Jiad v Byford & Ors

LORD JUSTICE PETER GIBSON: I will ask May LJ to give the first judgment.

LORD JUSTICE MAY: This is an appeal by Dr Jiad from a decision of the Employment Appeal Tribunal on 22nd April 2002. The Employment Appeal Tribunal dismissed Dr Jiad's appeal from the decision of an Employment Tribunal, sitting in Central London, sent to the parties on 23rd August 2000 in which the Employment Tribunal struck out the appellant's originating application and made an order for costs against him. Sedley LJ gave permission to appeal on 16th August 2002.

Dr Jiad is the only Iraqi, or if not the only, one of very few Iraqis, employed by the BBC. He still is so employed. His originating application to the Employment Tribunal arose out of an incident which he alleges occurred on 7th February 2000. His case is that he was then harassed and bullied by Janet Youngson, a solicitor employed by the BBC Litigation Department. Dr Jiad wrote on that day to Mark Byford, the Director of the BBC World Service, in these terms:

Dr Jiad claimed that as a result of this incident he suffered psychological stress and humiliation and had to see his general practitioner. The Employment Tribunal had a letter from Dr Jiad's general practitioner dated 9th August 2000, which stated:

Mr Byford passed the complaint to Lesley Grainger, personnel controller of BCC World Service. She was out of the country at the time, but she replied on 27th February explaining in unexceptionable terms why it had been necessary for Janet Youngson to speak to Dr Jiad. Lesley Grainger wrote again on 28th February 2000, and there was subsequent correspondence about the BBC's policy on guidelines for dealing with harassment. Dr Jiad copied the correspondence to Greg Dyke, the Director General of the BBC.

Mark Byford, Lesley Grainger, Janet Youngson and Greg Dyke, but not the BBC, are respondents to Dr Jiad's originating application. In it Dr Jiad states that these respondents:

The respondents applied to the Employment Tribunal to strike out the originating application under rule 13(2)(d) of the Rules of Procedure. The Employment Tribunal acceded to the application and struck the originating application out. They ordered Dr Jiad to pay the respondents' costs on the ground that his claim was entirely without merit and that he acted vexatiously in bringing it. The Employment Appeal Tribunal dismissed Dr Jiad's appeal against that decision.

Rule 13(2)(d) of the Rules of Procedure provides:

For present purposes it is, in my view, sufficient to say that the jurisdiction to strike out arises when the claim or that part of it under attack is bound to fail: see Care First Partnership v Roffey [2001] IRLR 85 and Anyanwu v South Bank Students Union and South Bank University [2001] IRLR 305. In the latter of those cases, the House of Lords observed that discrimination cases should not be struck out as an abuse of process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive and their proper determination is vital in a pluralistic society. In the discrimination field perhaps more than any other, the bias in favour of the claim being examined on the merits or de-merits of its particular facts is a matter of high public interest.

Section 1 of the Race Relation Act 1976 provides:

Section 2 of the 1976 Act provides:

Section 4 of the 1976 Act provides:

Dr Jiad brought two previous claims for race discrimination and victimisation against the BBC. His first claim, brought in May 1997, had been upheld by the Employment Tribunal. An appeal by the BBC to the Employment Appeal Tribunal succeeded and the matter was remitted to a different Employment Tribunal for rehearing. Dr Jiad appealed to the Court of Appeal but withdrew his appeal on the morning of the hearing. On the rehearing the application was dismissed. The second claim, brought in August 1998, was against the BBC and two of its employees. This claim failed both in the Employment Tribunal and the Employment Appeal Tribunal. Janet Youngson was the solicitor for the BBC who dealt with these claims. The incident on 7th February 2000 appears to be connected with one or other of these proceedings. Dr Jiad's claim in the third proceedings was thus more promising as a claim for discrimination by way of victimisation than for discrimination on racial grounds. Mr Milford before this court for practical purposes accepted that the case of race discrimination against Miss Youngson was unsupported by evidence, although his instructions were formally to maintain it.

In the Employment Tribunal it was contended on behalf of the respondents that the matters complained of could not amount to the necessary detriment and that Dr Jiad had failed to identify persons in comparison with whom each of the respondents had treated him or would treat him less favourably. Dr Jiad submitted that striking out was draconian. He said that the effect of the harassment of which he complained was psychological, physical distress, depression, fear and humiliation. The Tribunal observed that the claim was of direct racial discrimination under section 1(1)(a) of the 1976 Act and a complaint of discrimination by way of victimisation under section 2(1) of the Act. They noted that the allegations against Janet Youngson were of harassment and bullying on 7th February 200. The allegations against the other three respondents constituted a failure to investigate Dr Jiad's complaint.

