the Tribunal’s subsequent answer recorded that the award comprised counsel’s brief fee and two refreshers. The award was comfortably within the Tribunal’s discretion.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0272_18_1303.
• London (Central) Employment Tribunal: The direct sex discrimination claim was dismissed. Costs of £4,550 were awarded against the claimant. The decision was sent on 8 January 2018 and written reasons on 13 April 2018.