Desai v National Car Parks Services (NCP) [2011] EWCA Civ 402

[2011] EWCA Civ 402Case No A2/2010/1607
IN THE COURT OF APPEAL (CIVIL DIVISION)
Case No UKEATPA/1565/09/RN
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE REID QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/04/2011
Before
LORD JUSTICE RIMER
Between
PARAG I. DESAIAppellantNATIONAL CAR PARKS SERVICES (NCP)Respondent
The Applicant, Mr Parag Desai, appeared in person for in person for The Respondent was not representedHearing Hearing date: 19 January 2011
Judgment

Introduction

[1]This is a renewed application for permission to appeal, Sir Richard Buxton having refused permission on the papers on 7 October 2010. It is against an order of the Employment Appeal Tribunal dated 9 June 2010 made by His Honour Judge Reid QC, the substance of which was to refuse Mr Parag Desai (the applicant, and the claimant in employment tribunal proceedings) permission to appeal against an adverse decision of the employment tribunal. The respondent to his tribunal claim and proposed appeal is National Car Parks Services (‘NCP’). Mr Desai represented himself on the application, as at all previous stages. The employment tribunal hearing was at London Central (Employment Judge Warren presiding) and took place on 13 July 2009. The tribunal sent its judgment to the parties on 23 July 2009 and its written reasons followed on 16 October 2009. A summary of the facts found by the tribunal and of its decision is as follows.

The facts found by and decision of the employment tribunal

[2]Mr Desai commenced employment with NCP in January 2007 and resigned with immediate effect by his letter of 15 October 2008. He had been employed as an enforcement officer at NCP’s Camden CCTV operating centre. His main task was to drive a smartcar fitted with a camera and to identify motorists who had breached parking regulations. During his employment, Mr Desai made complaints to NCP about a number of incidents.[3]In October 2007 he raised with management his understanding that Mr Johnson, another NCP employee, was working illegally: he was said to be working some 40 hours a week, whereas Mr Desai’s understanding was that his student visa restricted him to 20 hours. Mr Desai’s point was the officious one that Mr Johnson was illegally taking employment from someone with a lawful claim to it. He also complained that Mr Johnson had bullied and harassed him, his evidence being that Mr Johnson had mockingly mimicked him. Mr Desai expected NCP to solve the problem by dismissing Mr Johnson, which it did not, although Mr Johnson did leave later. The tribunal was unable to make any finding as to whether or not he was working illegally.[4]The next incident was on 30 November 2007. Whilst washing before lunch, Mr Desai spat into a sink in which there were dishes and a cloth. A Nigerian colleague, Mr Amudeli, saw the incident and complained to Mr Desai that it was unhygienic. Mr Amudeli then spoke to other colleagues in his native language, which Mr Desai could not understand save for the word ‘Indian’. Mr Desai is Indian. Mr Desai advanced a claim of race discrimination based on the incident but the tribunal recorded (in paragraph 10 and 40) that he accepted at the hearing that his assertion that Mr Amudeli was complaining that Indians were dirty was unsustainable; and also that it was clear that Mr Amudeli was genuinely concerned about his actions and that his own complaint was nothing to with Mr Desai’s race or nationality. Mr Desai thus abandoned his race discrimination claim.[5]Mr Desai’s next occasion for complaint arose on 14 December 2007 when Marcin, the Senior Enforcement Officer (‘SEO’), acting in the performance of his duties, allocated nightshift duties to two of the five available personnel, not including Mr Desai, who considered such allocation unfavourable and unfair. Mr Desai also complained that two days later, on 16 December 2007, Marcin announced that on this occasion there would be a ballot for the duties as ‘certain people’ (which Mr Desai says he understood referred to him) were unhappy about their allocation. He told Marcin he would complain about being spoken to or about in that way, to which Marcin responded that he could do so if he wished.[6]Mr Desai made a written complaint about the events of 16 December 2007, writing on its final pages:
‘Since I have started making complaints about irregularities, unfair treatment and favouritism to all level of management I am facing very hard time from most majority groups and I am not getting any support from management. With here I am announcing that these people can harm me in different ways because I have no matching colour or cast in this base I am a single minority person only believe in truth and hard working may be victimised from working people. Then I may not have any option except but to go to civil and company law.’