As to detriment, the Tribunal noted that Dr Jiad had not consulted his general practitioner since 28th February 2000. They considered that the alleged detriment was tenuous. They were not satisfied that the matters complained of amounted to detriment. They cited Adekeye v Post Office (No 2) [1997] IRLR 105 as authority for the proposition that a person is not subjected to detriment if they are generally aggrieved. I do not find that that case supports that proposition. The Tribunal considered that Dr Jiad would have to show a comparator of a different race than his who was more favourably treated. There was nothing in the originating application identifying such a person or suggesting that such a person existed, and no attempt had been made during the hearing to identify such a person. For these reasons, the Tribunal was satisfied that the originating application amounted to an abuse of process and was vexatious. They accordingly struck it out.

The Employment Appeal Tribunal dismissed Dr Jiad's appeal. Burton J presiding gave their decision. He observed that the respondents were four individuals and that the BBC had not been joined as a respondent. The Employment Tribunal had recognised that its striking out was a draconian measure and that all the circumstances should be taken into consideration. He recited the facts. He said that, whatever might be the nature of the case against Janet Youngson, the Tribunal was entirely justified in dismissing the case in discrimination against the other three respondents whose role is alleged to have been to a varying extent a failure to investigate. As to Janet Youngson, there had to be an arguable case of detriment suffered by Dr Jiad. His case was that the effects of the incident on 7th February 2000 were psychological, physical distress, depression, fear and humiliation. To that Dr Jiad had added loss of dignity. He had consulted his general practitioner, and Burton J referred to the terms of the general practitioner's letter of 9th August 2000. He referred to authorities, including the decision of the Northern Ireland Court of Appeal in Shamoon v Chief Constable of the Royal Ulster Constabulary [2001] IRLR 520. In that case Sir Robert Carswell, the Lord Chief Justice, had adopted a construction of detriment in the decision of the Employment Appeal Tribunal in Lord Chancellor v Coker and Osamor [2001] IRLR 116 that, to constitute detriment, there had to be some physical or economic consequence as result of the discrimination which was material and substantial. This was said to be in accordance with the English Court of Appeal in Barclays Bank v Kapur [1995] IRLR 87 that an unjustified sense of grievance could not amount to a detriment. The Employment Appeal Tribunal in the present case were entirely satisfied that the Employment Tribunal were entitled to reach the conclusion that the case for detriment was tenuous. As to the need for an actual or hypothetical comparator, Dr Jiad did not seek to identify, even on an arguable basis, any such person. Nor did he seek to identify one before the Employment Appeal Tribunal. In those circumstances, the Employment Appeal Tribunal was entirely satisfied that the Employment Tribunal was right to conclude that there was no arguable case against the four respondents of discrimination or victimisation within the Act. There was no arguable case of detriment and there was no arguable case of less favourable treatment. The Employment Appeal Tribunal also upheld the Employment Tribunal's order as to costs.

In support of Dr Jiad's grounds of appeal to this court Mr Milford submits that his case was not bound to fail either because he had shown no detriment or for want of a comparator. The submission is that bullying on racial grounds or as victimisation which causes humiliation and embarrassment is capable of being sufficient detriment for the purpose of section 4(2)(c) of 1976 Act. Mr Milford refers to Ministry of Defence v Jeremiah [1980] ICR 13 at page 26C, De Souza v Automobile Association [1986] ICR 514 and Insitu Cleaning Company Ltd v Heads [1995] IRLR 4. In the first and third of these cases it was held that detriment meant no more than disadvantage. In the second case May LJ said at page 522 that the Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstance in which he had thereafter to work. In Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 Lord Hoffmann said at paragraph 53 that the courts had given the term "detriment" a wide meaning. Mr Milford submits that what was said in Coker should only be taken as applying to indirect discrimination where there is no substantial possibility of injury to feelings and where the only sensible detriment was economic. It is submitted that Dr Jiad's case goes further than mere disadvantage, since he claims to have suffered physical and psychological injuries sufficient to require medical attention. His case may be weak and could, on a full factual investigation, turn out to be so weak as not to amount to any significant detriment; but there is a difference between a tenuous case and one which is bound to fail. As to the need for a comparator, Mr Milford submits that the Employment Tribunal looked only for an actual comparator. They did not contemplate the possibility of a hypothetical comparator, such as the plain language of the statute and Balamoody v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2002] IRLR 288 require. If it were held that Janet Youngson had bullied and humiliated Dr Jiad, it could be inferred that she did so by way of racial discrimination or victimisation and that she would not have treated other persons in this way.

