Tabidi v British Broadcasting Corporation

For direct discrimination under the Equality Act 2010, the tribunal must consider less favourable treatment and the reason why it occurred. Those questions are intertwined, and the reason why question may be addressed first. If the protected characteristic played no part in the treatment, a hypothetical comparator is unnecessary. A tribunal need investigate alleged disparities between candidates only where those disparities are relied on. Appellate courts should not interfere with an experienced tribunal’s factual assessment absent an error of law. For costs, failure at trial to establish a prima facie case does not automatically show that a claim had no reasonable prospect of success. A costs discretion is vitiated by an unsupported prediction about what the opposing party would have done.

The appellant, a freelance broadcast journalist for the BBC Arabic Service, applied for a permanent Broadcast Journalist role. Two women were appointed. He claimed direct sex discrimination, alleging that the panel preferred women and assessed the candidates inconsistently. The Employment Tribunal dismissed the claim, finding that the appellant had performed poorly and that gender played no part in the scores. It also ordered him to pay £4,550 in costs.

The Employment Appeal Tribunal dismissed his appeal. The Court of Appeal considered whether the Employment Tribunal had failed to conduct the required comparator analysis and whether its costs order was legally sustainable.

Disposition. The liability appeal was dismissed. The costs appeal was allowed. The Employment Tribunal’s costs order was set aside and replaced by an order that there be no order as to costs.

1. Direct discrimination under section 13(1) of the Equality Act 2010 involves the less favourable treatment question and the reason why question. The questions are intertwined. Following the approach in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, a tribunal may decide first whether the protected characteristic was a reason for the treatment. If it was not, there is no need to construct a hypothetical comparator.
2. Actual and evidential comparators are relevant to the same underlying inquiry: whether differences in the treatment of candidates indicate discrimination. The Employment Tribunal was required to consider alleged disparities only so far as the appellant relied on them. His representative had not relied in closing submissions on the particular disparities later raised on appeal. The Tribunal therefore did not err by failing to address them.
3. The Tribunal’s conclusion that the panel had genuinely assessed all candidates’ answers and that gender played no part was itself comparative in substance. Its alternative finding that the BBC had proved the absence of discrimination was also open to it. An experienced tribunal’s factual assessment should not be disturbed on appeal without an error of law.
4. The burden of proof under section 136 of the Equality Act 2010 is two-stage. The claimant must first establish facts from which discrimination could be concluded; if that threshold is met, the respondent must satisfy the tribunal that discrimination did not occur. The Employment Tribunal’s reasons, read as a whole, showed that it rejected both possible prima facie cases and alternatively accepted the BBC’s explanation.
5. Under Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the threshold question whether a claim had no reasonable prospect of success is distinct from whether it ultimately failed. Morgan J held that the Employment Tribunal’s discretion was nevertheless vitiated because it relied on an unsupported inference that the BBC would probably have agreed to waive costs if the claim had been withdrawn. McCombe LJ additionally considered that the Employment Tribunal had wrongly equated failure to establish a prima facie case at the hearing with absence of reasonable prospects. The Court exercised the discretion itself and made no order for costs.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 733, the liability appeal was dismissed and the costs appeal was allowed. The costs order was set aside and replaced with no order as to costs.
2. Employment Appeal Tribunal: Soole J dismissed the appellant’s appeal against the Employment Tribunal’s liability and costs decisions.
3. Employment Tribunal: The sex discrimination claim was dismissed. The appellant was ordered to pay £4,550 in costs.