[7]On 21 December 2007 Mr Desai raised a further complaint that the SEO had not allocated duties to him. Those to whom duties were allocated were listed in the control room but Mr Desai noticed that one of them turned up for her duty later than she should have done. He attempted, but apparently failed, to photograph the list: the photograph was intended to provide support for his complaints. An added complaint was that two employees, Mr Amudeli and Mr Bisiriyu, shouted at him that he was not allowed to take photographs in the control room. (Mr Desai also complained at the tribunal -- but not in his ET1 -- that Mr Bisiriyu had commented that if he had been in Nigeria, he would have been wiped off the face of the earth). Mr Desai continued his complaint to NCP by saying that he had been warned of the consequences of making so many complaints and that he had been abused and insulted, adding further imprecise complaints. The tribunal said of them:
‘20. The grievances and complaints raised are littered with allegations of such attacks, unfairness, threats but throughout all of the allegations none are specifically set out with specific details or facts which can be investigated. 21. It was the same at the Tribunal. …’
[8]The tribunal explained in paragraphs 21 and 22 that NCP’s Mr Myles had a meeting with Mr Desai and did all he could to find out what he was complaining about. A Mr Ferguson also investigated his complaints and made a report, which he sent to Mr Abayomi. Before Mr Abayomi had come back to Mr Desai with the outcome of the investigation, Mr Desai raised complaints about incidents on 14 and 15 April 2008. These included a complaint that Jennifer, an enforcement officer, had refused to accompany him in his smartcar after he had objected to her using her mobile phone on such occasions, particularly in her own language. Mr Desai had earlier complained about Jennifer’s use of her phone. The tribunal’s finding about that incident, at paragraph 27, is that it was Mr Desai who was refusing to take Jennifer when going out on duty, not Jennifer who was refusing to go with him.[9]In paragraphs 28 to 31, the tribunal explained that Mr Desai’s next complaint was about the number of hours for which he was paid for a period ended 15 May 2008. The tribunal found that NCP was in error in this respect, that Mr Desai had worked a further 8½ hours for which he had not been paid and it awarded him a sum of £70.38.[10]On 15 May 2008 Mr Abayomi wrote to Mr Desai responding to the earlier grievances I have summarised. That led to Mr Desai’s complaint on 1 June 2008 to Mr Adewole, NCP’s Regional Manager, that it had taken more than five months to deal with the investigation, which he said was unreasonable. He complained that his grievances had not been properly investigated. He wrote a letter making generalised complaints that he had been bullied, threatened and abused by a gang of people, making a wrong assertion as to why Norma, a colleague, had been transferred, and asking for how long he had to suffer such threatening victimising behaviour.[11]Mr Adewole’s response to Mr Desai’s further complaints was to invite him to a meeting on 3 July 2008. Mr Adewole gave evidence and the tribunal was impressed by him. He had spent time going through all Mr Desai’s concerns and his assessment was that Mr Desai tried to have incidents treated as grievances whereas many were not grievances at all. He dismissed Mr Desai’s further alleged grievances. He considered that NCP had treated him fairly and told him that, if he wished, he could take the matter to the third stage of the grievance process.[12]In September 2008 Mr Desai complained about Mr Adewole’s decision, referring again to favouritism for a majority group at all levels in NCP and to being bullied, threatened, punished and blamed. Although he did not ask to take the matter to the third grievance stage, NCP dealt with his letter as a third stage grievance and he was given a hearing before Mr Morphew on 25 September 2008, who went through all the matters that had been concerning him. The tribunal found that, despite Mr Morphew’s encouragement and requests, Mr Desai failed to give specific examples of the matters of which he was complaining. In paragraph 38 the tribunal found that insofar as any racist thoughts or tendencies had been held or displayed by anyone, it was by Mr Desai towards others rather than the reverse. He resigned on 15 October 2008.