For the respondents it is submitted that the Employment Tribunal was correct to strike out this claim against all four respondents. The originating application only tentatively suggested that the respondents other than Janet Youngson might have committed an unlawful act. Dr Jiad had not before the Employment Appeal Tribunal attempted to identify any actual or hypothetical comparator. His case was that his allegations amounted to discrimination because the incident fell within the BBC's policy as to harassment. This was not a case in which it was appropriate to look for a hypothetical comparator in the absence of facts to raise the possibility. Mr Bowers went so far as to submit that the facts alleged, taken at their highest, could not raise any sustainable case; but an Employment Tribunal should not be constrained to postulate a possible case which the applicant himself did not raise. He referred to Chapman v Simon [1994] IRLR 124 at paragraph 33. As to detriment, the case at its highest did not amount to any significant detriment. Dr Jiad's case that he suffered psychological stress and humiliation was not borne out by the letter from his general practitioner which referred to a history of insomnia and depression. Even taking the general practitioner's letter at its highest, no reasonable worker could consider that what occurred and its consequences were a disadvantage in the workplace, not least when Dr Jiad works at Bush House and Janet Youngson works at White City. The facts of De Souza, he submitted, included a most uncomplimentary racial insult and were far removed from those alleged in the present case.

In my judgment the cases against Mark Byford, Lesley Grainger and Greg Dyke are bound to fail. The Employment Appeal Tribunal was correct so to decide. Each of them did no more than forward or receive correspondence and, in the case of Lesley Grainger, write routine letters in answer to it. I am quite unpersuaded that anything in her letter of 28th February 2000 can possibly be elevated into any case of discrimination, even taking account of the telephone numbers given in Dr Jiad's message of 13th January 2000. These three respondents were not involved in the incident of 7th February 2000 and nothing alleged against them could amount to racial discrimination or discrimination by way of victimisation under the Act. The cases against them were, in my judgment, rightly struck out.

As to Janet Youngson, it is right to emphasise that she denies that she bullied or humiliated Dr Jiad in any way. She explains the facts and circumstances of the incident on 7th February 2000. For present purposes, however, we are required to assume that Dr Jiad's factual allegations are true. On that assumption, I see the force of Mr Milford's submission that the claim is not bound to fail for want of a comparator. If Janet Youngson bullied or humiliated Dr Jiad, it is at least a possible inference that she did so because he had brought his previous proceedings and that she would not have so treated a person who had not brought previous proceedings. Equivalent considerations could conceivably apply in the event that it would have been inferred that she bullied and humiliated him and did so because he was Iraqi. But I indicated earlier in this judgment that Dr Jiad's claim appears less unpromising as a claim for discrimination by way of victimisation and Mr Milford accepted that there was no evidence to support a case of discrimination on racial grounds. As to victimisation, the facts may not of course measure up to the allegations. But, taking the allegations as true, I do not consider that this claim against Janet Youngson is bound to fail as a case of victimisation for want of a comparator, hypothetical or actual.

As to detriment, the facts alleged are weak and may turn out to be insignificant, in which event Mr Milford accepts that the claim would fail: see Ministry of Defence v Jeremiah at page 25 B. I see the force of the submission which persuaded the Lord Chief Justice of Northern Ireland in Shamoon. All the other matters in section 4(2) of the 1976 Act are incidents of, or connected with, employment and are likely to have financial consequences. Transitory hurt feelings may not (depending on the facts) suffice, but enduring physical or psychological injury could (again depending on the circumstances) be capable of constituting detriment in the sense that a reasonable worker would regard it as a disadvantage. With some hesitation, I conclude that Dr Jiad's case here crosses the line of possibility and is not bound to fail for want of a sufficient allegation of detriment. It may be tenuous, but that is not enough in the sense in which I read paragraph 19 of the Tribunal's decision. He claims to have suffered psychological and physical stress. He consulted his general practitioner twice. On the first occasion the general practitioner prescribed medication. Applying the advice given by the House of Lords in Anyanwu I conclude that the Employment Tribunal was wrong to strike the claim against Janet Youngson out.

In her case, therefore, I would allow this appeal and I would remit the matter to a differently constituted Employment Tribunal. The costs order in her favour should also, in my view, be set aside, but I would maintain the costs order in favour of the other three respondents. It would, if there is no agreement, be necessary to have any division of those costs appropriately assessed.

LORD JUSTICE BUXTON: I agree with the orders that my Lord has proposed. Since we are differing from both of the tribunals below, I add a few short words of my own.

