In this blog, Laurene Veale, a pupil at Cloisters, considers the recent Court of Appeal case of Tabidi v BBC [2020] EWCA Civ 733 that concerned an appeal against an Employment Tribunal’s approach to comparators and an award of costs in a case involving a male applicant who unsuccessfully alleged sex discrimination after unsuccessfully applying for a Broadcast Journalist role. Nathaniel Caiden of Cloisters represented the BBC throughout the case.

The facts

Mr Tabidi, the Appellant, worked as a freelance radio journalist for the BBC’s Arabic Service. Upon encouragement by his managers, he applied for a role as Broadcast Journalist as part of a new project called “World 2020”.  He was one of 8 candidates shortlisted for interview but was not offered the job. The two successful candidates were women.

Mr Tabidi asked for feedback and in response was told that the World 2020 project was different to the radio work he had been doing. It was aimed at a younger audience, with an emphasis on a “women agenda”. Candidates’ abilities in digital formatting and social media had also been assessed.

Mr Tabidi complained that had not been informed about nor assessed on the aspect of the role which involved targeting a female audience. He claimed that the 3 interview panellists had assumed that he had no knowledge of women’s affairs because he was a man. He also relied on the fact that 6 months before the interview, HR had reminded managers that under-representation of women in the Arabic service needed to be addressed.

Employment Tribunal’s decision

The Employment Tribunal (ET) found that the BBC’s decision not to appoint Mr Tabidi was not because of his gender but because he had done poorly at interview. He had not understood what a competency-based interview required and had not sufficiently researched the role. Had he done so, he would have appreciated that the role targeted a particular audience and was funded by the World 2020 project with a special focus on women’s affairs.

At the conclusion of the hearing, the BBC applied for costs of its counsel attending the hearing and the Tribunal ordered these to be paid on the basis that he had brought a claim that had no reasonable prospects of success.  It noted that there had been a cost warning letter.  Although the time for accepting that offer had expired, it concluded that had Mr Tabidi approached the BBC it would have agreed not to pursue any costs.

Mr Tabidi’s appeal to the EAT was dismissed and he appealed to the Court of Appeal.

(1) The decision on the comparator issue

Bean LJ gave permission for only one of the Claimant’s grounds of appeal: that the ET had failed to consider whether he had been treated less favourably than his comparators: either actual comparators (the other candidates) or a hypothetical comparator constructed using the cases of the other candidates.

Underhill LJ, who gave the lead judgment on liability which all concurred with, held that it did not matter whether the successful candidates were treated as actual or evidential comparators (using the distinction in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 1).  The real issue was whether the Claimant was treated differently because of his sex. The ET had appreciated that in principle it was concerned not only with the panel’s assessment of the Claimant but also with its assessment of the comparators.  The ET was entitled to consider the “reason why question” first (“was the unfavourable treatment because of a protected characteristic?”). Having decided that gender was not the reason behind the BBC’s decision not to appoint Mr Tabidi, the ET did not need to consider whether he had been less favourably treated by reference to the comparators.

This case is a good example of when an ET will not need to consider the question of actual or hypothetical comparators after answering the “reason why” question (following the guidance by Lord Nicholls in Shamoon). If the reason for the treatment was not the protected characteristic, then there is no need to conduct a comparative exercise with actual or hypothetical comparators.

(2) The decision on costs

Underhill LJ noted that the question of when an ET can award costs against a Claimant is not whether the claim should ultimately fail but whether it had a reasonable prospect of success (in other words, whether the Claimant had shown a prima facie). A case can have a reasonable prospect of success but still fail.

The Court went on to find that the ET in this case had been entitled to find that the Claimant had not established a prima facie case that he had been given a lower score than he deserved by reason of his gender, or that the female candidates had been given a higher score because of their gender.

However, the Court of Appeal set aside the ET’s costs order. It disapproved of the ET’s finding that it was “very likely” that the Respondent would have agreed not to pursue its costs if the Claimant had offered to withdraw his claim after the expiry of the costs warning. The ET had made this finding “relying on what it said was its experience” but “in the absence of any evidence” (paragraph 75).

Considering the matter afresh the Court of Appeal made no award as to costs.

(3) An aside note on the ‘second appeals’ test

It is notable that two members of the Court of Appeal (Underhill LJ and McCombe LJ) felt the need to mention that permission to appeal would have been refused if the ‘second appeals’ test applied. McCombe LJ went further and urged legislative intervention, saying that “it is high time that that the legislation was amended” to enable the second appeals test to apply to cases which have already been heard by the ET and EAT (paragraph 45). McCombe LJ can see “no rational reason” why the second appeals test should not apply. Could this lead to a review of the exceptions to the second appeal test?

Commentary

There are two interesting points to note on the liability decision:

  • Before the Court of Appeal, the BBC’s counsel relied upon the EAT case, decided by the then Underhill J, of D’Silva v NATFHE [2008] IRLR 412, in particular the paragraph where it was stated that post ShamoonIt might reasonably have been hoped that the Frankensteinan figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals”. This tenor is picked up by Underhill LJ in paragraph 38, where he relies on Shamoon to conclude that the tribunal had not needed to consider hypothetical comparators in this case, since the “reason why” question had led to a finding that the treatment was not because of a protected characteristic.
  • The Claimant was twice given permission for the comparator based point of appeal.  The judgment and the ‘aside’ on second appeals seem to suggest that the Court of Appeal is unlikely to often be dealing with appeal points  based on a hypothetical comparator since  a Tribunal invariably has to consider the “reason why” question in such cases.   Certainly, no appeal on hypothetical comparators is likely to be successful where fundamentally the “reason why” question was answered in any event.

The costs decision has aspects that are likely to be relied upon in future cost applications. Two of note are:

  • A finding of no prima facie case does not necessarily mean the claim has no reasonable prospects of success (paragraph 43);
  • When a party has been given permission to amend this suggests that their case is at least arguable, which is something the Claimant can rely on to resist a costs order being made on the basis that the case has “no reasonable prospects of success” (paragraph 48, 50 and paragraph 98(i)).

Notwithstanding the above points, there appears three arguable problems with the approach taken:

  • The decision seems to have elevated a costs warning letter to almost a requirement before costs can be awarded. There is no such requirement. A costs warning letter is just a factor and one which it is relied upon normally to support costs (rather than argue that no costs should be awarded because the party failed to properly draft or have a cost warning letter).
  • It seems to also elevate a need for evidence for what occurred after the expiry of a cost warning, appearing to put the onus on the applicant for costs to show that it would not have pursued their costs if the claim had been withdrawn. However, this ignores the fact that the issue is whether the withdrawal or refusal to withdraw a claim at that stage in the litigation was reasonable.
  • The conclusion that one can fail to make out a prima facie case and yet still have more than “no reasonable prospects” of success seems to be incorrect.  If one fails to establish a prima facie case, it is impossible for one to succeed. However, that is not necessarily fatal or automatically leads to a cost award.  This is because to be awarded costs one must not only pass a “costs threshold” (in this case “no reasonable prospects of success”) but a Tribunal must also exercise its discretion. This means that the fact that one fails to establish a prima facie case it does not follow that costs will be ordered. There is always the discretionary element. Perhaps the better legal analysis is that failure to make out a prima facie case automatically means the case has “no reasonable prospect” of success but the Tribunal will have to consider whether or not to exercise its discretion – rather than the more artificial argument that one can have reasonable prospects of success when a prima facie case is not made out.

17 June 2020