[13]In paragraph 40 and following the tribunal listed the various complaints that Mr Desai made in his claim. As I have said, it explained first that, whilst the spitting incident of 30 November 2007 had been advanced as an incident of race discrimination, Mr Desai abandoned that case at the hearing.[14]In paragraph 41, the tribunal referred to an alleged incident of race discrimination on an uncertain date, being one neither referred to in any incident report, nor one in respect of which a grievance was raised. In paragraph 42, the tribunal referred to an allegation of race discrimination based on an assertion that Tosan had said in early 2008 that ‘Indian food stinks’, but in respect of which again no grievance had been raised. In paragraph 43, the tribunal referred to Mr Desai’s complaint that on 14 and 15 April 2008 Jennifer and Kate had said that it was either the Indians, or only the Indians, who made complaints. If, said the tribunal, that was an allegation of race discrimination, no grievance had been raised in respect of it.[15]Mr Desai had, however, raised a grievance that on 5 September 2008 Josephine had allegedly said that she did not like Indians. He had not, however, included that incident as an act of race discrimination in his complaint, although he had referred to it in paragraph 12 of his statement. The tribunal found in paragraph 44 that it was not satisfied that the incident had occurred. It reached that conclusion because Mr Desai had not mentioned it to Mr Morphew when invited to the interview with him shortly afterwards.[16]The final act of alleged race discrimination advanced by Mr Desai was that NCP had failed to deal with his grievances. He cited Marcin as a comparator, whose grievance, he said, was handled better. But there was no evidence as to what Marcin’s grievance, if any, was about, or how it was handled. So, held the tribunal, Mr Desai had not shifted the burden of proof to NCP.[17]Mr Desai also made a separate allegation of racial harassment. This was that Jennifer had spoken on her mobile phone in her native language, Nigerian, whilst in the smartcar with Mr Desai. The tribunal found that that could not amount to racial harassment.[18]The tribunal dealt in paragraph 47 and following with two allegations of victimisation following the making by Mr Desai of alleged public interest disclosures. The first such alleged disclosure related to Mr Johnson (in relation to the incident referred to in paragraph [3] above). Assuming (as the tribunal did) that that was capable of being a protected disclosure, Mr Desai’s intention was to have Mr Johnson removed. The tribunal appears to have concluded that Mr Desai had not made the disclosure in good faith. But, if it was wrong on that, and the disclosure was a qualifying disclosure, it found that Mr Desai anyway suffered no detriment. His only suggested detriment was that, had Mr Johnson been removed, he could have issued more parking tickets in Russell Street (presumably on the basis that, upon Mr Johnson’s removal, he would have been assigned there). Whilst that might have given him more job satisfaction, it was not relevant detriment. In any event, the tribunal held that there was no causal link between the making of the disclosure and the non-assignment of Mr Desai to Russell Street. That protected disclosure claim therefore failed.[19]The other public interest disclosure asserted by Mr Desai was his complaint that on 3 September 2008 Josephine had commented that she hated Indians. But there was no suggestion that Mr Desai had suffered any detriment after then. As I have said, the tribunal also found that that incident did not take place.[20]Mr Desai advanced a claim of constructive dismissal. The tribunal found that, even if he had raised a grievance in respect of this claim, there was no conduct by NCP justifying Mr Desai’s claim to resign. The claim failed along with all his other claims apart from that for which the £70.38 was awarded.