As my Lord has said, the test that the Tribunal had to apply on this application was a test of whether the claim made by Dr Jiad was bound to fail. That, in my judgement, is the converse of establishing that there is an arguable case. The Employment Appeal Tribunal was satisfied that the Employment Tribunal had indeed applied that test. They said in paragraph 27:

If it was indeed the case that the Employment Tribunal asked itself the right question -- that is to say whether there was an arguable case of detriment that was material and substantial -- then I would entirely agree that it would not be for any appellate tribunal, whether the EAT or this court, to differ from the conclusion to which that tribunal came. However, I am not able to accept that it is sufficiently clear that the Employment Tribunal did, in fact, ask itself that proper question. Nowhere in their determination do they say clearly what test they in fact were applying. But the best indication is to be found in paragraph 19 of their determination, already quoted by my Lord and referred to by the Employment Appeal Tribunal:

That is in relation, of course, to detriment, which is but one aspect of the case; but it is far from clear from that statement that the test formulated by the Employment Appeal Tribunal and by other authorities was clearly in their mind. That being so, it seems to me that, whilst that is not in itself a reason for the appeal to succeed, nonetheless it forces the court to address with some caution whether, if a proper test had been applied, it would still have been inevitable that the Employment Tribunal would have been entitled to strike this action out.

So far as the various respondents are concerned, Mr Milford (with, if I may say so, good judgement) withdrew the cases against Mr Byford and Mr Dyke; and so far as Miss Grainger was concerned he agreed that there was no evidence against her in respect of racial discrimination, but sought to maintain the case on the basis of her letter of 28th February 2000 when she replied, I think for the second time, to Dr Jiad's complaints. In particular, he drew attention to the last sentence in that letter:

There was a good deal of material before us as to whether or not Miss Grainger indeed had access to Dr Jiad's phone number or that the solicitor had such access. But that is, it seems to me, beside the point. What Miss Grainger wrote may or may not have proceeded on a mistaken basis, but that is no ground for a claim of victimisation against Miss Grainger, which is what this case is about. At the least it has to be established that her mistake was not a mistake at all, but that she had approached the matter in a biased or prejudiced way. Unless it can be said that this letter of 28th February was simply disingenuous, that case cannot stand up.

Although Mr Milford had instructions to maintain this case before us, he properly did not feel able to press strongly the contention that any criticism could be made of Miss Grainger's letter other than one of error, and there is absolutely no material from which such a contention could be made. In those circumstances, I therefore agree that the case against Miss Grainger has no foundation, should not have been brought, and was rightly struck out.

That leaves the position of the lady who was the person directly involved in the incidents concerned, Mrs Youngson. The difficulty that was perceived in respect of her case by the Employment Tribunal was that there had been no identification on the part of Dr Jiad of a comparator in respect of whom Miss Youngson had treated him less favourably. Neither of the tribunals below had the advantage of the judgment in this court in Balamoody v Central Council for Nursing [2002] IRLR 295, which was relied on before us to demonstrate that failure on the part of an applicant to nominate a comparator should not be fatal: there is a duty on the tribunal to consider whether a comparator can be, and should be, hypothesised.

It is important to look carefully at what was said by Ward LJ in that case, and particularly at paragraph 59, the paragraph relied on. Having stated that he considered the case as presented by the applicant had been mistaken in terms of comparison, he said this:

Accordingly, the hypothetical comparator only potentially enters the equation once there is evidence to demonstrate some form of discrimination.

In our case Mr Milford agreed, and rightly so, that it was not possible to establish evidence with regard to direct racial discrimination on the part of Mrs Youngson. That, however, leaves the question of victimisation. Like my Lord, it seems to me that once the facts are put together that Mrs Youngson treated Dr Jiad in an aggressive and inappropriate manner, if indeed she did do so (and that of course is contested); and, second, that there was a history of Dr Jiad being at loggerheads with his employers so far as the litigation is concerned (and Mrs Youngson bore the burden of dealing with that); then there is, at least potentially, evidence that her acts were ones of victimisation. Once that is established, it is artificial to complain that no comparator has been identified. The concept of the comparator sits easily in a case where the applicant complains of wrong selection, failure to accord benefits that were accorded to a range of other employees, and matters of that sort. There the comparison is necessary in order to establish that discrimination took place at all. But in a case such as this where the complaint is of a single isolated and unusual offence to an employee, the question of comparison really does not sensibly enter into the matter. But if one has to force the alleged facts of this case into that straight-jacket, then it is possible, in my judgement, to say that one compares Mrs Youngson's treatment of Dr Jiad with what was or would have been her treatment of another litigant who did not have Dr Jiad's history. I therefore do not think that this case should fail by reason of the lack of a formal statement of comparison in respect of the victimisation question.

