MR J MASIH v (1) TIME COMPUTERS (2) MR S MASTERS [2001] UKEAT 1233_00_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1233_00_1607Case No Appeal No. EAT/1233/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J MASIHAPPELLANT(1) TIME COMPUTERS (2) MR S MASTERSRESPONDENT
Before
Mr Justice Douglas Brown Ms N Amin Mr B V FitzgeraldDate 16 July 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE DOUGLAS BROWN Mr Jatinder Masih has not appeared today. He has a record of not appearing at hearings of this Appeal Tribunal. We therefore propose to proceed in his absence.[2]His appeal is from a decision of the Employment Tribunal at Bedford, Chairman Mr P Robjant, dismissing his claim against the Respondents, Time Computers Ltd and Mr S Masters, the Second Respondent, of racial discrimination. He was employed from 31 January to 29 December 1999 as a sales assistant. The Respondents have two in-store concessions in adjoining units at the Kempston Retail Park in Bedford, one in the Powerhouse unit and the other in the Office World unit. The two concessions were managed by a single manager and the staff worked at various times at each unit. Mr Masih, who is of Asian extraction, was first employed mainly in the Office Word unit. He had a good relationship with the first two managers he worked with. However, Mr Masih and a young colleague of his, Daniel Moore, were criticised by the manager of the Office World unit, Christine Carey. She believed that they had been distracting her Office World staff by chatting to them. Then in October 1999, Mr Masters, the Second Respondent, was transferred to become manager of the two Bedford concessions. Mr Masih made a number of allegations about Mr Masters, that he had made overtly racist comments. He denied that. The Tribunal having heard from both of them were not satisfied that those comments were made. Christine Carey - who was not a witness - informed Mr Masters that she suspected Mr Masih of stealing about £2,000 worth of stock including some CD ROM's. Mr Masters was unwilling to accept that but he did make enquiries and he spoke to Mr Moore who told him that Mr Masih had admitted to him that he had taken goods from Office World. The Tribunal said this in the course of their findings:
"We find that during the interview Mr Masih accused both Miss Carey and Mr Masters himself of being racist, and he had tried to blackmail Mr Masters by saying that if Mr Masters dropped the charges against Mr Masih, he would drop the allegation of racism. Mr Masters terminated the interview. He did not follow up the allegation that Christine Carey was racist. It did not occur to Mr Masters that Christine Carey might have made her allegations in bad faith."
Mr Masih was suspended on full pay pending investigation. The investigation and the disciplinary process (if it can be called that) that followed was unsatisfactory. Mr Masters consulted his immediate manager who recommended dismissal on the suspicion of theft. Mr Masters at that point went on paternity leave and it was not until some weeks later, at the end of December, that he saw Mr Masih and dismissed him on those Grounds.[3]The Appellant accepted that he could not bring unfair dismissal proceedings because of the length of the employment. He claimed that he had been racial discriminated against by the Respondents by being dismissed. There was a sub reason, this was because he was Asian but also because he had informed them that he wanted to join the local police. The Tribunal accepted that Mr Masters conducted the disciplinary aspect of the matter and the decision to dismiss in a far from perfect way but they accepted the denial of the Respondents that it was not on the Grounds of race. The Tribunal was very critical of Mr Masters. He did not put to Mr Masih all the evidence he had collected or give him an opportunity to respond. He did not identify Mr Moore as the source of information for fear of reprisals and he delayed before informing Mr Masih of the decision to dismiss. The Tribunal decided that while of those matters went to the reasonableness of the decision to dismiss none went to the issue of race.[4]The hearing itself took four days and there was a wide range of controversy. The Tribunal did not decide all the issues in controversy, for example, they did not decide whether Mr Masters had spoken to Christine Carey in his office or in hers, whether he had searched Mr Masih's car or not. They said they were not able to resolve all those conflicts. However, having reviewed the evidence available to Mr Masters, they were satisfied that the reasons were solely connected with the allegation of suspicion of theft.[5]The Grounds of Appeal are extremely lengthy. Most are directed to showing that the Employment Tribunal came to a conclusion of fact not supported by the evidence. One specific error of law is suggested in Ground 2, that the Tribunal misdirected itself as to the proper test to be applied in drawing proper inferences from the failure to undertake an adequate or fair disciplinary procedure and that was capable of being based on the Grounds of race. Ground 3, with extensive examples, complained that the Employment Tribunal acted perversely in that its reasons were non-existent or inadequate. In Ground 5 the Grounds say that the Tribunal misdirected themselves in law or made a procedural error by not making relevant findings of fact which they were duty bound to do rather than as they did the contentious matters below. The Grounds of Appeal sets out at (a)-(m) areas of factual dispute left unresolved.[6]We have carefully examined all these criticisms of the decision. The Extended Reasons themselves are not lengthy but in our view they review the relevant material and come to a conclusion that cannot be successfully challenged. The suggestion that the reasons were non-existent or inadequate wholly fails. We are of the view that the Tribunal did not misdirect itself in law as complained of in Ground 2. The law is helpfully summarised in the reasons and the reference to the leading cases of King v Great Britain China Centre [1991] IRLR 513 and Zafar v Glasgow City Council [1998] IRLR 36 are accurately summarised. Ground 5 is based on the undoubted principal governing findings of fact both in Tribunals and Courts, namely, that the fact finding body must decide disputed areas of evidence and cannot duck the issue. That does not mean however, that every factual issue created by advocacy has to be followed up and decided. Where the evidence is lengthy a Court or Tribunal is entitled to be selective and to decide only the core issues of fact which underlie the decision. We looked to see whether in fact the Employment Tribunal here did that. At paragraph 12 of the their reasons they say this:
"But notwithstanding the wide range of controversies in this case, the salient facts are clear. Mr Masters received a credible complaint from Christine Carey of her suspicions of Mr Masih. Mr Masters confirmed the essence of that complaint by speaking directly to Mr Moore. Mr Masters believed that the response from Desa Chopra [who, we interpose to say, was another young man working with the Appellant] corroborated the suspicions of Mr Masih that he had already formed. We are satisfied that there were reasons which motivated Mr Masters in dismissing Mr Masih. We find no evidence to support either the incidental complaints of racial discrimination, nor the principal complaint of discrimination by Mr Masters in his dismissal of Mr Masih."
[7]In our view the Tribunal's approach cannot be faulted. They identified the salient facts from the bulk of the evidence before them. They decided those facts and left unresolved other factual issues. There must be a limit to the fact finding exercise. Parties are not entitled to a decision on each and every issue which is raised before them whatever its significance. In the result, looking at this decision overall, there is no arguable ground left to go forward to a Full Hearing and this appeal is dismissed.