Mr Desai’s appeal to the Employment Appeal Tribunal; and the present application

[21]Mr Desai’s original notice of appeal to the appeal tribunal was rejected by Underhill J (the President) on the paper sift on the basis that it disclosed no arguable error of law on the part of the employment tribunal. Appeals to the appeal tribunal are of course confined to those based on alleged errors of law. Mr Desai exercised his right under rule 3(8) of the Employment Appeal Tribunal Rules 1993 to produce amended grounds but they suffered the like fate at the hands of His Honour Judge McMullen QC. He then exercised his right under rule 3(10) to an oral hearing with a view to persuading a judge of the appeal tribunal that one or more of his revised grounds merited being considered at a full hearing. It was this application that was heard by Judge Reid. Mr Desai’s argument to him was based on the seven grounds set out in his skeleton argument and Judge Reid dealt with each ground in his judgment. I shall also go through each of them, explain how Judge Reid dealt with them and then explain Mr Desai’s complaints about such dealing before me. Mr Desai argued the grounds before me in the order 3, 5, 7, 1, 2, 4 and 6, but I will deal with them in numerical order.[22]Ground 1 complained about the tribunal’s rejection of the whistle blowing claim relating to Mr Johnson. Judge Reid recorded Mr Desai’s admission that he had not disclosed the position about Mr Johnson with a view to personal gain: he simply wanted Mr Johnson removed from his post so that someone lawfully entitled to fill it could do so. The problem with the claim was that the tribunal found that Mr Desai had no claim because he had suffered no detriment. It followed, Judge Reid held, that this ground of appeal failed.[23]Mr Desai seeks now to argue that he did suffer relevant detriment and he relied on his successful claim that he was underpaid for one particular shift. He says he still has not received the £70.38. That underpayment, the result of an administrative error, was not however detriment flowing from the disclosure. It was wholly unrelated to it. Mr Desai said that the tribunal could have drawn an inference that it was related. I do not, however, accept that there is any basis for that assertion and it does not appear that any such suggestion was advanced either to the tribunal or to Judge Reid. There is no arguable basis for asserting that the whistle blowing claim in relation to Mr Johnson gave rise to any detriment. Like Sir Richard Buxton, I would refuse permission to appeal on this ground.[24]Ground 2 concerned the spitting incident. I have summarised how the tribunal (in paragraphs 10 and 40) recorded that Mr Desai accepted that the incident did not involve any race discrimination towards him and that he abandoned this part of his claim. Judge Reid recorded that in respect of this incident Mr Desai asserted some alleged violation of his human rights and that the tribunal had misrepresented his evidence. He rejected this incident as giving rise to any ground of appeal.[25]Mr Desai now wants to argue that Mr Johnson’s conduct was an act of race discrimination and he asserts that he had always so claimed in the lead up to the tribunal hearing. That may well be so, but the tribunal’s finding was that he abandoned that claim at the hearing. I understand Mr Desai to claim that the tribunal misrepresented him in that respect and that he made no such concession. If so, it is too late to seek to raise such a point. He could have asked the appeal tribunal to direct the production of the Employment Judge’s notes of that part of the hearing to see what they recorded (although whether the appeal tribunal would have made such a direction, I cannot say). But his attempt to re-open this issue at this stage and before this court is hopeless. The Court of Appeal is not going to direct any inquiry as to whether the employment tribunal did or did not misunderstand his position in relation to this part of his claim. There is, on the face of the tribunal’s judgment, a clear finding that he abandoned it and that is the end of the matter. Like Sir Richard Buxton, I refuse permission to appeal on this ground as well.[26]Ground 3 was said by Judge Reid not to be in Mr Desai’s amended grounds of appeal at all and Judge Reid did not, therefore, consider it. Mr Desai submits that that was wrong. Ground 3 related to the incidents of 14 and 16 December 2007 in respect of which he raised written grievances to which the employment tribunal referred in paragraphs 11 to 14. Mr Desai’s pleaded complaint about these matters in paragraph 8 of his ET1 was as follows:
‘8. The Claimant had also lodged separate grievances on 14th December 2007 and 16th December 2007 against Martin [sic: perhaps, I am not sure, it should be Marcin] because of unfair treatment. Martin is the senior enforcement officer of the Respondent and is Polish and he had to choose 2 out of 8 people to sit on camera i.e. to do the job at night shift. Martin chose a Polish employee and his girlfriend who is from Somalia. In other cases, when senior enforcement officers are told to choose, they choose by lottery method. The Claimant was shocked to hear the Respondent inform him that these issues raised in his grievance of 14th and 16th December 2007 were not serious.’
[27]The last sentence of paragraph 8 is, I presume, a reference to the outcome of the investigation into the grievances. Mr Desai explained the nature of this complaint to

Judge Reid in his skeleton argument as follows:

‘The act was under Section 3AA and failing to respond and not investigating it is a serious violation of ACAS code of practice (Disciplinary and Grievance procedures). ET failed to give judgment.’
