MR S NAZREN v GATE GOURMET LONDON LTD [2008] UKEAT 0454_07_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0454_07_1902Case No Appeal No. UKEAT/0454/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S NAZRENAPPELLANTGATE GOURMET LONDON LTDRESPONDENT
Before
Mr Justice Wilkie Mrs R Chapman Mr K EdmondsonDate 19 February 2008
[1]APPEARANCES For the Appellant MR A ELESINNLA (of Counsel) Instructed by: Messrs J R Jones Solicitors 58 Uxbridge Road Ealing London W5 2ST For the Respondent MR J LEWIS (of Counsel) Instructed by: Messrs Clarks Legal LLP Solicitors One Forbury Square The Forbury Reading Berkshire RG1 3EB SUMMARY Unfair Dismissal / Race Discrimination / Victimisation The Employment Tribunal was entitled on the evidence before it to reject the various claims made by the Appellant on grounds of fairness, race discrimination, and victimisation. THE HONOURABLE MR JUSTICE WILKIE Factual and procedural background The Appellant had been employed by the Respondent since March 1990. In 2004 he was promoted to the position of despatch controller and was responsible for the supervision of 18 members of staff.[2]On Saturday 25 February 2006 he was working a morning shift between 4am and noon. Upon leaving the premises at the end of his shift, having taken off his overall, he made to leave the building via the security gate. He was routinely stopped by the security guards and searched. In his trouser pocket were three packets of Walkers biscuits. When asked where he got them from he claimed that he had brought them in from outside. The shift controller Mr Sukhija and Mr Gateau the duty controller were summoned, accompanied the Appellant to the duty office, consulted the duty manager Mr Tiwari and the Appellant was allowed to go home.[3]At approximately 3.30pm on the same day Mr Pim, the Process Manager phoned the Appellant and informed him that he was suspended on full pay pending investigation of the incident.[4]On 27 February 2006 Mr Khangura, section manager, wrote to the Appellant inviting him to attend an investigatory meeting on 2 March 2006. In advance of that meeting on 1 March 2006 Mr Khangura conducted his investigations which included taking statements from three security guards and speaking to Mr Kandhari and Mr Sukhija. On 2 March the investigatory meeting took place with, amongst others, the Appellant and Mr Kandhari as his friend in attendance. At that meeting the Appellant admitted that the biscuits were not from outside, that he had picked them up earlier in the shift meaning to take them back to where they should have been and, when searched by the security guards, had panicked and told a lie. He also accepted that he had not owned up having given a false account when, on that same afternoon, he had been telephoned by Mr Pim for the purpose of suspending him.[5]On 6 and 13 March, in the course of the investigation, Mr Khangura interviewed Mr Tiwari and Mrs Bhatti, a checker, each of who confirmed that the biscuits matched the Respondent's stock.[6]On 14 March Mr Khangura produced a document entitled "Investigation Summary" which included the following statement:
"Mr Nazren maintained originally that he had brought the biscuits into the unit for consumption. However, he changed his story when I interviewed him, stating at the time he was searched, that he was in shock when he realised he had them in his possession and said the first thing that came to his mind. On the day of the search, even though he had a number of opportunities, at no stage did he mention to anyone that he had found them and had forgotten to return them to Trayset. Mr Nazren in my opinion was in possession of Company property and moreover was fully aware of company rules and regulations, being in possession of company/customer property is considered an act of gross misconduct. For this my recommendation would be that there is a case to answer. This should be put forward to the next level for a disciplinary hearing."
