MR MOHAMED BENALI v FIRST QUENCH LIMITED [2000] UKEAT 794_00_2011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 794_00_2011Case No Appeal No. EAT/794/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR MOHAMED BENALIAPPELLANTFIRST QUENCH LIMITEDRESPONDENT
Before
His Honour Judge H Wilson Mr K EdmondsonDate 20 November 2000
[1]APPEARANCES For the Appellant MR PETER LOWNDES (of Counsel) Appearing under ELAAS JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the applicant in the original proceedings against the decision of the Employment Tribunal sitting at Ashford for several days in March 2000, that the applicant's application failed and was to be dismissed. The original application had complained of unfair dismissal including racial discrimination. The appellant had had put in on his behalf a skeleton argument together with a Notice of Appeal and an application for amendment of that notice. He has today been represented by Mr Lowndes of ELAAS who disassociated himself from the part of the skeleton argument up to and including paragraph 5(vi) and the grounds of appeal to which those paragraphs refer.[2]We say at once that having considered those submissions in those paragraphs in the light of the decision of the Employment Tribunal we dismiss them as having no prospect of success upon full argument.[3]There remained paragraph 5(vii) and that complained that, the surveillance camera having been set up to try to catch employees removing stock, the appellant was singled out without justification over white staff as a prime suspect and it went on to submit that the surveillance by video was in breach of Article 8 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998 .[4]Mr Lowndes amplified that ground and put in a manuscript proposal to add grounds of appeal as follows:
"The tribunal erred in law in failing to consider the extent to which the appellant suffered racial discrimination in the investigation conducted by Ms Aplin-Smith in regard to the steps taken in the investigation prior to the appellant's dismissal." and secondly: "
The tribunal erred in law in finding that the investigation referred to above was not a matter which could properly be considered as part of the appellant's complaint of racial discrimination as it was a matter which took place after the appellant's dismissal." So far as the latter is concerned Mr Lowndes invited us to stay that ground of appeal pending the outcome of the case of De Souza v London Borough of Lambeth which is under consideration by the Court of Appeal.[5]What Mr Lowndes complained about on behalf of the appellant was the way in which Ms Aplin-Smith went into the matters of complaint that he had made on 1st February following his suspension and a fortnight before his summary dismissal. Those complaints concerned working conditions, racial abuse and the dismissal itself. Mr Lowndes submits that the tribunal erred in law in failing to consider whether the way in which Ms Aplin-Smith went about it did not in itself constitute an act of racial discrimination so far as the respondent was concerned.[6]The judgment of the Employment Tribunal runs to 20 pages of carefully argued consideration of the matters that had been put before them in the context of the law as to which they had directed themselves. In paragraph 22 they deal with the investigation by Ms Aplin-Smith who apparently took the view that none of the issues raised by Mr Benali had led to his dismissal. He was summarily dismissed for gross misconduct due to an act of severe indecent behaviour likely to offend other employees. We note that she also said that he had not lodged a grievance at the time and if that had been done the company would have had the opportunity to investigate and resolve issues at the time.[7]We turn to the decision of the Employment Tribunal and we note that each of the headings of complaint which were not considered by Ms Aplin-Smith were in fact considered by the Employment Tribunal in the course of its lengthy decision and in each case they found either that the complaint was not made out or that they were not satisfied that things had happened as described by Mr Benali. Those are decisions of fact behind which this Appeal Tribunal is not allowed to go. But it has a consequence, if Ms Aplin-Smith had done the investigation Mr Lowndes complains was not done, and her conclusions had been different from the tribunal's the tribunal would still have been entitled to find as it did. If, on the other hand, she had gone into things and come to the same conclusion as the tribunal, then obviously the tribunal would have adopted those findings as well. Either way, it seems to us that the tribunal did take into account everything that Mr Lowndes says should have been taken into account by Ms Aplin-Smith.[8]In those circumstances, it seems to us, that the first ground that Mr Lowndes seeks leave for, which embraces the ground in paragraph 5(vii) has no chance of success on full argument and we reject it.[9]That being the case, the second limb of his submission, concerning the staying of the other aspect of his point, falls away necessarily. Accordingly we consider that this application to appeal must be dismissed at this stage.