That, however, leaves two further questions. First of all, whether an arguable detriment has been established; and, second, whether the case can in any event, taking the facts at their highest, be said to be one that is de minimis and therefore such as could be struck out on those grounds.

So far as detriment is concerned, it is noticeable that attempts to explicate these concepts have emphasised that the question is very much a matter of fact and judgement. In Barclays Bank v Kapur, for instance, it was said that "an unjustified sense of grievance" could not amount to a detriment. In the passage in his judgment in Ministry of Defence v Jeremiah that was cited with approval by Lord Hoffmann in paragraph 53 of his speech in Chief Constable of West Yorkshire v Khan. Brightman LJ said:

Those are matters of fact and judgement for the Tribunal. The tribunal has to approach them within the framework of other authorities on the meaning and implications of detriment that my Lord has set out. But granted that there is that element of judgement, and particularly one that appeals to the attitude of a reasonable worker (a type of question that a tribunal is particularly well suited to determine), it seems to me difficult in any case, and impossible in this case, to say before, a tribunal has addressed its mind to that question in the context of an actual hearing, that the case must necessarily fail. That is so even in a case such as the present, where I have to agree with my Lord that the evidence as to detriment is certainly not impressive. As Mr Milford agreed, the highest at which the case can be put is on the doctor's letter of 9th August 2000. It will, of course, be for the Tribunal that hears this matter to look at that letter and to hear Dr Jiad examined in the context of it. I would only observe at this stage that a large part of the letter appears to be the doctor's report of what he had been told by Dr Jiad, rather than a diagnosis by the doctor himself: though it cannot be ignored, of course, that the doctor thought it appropriate to prescribe medication. That is, however, a matter which, in my view, will have to be investigated at a hearing.

Similarly as to the issue of whether the detriment, put at its highest, can be said to be de minimis. Mr Milford rightly accepted that there is such a jurisdiction, as indeed he was bound to do in the light of the judgment of this court in the case of Jeremiah. But in assessing that issue, that again seems to me to be an issue for the tribunal who hears the case, and not a matter upon which a striking out can take place except in the clearest case. With some hesitation, I conclude that this is not a case of that character. I am influenced in that estimation by what was said by Lord Steyn in his speech in Anyanwu at paragraph 24, an observation that is widely quoted in this jurisdiction. I have some doubts as to whether Lord Steyn had directly in mind when he so expressed himself a case of the sort that is before us. But even with that qualification, his guidance is, of course, something that this court cannot lightly turn away from.

I regard this case as being close to the borderline, even applying the stringent requirements as formulated by Lord Steyn and others to which I have just referred. But so far as the claim against Miss Youngson in respect of victimisation is concerned, and in respect of that alone, I do not think that this is a case for striking out.

I would only add this. Dr Jiad now has the advantage of skilled and expert advice, which has stood him in very good stead in the hearing before this court. Those advisers will no doubt wish to reinforce that the fact that this case is allowed to proceed on the limited basis that I have indicated is no indication that it will eventually be successful; and also to advise him as to the possible consequences of the case failing at the end of the day. But, so far as this court is concerned, I agree with the order that my Lord proposes.

LORD JUSTICE PETER GIBSON: I also agree with the orders proposed by May LJ. I add a few words of my own on the subject of the meaning of detriment.

It is in my judgment clear on the preponderance of the authorities that detriment is to be given a wide meaning and that it means no more than to be put under a disadvantage: see the comments of Brandon LJ in Ministry of Defence v Jeremiah [1980] ICR 13 at page 26. The Employment Appeal Tribunal in Lord Chancellor v Coker [2001] IRLR 116 placed this meaning on detriment:

That was applied by the Northern Ireland Court of Appeal in Shamoon v Chief Constable of the Royal Ulster Constabulary [2001] IRLR 520 paragraph 14.

I have no difficulty with the requirement that the detriment must be material and substantial. A trivial disadvantage would not suffice. But, with respect, I for my part have doubts whether it is necessary that there should be some physical or economic consequence. Those doubts are reinforced by the observations of Lord Hoffmann in Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 at paragraph 53. There Lord Hoffmann said this:

There that specific linkage of detriment with the ability of the Tribunal to award compensation to injury to feelings seems to me to be a pointer that it is not necessary to find some physical or economic consequence for there to be detriment.

But, for the reasons given by my Lords, I too would allow this appeal only in respect of the claim for victimisation against Mrs Youngson, and I do so only because the test for striking out in this area of the law is so high.