[7]On 27 March the Appellant was written to by Ms McBride, Process Manager Production. She informed him of Mr Khanguras's investigation and invited him to attend a formal disciplinary meeting on 22 March. She said that disciplinary action in accordance with the company's disciplinary procedure would be considered at the meeting, and she enclosed a copy of the company's disciplinary procedure.[8]The disciplinary hearing took place on 22 March. In that meeting the Appellant stated that he had found the biscuits within the company's premises, was going to take them back to where they should have been, but failed to do so because he forgot, by reason of the fact that he had to rush home because his wife was very ill and he had to open the door for the cleaner. He acknowledged that he had told Security that he had brought the biscuits in with him and explained that he had panicked as he had to reach home by a certain time to open the door for the cleaner and he said the first thing that came into his head. At the conclusion of the meeting Ms McBride said that he had been found with the items on him, he admitted to having them and that that was gross misconduct. The penalty for that was dismissal and that was the sanction she was imposing. She informed him of his right to appeal against that decision.[9]On 23 March she wrote a letter to Mr Nazren confirming the decision to terminate his contract of employment under the company disciplinary procedure, the reason for the dismissal being "misappropriation of company property".[10]On 29 March the Appellant appealed to Mr Woodhouse the General Manager. He believed the penalty was too harsh. No account had been taken of his 16 years unblemished loyal service with the company. The appeal hearing took place on 6 April. It was chaired by Mr Gill the Deputy General Manager. Mr Gill had with him Mr Yeshin of Human Resources and the Appellant was represented by Mr Egan the full time official of Amicus. The Appellant was given the opportunity to explain why he was appealing. He referred to his 16 years of service and good record; he had never on previous occasions been found with company property when searched and his area of work was always kept tidy. Mr Gill asked if there was anything new that he would like to raise, and the Appellant said that he did have the biscuits but explained that on that day he had had many problems, referred to his wife having called to say that she was not well and that he should get home to let the cleaner in. He agreed that he had lied at the gatehouse and agreed that he should not have done so. At that point Mr Gill adjourned the meeting. After the adjournment Mr Gill said that he had reviewed the comments made in the first part of the meeting and there was no new evidence. Mr Gill, in his evidence, said that he had made clear to the Appellant at that point that his appeal was not going to succeed. At that juncture Mr Egan said he would like to make a submission on behalf of the Appellant. He was permitted to do so. He raised certain procedural issues concerning the manner in which the Appellant had been suspended. He submitted that the punishment did not fit the crime given the trivial value of the biscuits involved, asked the company to take into account length of service and good employment record and, whilst acknowledging that dismissal was "within the parameter of the sanction that could be taken," asked for another sanction to be substituted. At the end of the meeting Mr Gill thanked Mr Egan for his submission, said that the issue was one of theft, that he would look carefully at the issues that Mr Egan had raised and would get back to them in approximately 7 days. At that point Mr Egan passed another document to Mr Gill which was an incident report concerning another case of theft which had not resulted in the person's dismissal and asked the company to look at that, in terms of consistency.[11]On 11 April Mr Gill wrote indicating the outcome of the appeal. In the meantime Mr Gill had considered the case of Mr Haynes whose case was the subject of the documentation passed by Mr Egan. He received an e-mail from Mr Yeshin on 7 April reporting the outcome of his investigation in respect of Mr Haynes. That read as follows:
"1 st March was stopped by security and he was found to have hand lotion. He was taken over to the KC office and was seen by Mark Beardsly and Sunny Sandhu (22.50). As there was no shift manager on duty and as the man was not a danger they decided to hand the matter over to the shift manager Paul Deegan for him to sort out in the morning. I spoke with Paul and he said he knew nothing of the matter. However Sunny has given me a log report which clearly states what went on. Paul would have seen this. So Haynes was never investigated and therefore by default no decision to either dismiss or not. Apart from a fall down in process it is not relevant to the Nazren case but Tony might want to follow up."
[12]On 10 April Mr Gill held a meeting with Mr Woodhouse at which the matter was discussed. In his witness statement Mr Gill stated that the consensus was that it was a case of theft and should be dealt in line with company policy. Mr Gill considered the argument of inconsistency but did not, having had it investigated, consider it to be relevant. He did have regard to the fact that the Appellant had lied and that his position as a controller, a position of trust, meant that his conduct had caused them to lose trust and confidence in him.[13]Accordingly on 11 April he wrote to the Appellant confirming the dismissal. He said amongst other things as follows:
"We feel the company had reasonable belief that a theft had or was taking place based on the statements as outlined to us. There was no new evidence raised at the appeal hearing for us to reverse this decision. Mr Kevin Egan on your behalf asked that we should take into account process issues as well as your service and employment history asking that we may want to reconsider the severity of punishment to that of the action taken by the company. We gave careful consideration to this. The issue is that theft of any kind is gross misconduct which comes with the penalty of dismissal. All employees have been made fully aware of this. At the time of the incident you were employed as a Controller, a position of trust, and we now feel that we have lost trust in you and cannot reemploy you with less of a sanction. In confirming this decision we also took into account the process issues raised but felt under the circumstances this did not impact on the core reason for the dismissal."
