Court of Appeal finds that failure to shift burden of proof in employment claim does not mean claim lacked reasonable prospect of success

16 June, 2020

On 11 June 2020, the Court of Appeal handed down judgment in the case of Tabidi v British Broadcasting Corporation [2020] EWCA Civ 733.

The appeal arose out of the unsuccessful application by the Appellant, Mr Tabidi, for employment as a Broadcast Journalist with the BBC. Mr Tabidi claimed that the BBC had unlawfully discriminated against him on the grounds of sex during the recruitment exercise, including by assuming that as a male candidate he would not be able to serve a “Women agenda” that the role was designed to advance.

The Employment Tribunal had dismissed his sex discrimination claim and had also ordered him to pay the BBC’s costs on the basis that his claim had no reasonable prospect of success.

After unsuccessfully appealing to the Employment Appeal Tribunal, Mr Tabidi appealed to the Court of Appeal on three grounds. The first related to whether the Employment Tribunal had erred in failing properly to consider a comparator when considering Mr Tabidi’s sex discrimination claim. The second and third related to whether the Employment Tribunal had erred and/or exercised its discretion improperly in ordering Mr Tabidi to pay the BBC’s costs.

The appeal succeeded in part. The Court unanimously allowed the appeal to set aside the Employment Tribunal’s costs order on the grounds that the Employment Tribunal had erred in taking into account a “costs warning letter” from the BBC. This letter contained a settlement offer that expired prior to the exchange of witness statements and the disclosure by the BBC of documents relating to the interviews of other candidates. Having set aside the Employment Tribunal’s costs order, the Court of Appeal exercised its own discretion to make no order as to costs in respect of the Employment Tribunal proceedings.

The Court of Appeal was divided on whether the costs order should be set aside on a further ground — namely, that the Employment Tribunal had applied an erroneous burden of proof. Underhill LJ and Morgan J concluded that the Appellants’ arguments on this point did not fall strictly within the grounds of appeal, whereas McCombe LJ disagreed. All members of the Court agreed, however, on an important procedural point in relation to applications for costs in discrimination cases where the claimant fails to establish a prima facie case of discrimination at a full hearing — namely that such a failure does not of itself establish that the claim therefore had no reasonable prospects of success. For example, at §43 Underhill LJ held:

“I am in fact doubtful whether I would have reached the same conclusion as the ET on the threshold question of whether this was a case in which the Appellant had no reasonable prospect of success. That finding does not necessarily follow, as the Tribunal appears to have thought, from the fact that he did not in the event prove a prima facie case for the purpose of section 136.”

The Court of Appeal dismissed Mr Tabidi’s appeal on the first ground, upholding the substantive ruling that the BBC had not discriminated against him.

Charles Ciumei QC and Naomi Hart represented Mr Tabidi before the Court of Appeal, acting on a pro bono basis through Advocate (formerly the Bar Pro Bono Unit).