The last sentence of that paragraph summarises Mr Desai’s complaint under this head, namely that although the employment tribunal referred to the facts relating to this matter, they made no decision on it.[28]I regard as obscure what issue in relation to this incident Mr Desai expected the tribunal to rule upon. Paragraph 8 does not raise any overt allegation of a justiciable complaint against NCP. In particular, it does not, at any rate expressly, allege race discrimination on the part of Marcin, and I fail to see why it should be interpreted as impliedly doing so. The expression in it of Mr Desai’s alleged shock adds nothing. A clue as to what paragraph 8 may be about is that it is in a section of the ET1 headed ‘Constructive Dismissal’, the first paragraph of which asserts that NCP had:
‘… ignored the Claimant’s grievances on several occasions by not properly investigating [them] and therefore the Claimant was not happy because proper attention was not paid by the Respondent to the Claimant’s grievances.’
As it seems to me, the likely sense of paragraph 8 in its context is that it was referring to the grievances of 14 and 16 December 2007 as examples of grievances said not to have been properly investigated. To what extent Mr Desai sought to make that good before the tribunal, I do not know. What I do know is that the tribunal rejected the constructive dismissal claim on the facts, finding that the NCP had done nothing likely to damage the relationship of trust and confidence. That is a finding with which Mr Desai is fixed and he has produced nothing to suggest that it was perverse or even arguably so.[29]It appears from Mr Desai’s grounds of appeal to this court that he now wishes to assert that his complaint about events of 14 and 16 December 2007 were acts of race discrimination with which the tribunal did not deal. As I have said, such a case is not clearly asserted in paragraph 8 of the ET1; and it is impossible for me to know how, if at all, Mr Desai sought to deploy these particular matters before the tribunal. In that respect, if I may say so, he may not have helped himself by (according to the tribunal: see paragraphs 20 and 21 of its reasons) presenting a case burdened with imprecise allegations and complaints. I infer that the tribunal was faced with a considerable degree of forensic overload, perhaps advanced by Mr Desai on the mistaken basis that if enough allegations are advanced, one or more may stick. I reject any suggestion that the tribunal erred in law in failing to make any decision arising out of the paragraph 8 allegations. I do not understand what, if any, specific decision on it the tribunal was supposed to make. I refuse permission to appeal on this ground.[30]Ground 4 was to the effect that Mr Desai had raised various complaints that had not been properly dealt with by the tribunal. These are the matters which the tribunal dismissed summarily in paragraphs 20 and 21 as involving allegations that were too imprecise to be capable of investigation. Judge Reid held that the tribunal was entitled to deal in this summary way with such allegations.[31]Mr Desai has put no material before the court that begins to make a case that there were any allegations that the tribunal ought to have considered but did not. He makes the point in his skeleton argument that neither NCP nor the tribunal investigated the matter and so, he says, ‘how can the court miraculously expect to find specific details or facts?’ He may not understand that it was not for the tribunal to involve itself in some sort of inquisitorial investigation of his complaints. If he had a complaint that he believed entitled him to a remedy, it was for him to assert it with proper specificity and to prove it. The tribunal’s point in paragraphs 20 and 21 is that, in relation to a number of imprecise allegations, he failed to do this. Judge Reid’s conclusion that the tribunal was entitled to deal in that summary way with this aspect of Mr Desai’s case was a rational disposal of Mr Desai’s complaint about the tribunal’s handling of the matter. There is no real prospect of a successful appeal against his conclusion in that respect. Like Sir Richard Buxton, I too would refuse permission on this ground.[32]Ground 5 related to a matter which Judge Reid recorded Mr Desai as accepting was not in his ET1. On that basis, Judge Reid said that the matter was not before the tribunal and so it was hardly surprising that the tribunal had not dealt with it. Nor could it be dealt with by the appeal tribunal.[33]Mr Desai disputed before me that he accepted any such thing before Judge Reid and he explained to me that the relevant allegation is pleaded in paragraph 9 of his ET1, as follows:
‘9. The Claimant submitted further grievances on 14th and 15th April 2008, about an employee of the Respondent by the name of Jennifer. The Claimant complained that she was always speaking in her language, and always using her mobile phone. The policy of the Respondent prohibits any employee from speaking in another language other than English, or to use a mobile phone whilst at base. The Claimant was not happy about the outcome of the grievance because no grievance hearing was held for this matter despite the fact that an employee breached the Respondent’s policy.’