[14]On 21 April the Appellant wrote to Mr Gill instigating a step 1 grievance. He raised the following issues: first: the Respondent had not followed the laid down statutory procedure in relation to his dismissal - not advised of his right to be accompanied, no written statement prior to suspension; second: the decision to dismiss was not consistent with the previous outcome in relation to similar issues of conduct. He concluded that, as a result, he had been unfairly dismissed.[15]On 24 May Duncan Lavery, the Deputy General Manager, responded to that grievance. He dealt with both the procedural matters and the alleged inconsistencies. As to the former, he engaged in a point by point analysis and refuted the issues raised. In respect of the allegation of inconsistency of approach he said as follows:
"The … Disciplinary policy clearly states that theft is regarded as Gross Misconduct, the penalty for which is dismissal and each case is judged on its own merits, based on the outcome of investigations. I find that the above bears no relevance to your particular case."
Accordingly the grievance was rejected.[16]On 14 June the Appellant raised a further grievance with the Respondent. In that grievance he said that he believed that his dismissal was discriminatory on the grounds of race. He specifically raised the incident of Mr Haynes, who is white and of British origin, as evidencing the discriminatory nature of his dismissal. Furthermore, he stated that his disclosure of that incident amounted to a protected disclosure under the Public Interest Disclosure Act and that the Respondent's failure to deal with it or to take it into consideration constituted victimisation. He also alleged that the letter of Mr Lavery dismissing his grievance constituted a further act of race discrimination, victimisation, breach of contract and breach of disciplinary procedures.[17]On 21 June the Appellant commenced his first tribunal claim. In that document he set out the history of the matter, including his dismissal, the appeal against dismissal and the grievance. He asserted that he had been unfairly dismissed and his dismissal also amounted to unlawful racial discrimination. In relation to the latter claim he relied not only on Mr Haynes as a comparator but also a hypothetical comparator. He claimed that Mr Lavery's failure to investigate his grievance properly and his dismissal of his grievance was racially discriminatory. He relied, in respect of that aspect of the matter, on a hypothetical comparator.[18]There was a delay in the Respondent dealing with the second grievance. It was not dealt with until 29 August 2006. The outcome was a letter from Victoria Woodison, the senior human resources business partner, which dealt with the alleged breach of company disciplinary procedures, the alleged failure to deal with protected disclosure and the alleged race discrimination and rejected the grievance on each.[19]On 31 August 2006 the Appellant commenced the second tribunal claim. That claim was in respect of the second grievance. The complaint made was that the Respondent had failed to respond to the grievance. It was said that this constituted unlawful, post employment, victimisation arising from the protected acts of drawing Mr Haynes's case to their attention, raising a grievance on 21 April, commencing the first proceedings, and raising the second grievance dated 14 June 2006. The act of victimisation complained of was the Respondent's failure to deal with his grievance dated 14 June.[20]The hearing of both claims took place between 19 and 22 February 2007. The reasons were sent to the parties on 28 March 2007. At paragraph 1 of the reasons the issues were said to have been defined by a chairman of the Employment Tribunal on 9 October 2006. It was also recorded that the Appellant, through his representative, withdrew his complaints under section 47 of the Employment Rights Act 1996 at the conclusion of the evidence. Thus, the claims to be dealt with were: first whether he had been subject to racial discrimination; second whether he had been unfairly dismissed; and third whether he was victimised. The conclusion of the Tribunal was that he had been fairly dismissed and that his complaints both of direct discrimination and victimisation were dismissed.[21]The Appellant launched an appeal against the Tribunal's decisions. That was dealt with on the papers by HHJ Serota QC on 15 May 2007. He issued a direction under Rule 3 that the appeal disclosed no reasonable grounds for bringing the appeal. The matter was then subject to an oral hearing before HHJ McMullen QC on 17 August 2007. That was based upon the original Notice of Appeal but amended so as to raise a fifth ground of appeal to the effect that the Employment Tribunal had failed to deal with the victimisation complaints either properly or at all in its decision.[22]The order made by Judge McMullen on 23 August gave leave to amend. In addition the following directions were made:
"6…the Employment Tribunal Chairman be requested to provide the Employment Tribunal's findings and reasons,…in relation to: a. Victimisation… b. Paragraph 4(i) 0 (iii) of the Notice of Appeal dated the 9 th day of May 2007. 7. The Employment Tribunal is requested to provide its findings and reasons… by reference to its Notes of Evidence and without the need to adduce or allow the adduction of any further oral evidence unless it were to decide of its own initiative…to review its decision."
