Appeal No.	 EAT/922/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR P A L PARKER CBE
MR N D WILLIS

MR A HAWWARI	APPELLANT

BRITISH BROADCASTING CORPORATION & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	MR JUSTICE LINDSAY (PRESIDENT):	 We have before us by way of preliminary appeal the matter of Hawwari v British Broadcasting Corporation and Mr G McLellan.  There was a decision at London North on 4 June 1999.  The decision was sent to the parties on 15 July 1999 – quite a complicated decision – and it falls into a number of parts.  The unanimous decision of the Tribunal is that:

(i)	“the Applicant’s complaints in his first Originating Application (Case No. 6002606/98) set out at paragraphs 1, 2, 3, 4, 9, 15, 19, 24, and 2 are res judicata and the Employment Tribunals have no jurisdiction to consider these complaints;
(ii)	the Applicant’s complaint’s under Case No. 6002606/98 set out in his further and better particulars at paragraph 6, 7, 10, 12, 20, and 21 are out of time and it is not just and equitable to extend time and there is no jurisdiction for the Employment Tribunals to consider these complaints;
(iii)	the Applicant’s complaints in Case No. 6002606/98 set out in his further and better particulars of his complaint at paragraphs 5, 8, 11, 12, 13, 16, 17, 18, 22 and 23 are struck out under Rule 13(2)(d) of the Rules of Procedure set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 as frivolous and vexatious; and
(iv)	the Applicant’s complaints in his second Originating Application (Case No. 6003083/98) are res judicata and there is no jurisdiction for the Employment Tribunals to consider this complaint.”

1	The different headings reflect different arguments having been addressed to the Employment Tribunal and, looking at that first one, it is necessary to distinguish between an event of racial discrimination which can be complained of to the Employment Tribunal - call that “the substantive event” on the one hand – and, secondly, victimisation as a result of the substantive event having been complained of.  That, one might call “related victimisation”.  

2	Now it is plain that a Tribunal which rules that the substantive event did in fact not take place does not necessarily have before it a claim for related victimisation.  Moreover, to disprove the substantive event does not of itself disprove the related victimisation.  

3	It is difficult for us to make really full sense of the decision of the Employment Tribunal because we have not got in this set of papers the numbered paragraphs and particulars which are referred to. But, looking at the decision in the case that ends “06/98”, we reiterate that it does not follow from the fact that a potentially racially discriminatory event has been held not to have occurred that no one can have been victimised by reason of having made that complaint.  That particular position only arises if the complaint of racial discrimination was both false and not made in good faith (see the 1976 Act, Section 2).  

4	It seems to us to have been the reasoning of the Tribunal that because earlier IT1’s of March 1997, June 1997 and October 1997 had made complaints of substantive events of racial discrimination, but which allegations had been held to be unfounded, there cannot have been victimisation, or, at any rate, that there cannot later have been a claim for victimisation because, by reason of the earlier cases having been dismissed, the later claim was to be regarded as res judicata.  That does not seem to us logically to follow, so there is here at least an arguable point of law in Mr Hawwari’s favour on the part of the case 06/98.  

5	As to part of the case “83/98”, the same point arises.  The fact that Mr Hawwari’s earlier substantive event complaint failed or was withdrawn does not mean that a case of victimisation as a result of his having made that complaint has already been heard.  So, again, there seems to be an argument in point of law.  

6	We are and no doubt will, in future, be concerned with whether any error of law is truly detectable in that part of the decision which deals with issues having been out of time.  Mr Hawwari, who is unaided today, has an argument in that area.  We are not to be taken necessarily to think that it is one that truly has a real prospect of success, but, in the sense that the other matters are going forward, it seems sensible not to rule upon it that at this juncture and so we do not stop that one going forward.

7	So far as concerns the part of the case that dealt with the striking out of part of Mr Hawwari’s case as having been scandalous, frivolous and vexatious, the Tribunal held that no reasonable cause of action was disclosed in the papers which Mr Hawwari had laid before the Tribunal.  It is a little confusing because Rule 13(2)(b) deals only with matters which are scandalous, frivolous or vexatious and normally - for example in the old rules of the Supreme Court Order 18 Rule 19(1) - a distinction was drawn between “no reasonable cause of action” on the one hand and “scandalous, frivolous and vexatious” on the other.  It could even be, when one looks at Rule 7(4) and 7(6) which talk about “no reasonable prospect of success”, that in the Tribunal’s rules, also, there is intended to be a distinction between “no reasonable cause of action” on the one hand and “scandalous, frivolous or vexatious on the other”.  So there might just be an opening there which might give Mr Hawwari some arguable point of law.  Moreover, it seems to have been the case that this ruling took place after the Tribunal had heard all the evidence and it would seem to be appropriate, if that were the position, that the case should have been dismissed not under Rule 13(2)(d) but simply because no case had by then been shown to exist.  There may just be, therefore, an arguable point of law in this area and rather than trying to dissect the matter further into sub-compartments when Mr Hawwari has, as yet, no professional help, we see the more convenient course to be to allow the whole matter to go to a full hearing.