[34]The case made therefore appears to have been a complaint about the handling of the grievance about Jennifer’s alleged conduct rather than a complaint based on such conduct. That is consistent with paragraph 9 being in the section of the ET1 complaining that the failure to investigate grievances was the basis of the constructive dismissal claim. By the time, however, that Mr Desai came to prepare his revised grounds of appeal for the appeal tribunal, this head of complaint was reflected in paragraph 1 as follows:
‘The allegations of victimisation and public interest disclosure dated 14/15 April 2008 have been mentioned but not been acknowledged in judgement as outcome which either means fail or success.’
The paragraph 9 complaints were not pleaded as based on either victimisation or public interest disclosure. Ground 5 of the grounds of appeal before this court changed the colour of the allegations yet again:
‘Incident of victimization, race discrimination and racial harassment by more than 4 co employees dated 22/04/08, a part judgement was made but failing to acknowledge the related claims paralysed the prospect of a fair investigation, which is biased and wrong.’
[35]The ground 5 case has therefore now expanded to a complaint against four employees, whereas paragraph 9 of the ET1 was confined to a complaint about the investigation into his complaint about Jennifer. The incident date has now also changed to 22 April 2008, although I understand that to be when Mr Desai made his complaint. The employment tribunal dealt with the Jennifer mobile phone/foreign language incident in paragraphs 26 and 27, where they summarised the facts; and what they said in paragraph 57 showed that they understood Mr Desai’s case in this respect to be simply one of racial harassment, which they rejected on the basis that no such case was made out. I infer that they did not understand him to be raising any allegation upon which any finding of victimisation or race discrimination was required.[36]I refuse permission to appeal on this ground as well. If Mr Desai feels aggrieved that the case he thought he was making, or intended to make, was not duly considered or understood by the tribunal, that is of course unfortunate. It appears that he is saying that Judge Reid also misunderstood his position. The tribunal had, however, to do their best to understand the case he was making at the time and to rule upon it. I am not satisfied that it misunderstood that case or failed to deal with it sufficiently. I refuse permission to appeal on this ground too.[37]Ground 6 gave rise to more solid grounds for concern by Judge Reid. In paragraph (v)(b) of the tribunal’s judgment, the tribunal ordered that one of the dismissed allegations of race discrimination was ‘Jennifer complaining on 3 September 2008 that she hates Indians.’ Judge Reid pointed out that there were two things wrong with that. First, the alleged incident occurred on 5 September, not 3 September. Secondly, the woman involved was not Jennifer, but Josephine.[38]In the tribunal’s reasons, both errors were corrected. In paragraph 44, the tribunal gave the correct date and name. But that paragraph then itself contained a further error, by saying that Mr Desai had not included that allegation in his complaint. Judge Reid pointed out that it was in fact included in paragraph 12 of Mr Desai’s particulars in his ET1, where he wrote:
‘On 5 September 2008 the Claimant lodged another complaint about the Respondent’s employee, Josephine, and other employees’ racist behaviour towards him. The Respondent never handled complaints appropriately, and therefore the Claimant was unhappy.’
[39]As I have said, the tribunal then made a finding that anyway the alleged act of discrimination by Josephine had not occurred. Its reason was that Mr Desai had not mentioned it to Mr Morphew at the interview shortly afterwards. Judge Reid concluded, however, that the factual basis for that finding was unsound. That was because the note of the record of the interview with Mr Morphew on 25 September 2008 included a reference to an incident report form dated 10 September 2008, which included this:
‘On 5/9/08 night shift are to receive this attached letter copied herewith. I heard from EO4081 and Josephine they don’t like Indians and saying also that they hate Indians. Also called me “human CCTV”.’