The order also contained the following direction: "9. The Appellant be granted permission to re-amend the Notice of Appeal in relation to the findings and reasons provided further to paragraphs 6 & 7 above. Any such re-amended Notice of Appeal must be lodged with the Employment Appeal Tribunal and served on the Respondent within 14 days of the date such findings and reasons are sent to the Appellant by the Employment Appeal Tribunal".[23]On 27 September 2007 the Employment Tribunal issued a further decision: that the claimant had not been treated less favourably by Mr Lavery pursuant to section 1(1)(a) of the Race Relations Act 1976 ; and that the claimant was not victimised pursuant to section 2(1)(a.b.c. and d.) of the Race Relations Act 1976 . It then set out its reasons.[24]On 31 October 2007, this second set of reasons was sent to the parties thereby triggering the time for the Appellant to apply for leave to re-amend his Notice of Appeal. No such application was ever received. In his skeleton argument, placed before this Tribunal dated 28 November 2007, the Appellant sought to raise what he called a "new ground" seeking to argue that the ET's decision in respect of Mr Lavery's treatment of the grievance was wrong in law and also seeking to raise substantive points in relation to the 14 June 2006 grievance. The ET's decision of 28 March 2007[25]The ET set out its findings of fact at paragraph 3 of its decision. We have, in the course of argument in this case, been taken to many of the source documents including contemporaneous notes, transcripts of recordings of meetings, contemporaneous e-mails and file notes as well as the witness statements of the various witnesses. This is a rather unusual case in that, because everything was meticulously recorded and the Appellant was very frank in accepting what had happened, even when it was contrary to his interests, there is no dispute of any significance in relation to the events to which the Appellant and the Respondent were directly involved. We have been invited to consider whether the findings of the Tribunal, where they accepted assertions of the Respondent, were contradictory or inconsistent with the documentary evidence so as to give rise to a ground of appeal. In our judgment, having been taken through the various original documents, each of the findings of fact of the Tribunal were based on sources of information, for the most part based on contemporaneous documents, or witness statements, which are consistent when looked at in the round with these documents. In the light of the circumstances of this case and the extensive nature of the contemporaneous documentation we do not think that there was any flaw in the Tribunal's fact finding. In the one instance where there was an apparent inconsistency in the contemporaneous record, the Tribunal recorded, at paragraph 3.1, that, of the three persons working in security from whom statements were taken, two of them said one thing and the third said something slightly different in relation to whether the Appellant had ever given a true explanation to them. However, at paragraph 6.3 of the decision, where they set out their conclusions, this point was adverted to and they gave their reasons for rejecting that particular contention. We are, therefore, satisfied that the Tribunal, in setting out its findings of fact at paragraph 3, satisfied the requirements upon a tribunal to deal properly with the evidence and to make proper and reasoned findings of fact.[26]The Tribunal set out its conclusions at paragraph 6 in a number of numbered sub-paragraphs. At paragraphs 6.2 to 6.5 they set out step by step a consideration of the various factors explained in British Home Store v Birchall [1978] IRLR 379 . In particular, at paragraph 6.5, they recorded that, while they might have come to a different decision in respect of sanction, they reminded themselves that they could not substitute their own view. The Respondent had satisfied them that dismissal was within the range of reasonable responses to misconduct in respect of which they had a genuine belief on reasonable grounds after a reasonable investigation.[27]At paragraph 6.6 the Tribunal considered the procedure adopted not only in respect of the procedural propriety of the dismissal, but also by way of consideration of the grievance. The Tribunal, having considered it in some detail, concluded that the procedure adopted was not in any way defective but that, even if it were wrong, the Appellant would have been dismissed in any event.