Tabidi v British Broadcasting Corporation

The Court of Appeal dismissed the appellant's appeal against the Employment Tribunal's dismissal of his claim of direct sex discrimination in recruitment under sections 13 and 23 of the Equality Act 2010 and the burden of proof regime in section 136. The tribunal had found that the appellant performed poorly at a structured interview, rejected his contention that a "women agenda" criterion had been applied to favour female candidates, and concluded that he had not established a prima facie case; alternatively the tribunal found the respondent had shown that gender played no part in the scoring. The Court of Appeal held that there was no error of law in those factual and legal conclusions. By contrast, the Court allowed the appellant's challenge to the tribunal's costs order: the tribunal had taken into account an impermissible inference about what the respondent would have done had the claimant offered to withdraw, and the appellate court set aside the ET costs order and made no order as to costs.

Background and procedural history:

• Between October 2014 and February 2017 the appellant worked for the BBC Arabic Service as a freelance broadcast journalist/producer and applied in December 2016 for one of two new Broadcast Journalist roles advertised as part of the "World 2020" project.
• The appellant was shortlisted, interviewed and not appointed on 7 February 2017; the two successful candidates were women. The appellant resigned and brought tribunal proceedings alleging, among other claims, sex discrimination. The ET dismissed the discrimination claim after a three-day hearing and ordered the appellant to pay the respondent's costs of counsel for the hearing.
• The appellant appealed to the Employment Appeal Tribunal; following preliminary rulings the EAT (Soole J) dismissed the appeal. Bean LJ granted permission to appeal to the Court of Appeal on limited grounds relating to comparator analysis and costs.

Nature of the claim (i): A claim of direct sex discrimination in recruitment under the Equality Act 2010, contending that the interview panel assumed a male candidate could not meet a "women agenda" and that female candidates were preferred.

Issues framed by the courts (ii): whether the ET erred in its comparator analysis by failing to consider the performance and circumstances of the successful female candidates (actual or evidential comparators); whether the ET misapplied the burden of proof under section 136; and whether the ET lawfully exercised its discretion in ordering costs.

Court of Appeal reasoning and disposition (iii):

• The court reviewed the statutory test for direct discrimination (section 13), the requirement of no material difference between comparators (section 23) and the two-stage burden of proof process in section 136, and considered leading authorities cited in the judgment.
• On liability the Court of Appeal concluded that the tribunal performed the necessary comparative inquiry, accepted contemporaneous evidence and credibility assessments from two panel members, and reached a conclusion that gender played no part in the scoring. It found no legal error in the ET's approach: the appellant had not relied on specific disparities in scores or treatment of comparators in closing submissions and the ET was entitled to focus on the points actually advanced.
• On costs the Court held that the ET had taken into account an impermissible inference — that the respondent would very likely have agreed not to pursue costs if the claimant had offered to withdraw at a late stage — unsupported by evidence. That improper consideration vitiated the tribunal's exercise of discretion. The Court set aside the ET costs order and, exercising the discretion itself, ordered no costs payable in the ET.

The appeal on liability is dismissed: the Employment Tribunal did not err in law in concluding the appellant had not made out a prima facie case of sex discrimination and, alternatively, that the respondent had shown gender played no part in the selection decision. The appeal on costs is allowed: the tribunal took into account an impermissible and unproven inference about what the respondent would have done if the claimant had offered to withdraw, vitiating its costs decision; the Court of Appeal set aside the ET's costs order and made no order as to costs.

Employment Tribunal (London Central) dismissed the sex discrimination claim and ordered costs; Employment Appeal Tribunal initial rejection under rule 3(7) then permission under rule 3(10) by HHJ Eady QC (14 November 2018) to proceed on limited grounds; EAT (Soole J) dismissed the appeal (13 March 2019); permission to appeal to the Court of Appeal granted by Bean LJ; Court of Appeal ([2020] EWCA Civ 733) dismissed liability appeal and allowed costs appeal.