Judge Reid dealt with this point as follows:

‘15. It does not seem to me in those circumstances that the basis on which it is said, that was not mentioned is entirely accurate. However, it is fair to say that the point does not appear to have been taken up with any vigour. There is simply a reference to the complaint form. The form itself is in pretty generalised terms and I think one can safely look back to the earlier remark by the Tribunal that grievances and complaints are raised or littered with allegations of such attacks, unfairness, and threats but throughout all of the allegations none have specifically set out the specific details or facts which can be investigated. 16. The case may be fairly near the borderline but it does seem to me that, near the edge though this may be, I cannot properly say that there is a case which should go further on an assertion that this finding is one which is perverse. Given that, I am, it seems to me stuck with a finding of fact by the Tribunal which can be justified firstly on the basis that the complaint in the particulars is a complaint relating to the investigation rather than to the original incident and, secondly, the vagueness of the allegation and the lack of emphasis on it in the interview with Mr Morphew. It follows that I think it would not be appropriate to allow this appeal to go forward on that particular ground.’
[41]Sir Richard Buxton refused permission on this ground, saying that the appeal tribunal:
‘… gave careful consideration to this ground, and indicated that it was nearer to the borderline than the other grounds, but its conclusion that it did not raise an issue sufficient for consideration by the EAT cannot be said to involve any error of law.’
[42]I agree. The proposed appeal to this court is against the decision of the appeal tribunal and in my view Judge Reid was properly entitled to consider that ground 6 did not merit being permitted to go forward to a full appeal on notice to NPC. The way I would myself assess is it that, again, the only pleaded case that Mr Desai was making in relation to the Josephine incident on 5 September (in paragraph 12 of his ET1) was that NCP failed to handle his complaint about it properly. It is true that the tribunal may have misunderstood his case as complaining about Josephine’s remark, rather than about NCP’s handling of his complaint about it. But there can be no good reason to allow an appeal on this head of ground to go forward. The only outcome of it, if successful, could at most be a remission to the tribunal to consider the case that Mr Desai actually pleaded in paragraph 12. There would, however, be no point in a re-hearing of that case because in paragraph 56 the tribunal rejected Mr Desai’s complaint about the way in which NCP had handled his grievances, by saying that there was ‘no evidence at all to shift the burden of proof in respect of the failure to deal with grievances over to the Respondent. That aspect of the claim cannot succeed and is dismissed.’ Mr Desai therefore failed to make good that head of his complaints, and he cannot be entitled to a second bite at the same cherry. Like Sir Richard Buxton, I therefore refuse permission to appeal on ground 6 as well.[43]Judge Reid dealt finally with Ground 7, which he said raised complaints that had not been advanced in Mr Desai’s ET1, nor were they matters upon which the tribunal had been asked to adjudicate. He also rejected that as raising a valid ground of appeal.[44]Once again, Mr Desai disagreed with Judge Reid. He referred me to paragraphs 3 and 4 of his ET1, under the heading ‘Constructive Dismissal’. They read:
‘3. The Claimant submitted his letter of resignation to the Respondent on 15th October 2008 because the Respondent NCP ignored the Claimant’s grievances on several occasions by not properly investigating the Claimant’s grievances and therefore the Claimant was not happy because proper attention was not paid by the Respondent to the Claimant’s grievances. 4. The Claimant asserts that there was a breakdown of trust and confidence, as well as breach of duty of care on the Respondent’s part, and that he has also been victimised by the Respondent, which has led to his constructive dismissal for the following reasons in particular, whistle blowing, bullying, harassment and unlawful act of discrimination and victimisation.’
Mr Desai’s complaint here is that the tribunal did not investigate the facts properly and so did not deal, either properly or sufficiently, with his complaint under this head.[45]I also reject this head of complaint about the tribunal’s decision. As summarised in paragraph [42] above, the tribunal rejected on the facts the assertion that NCP had not properly investigated Mr Desai’s complaints. It also rejected on the facts all his other complaints. It was not for the tribunal to ‘investigate’ the facts, it was for the parties to make their respective cases before the tribunal on the issues raised before it and for the tribunal to make its decisions on them. The tribunal did so. There is no basis for a generalised complaint that the tribunal did so insufficiently, or on a basis that betrayed any error of law. I also refuse permission to appeal on ground 7.[46]The result is that I refuse permission to appeal on all grounds.