[28]At paragraph 6.7 the Tribunal considered the impact of the case of Mr Haynes. This was said to support the claim of racial discrimination. We are satisfied that the matters referred to in that paragraph were based on the evidence before the Tribunal and that there were clear grounds of distinction: the Appellant had told a lie; Mr Haynes had, perhaps, been the fortunate beneficiary of slipping through the managerial net when the matter was considered initially so that when, some time later, it was considered by management, the view was taken that it was by then too late to impose any disciplinary process upon him. The Tribunal concluded that Mr Haynes was not a comparable case. At paragraph 6.8 it considered the allegation of racial discrimination. It concluded that, for all the reasons which had preceded it, the claimant had not established any facts from which the Tribunal could conclude that discrimination had occurred as there was no evidence that his dismissal was a result of discrimination. This is a conclusion which is the subject of one of the grounds of appeal. The grounds of appeal[29]The grounds of appeal are set out in paragraph 5 of the amended notice of appeal under four sub-headings and we deal with these in turn.[30]The first is as follows "the ET erred in law in its conclusion at paragraphs 6.6 that the Appellant's dismissal was fair in that it failed…" The notice of appeal then sets out five numbered paragraphs.(i) To deal with Mr Khangura's misleading report. It is said that Mr Khangura's report was misleading in that it failed to record the difference in the accounts given by the three persons from security. However, the report of Mr Khangura was a summary not a transcript. The overwhelming evidence was that the Appellant had lied to security and had not given any account consistent with which he now said was the truth. The Appellant himself did not claim to have done so and the Tribunal dealt with this point at paragraph 6.3 of its reasons.(ii) "…to analyse or deal with the inconsistencies in Ms McBride's reasons for dismissing the Appellant". The complaint focuses on the fact that, in the course of the meeting, Ms McBride repeatedly said that the point was not that he intended to steal, which he may have not, but that taking customer property off site was regarded as gross misconduct and he had admitted this. In the letter of dismissal she gave the reason as "misappropriation". The Tribunal recorded accurately and comprehensively the evidence in respect of this meeting at paragraph 3.18. It included the concluding part of the meeting in which Ms McBride stated that the Claimant had been found with the items on him, admitted to having them and that this was gross misconduct. In her evidence, based on her witness statement, it is clear that this continued to be her view. All the evidence was on the record and the Tribunal, in dealing with the matter at paragraphs 6.1 to 6.5, in our judgment dealt with the matter properly in a step by step fashion. The fact that Mr Gill, in rejecting the appeal, formed a firmer view of the conduct of the Appellant than had Ms McBride, on essentially the same material, and had characterised it in his own mind as theft rather than misappropriation was not in our judgment a matter of any significance. On that view he was even less likely to uphold the appeal and the ET, in considering the reasonableness of the Respondent's decision to dismiss focussed on the decision of Ms McBride (see paragraph 37 below).(iii) to (v) address the same point from different angles: ground iii asserts that the Tribunal failed to analyse or deal with the fact that Mr Gill failed to allow the union representative to make submissions before he adjourned to make his decision; ground iv asserts that the Tribunal failed to analyse or deal with the fact that Mr Gill did not make the decision to dismiss the appeal but it was made with Mr Woodhouse; and ground v asserts that the Tribunal failed to analyse or deal with the fact that Mr Gill failed to deal with the argument that his treatment was inconsistent with that meted out to Mr Haynes.[31]The record of the appeal meeting shows that Mr Egan only sought to intervene at a very late stage after Mr Gill had adjourned and announced that the Appellant had not provided any new basis for overturning Ms McBride's decision. However, when Mr Egan did make his submissions, Mr Gill indicated that he would consider them and respond in due course. This much was a matter of record and not in dispute. The Tribunal in its decision at paragraph 3.20 recorded accurately these events. There is no point of substance therefore in ground iii.[32]In paragraph 3.22 of the decision the Tribunal again accurately set out Mr Gill's account of how he had gone about dealing with the points raised by Mr Egan. They recorded accurately that Mr Gill had discussed the matter with Mr Woodhouse but that, as appears from Mr Gill's evidence, the decision was Mr Gill's. There is no basis for the contention that the decision was other than that of Mr Gill so there is in our judgment no merit in this ground of appeal.[33]As for point v, the evidence before the Tribunal from Mr Gill was that he had asked Mr Yeshin to investigate the case of Mr Haynes. He had received an e-mail from Mr Yeshin setting out the fruits of that investigation. Paul Deegan gave evidence which corroborated that of Mr Gill and the e-mail of Mr Yeshin. That investigation indicated that the case of Mr Haynes had no relevance to the Appellant's case and, accordingly, the letter dismissing the appeal made no reference to it. In the light of the fact that, as the Tribunal found at paragraph 3.22, no new evidence had been raised at the appeal which called into question the belief of the Respondent, on reasonable grounds, that the Appellant was guilty of misconduct there is, in our judgment, no basis for suggesting that the Tribunal erred in law in reaching the conclusion which it did. On the contrary these three grounds involve no more than going through the decision with a fine tooth comb which is an inadmissible approach.[34]The second ground of appeal asserts that the Employment Tribunal erred in law and/or was perverse in its findings at paragraph 6.7. Those findings are set out in a number of numbered sub-paragraphs.[35]The first concerns the finding that Mr Haynes had said that he had intended to return the two bottles of lotion found on him when he was stopped. We are satisfied that there was evidence to support this conclusion. Mr Deegan gave evidence and he recorded that the matter of Mr Haynes was raised with him for a second time during May 2006. At that point he decided to speak to Mr Haynes. Mr Haynes informed him that he had intended to return the bottles and had forgotten to and that he had told Security this, even though it did not accord with the brief record on the security log. Mr Deegan said in his witness statement that, as a manager, it was up to him to make a judgment call and in that particular case he felt that Mr Haynes was telling the truth. Furthermore, given that some months had passed since the incident on 1 March his judgment was that it would not be possible to go further with the investigation with any real prospect of persons having any recollection which would be useful. In our judgment there was material upon which the Tribunal could make the findings that they did. The evidence in this respect was uncontradicted.[36]The second finding is that Mr Haynes' case was brought to the Respondent's attention some months after the event itself. It is said that this is perverse because the Haynes incident occurred on 1 March 2006 and was known by Security; Mr Deegan had stated that the matter was brought to his attention some weeks after 1 March and the matter was mentioned to the Respondent by Mr Egan on 7 April 2006. Whilst this timetable is accurate, it leaves out of account the fact that the matter was finally investigated by Mr Deegan in May in the way which we have just described. Accordingly, in our judgment, the conclusions of the Tribunal at paragraph 6.7 were not only based on evidence but based on evidence which was uncontroverted.[37]The third finding is that the Respondent would not have dismissed the Appellant if he had not lied. This is a reference to an answer given by Ms McBride in evidence in response to a question asked by the Chairman of the Tribunal. It is said that this was perverse or an error of law. In our judgment there was nothing untoward in such a question being asked. One of the arguments being put forward by Mr Egan at the appeal hearing and by the Appellant before the ET was that the sanction of dismissal was disproportionate to the offence of misappropriation of a small amount of company property. The Chairman of the Tribunal was plainly anxious about this as the Tribunal, at paragraph 6.5, concluded that its members may have come to a different decision to that of the Respondent. It was entirely proper for the Tribunal to seek to investigate with the witness what it was that persuaded her that the sanction of dismissal was an appropriate one. The fact that the Appellant told lies to Security at the time the biscuits were found was an important factor. The answer which Ms McBride gave, no doubt, provided the Tribunal with a considerable insight as to what informed the decision to dismiss and, no doubt, fed into their conclusion that the decision to dismiss was within the range of reasonable responses. In our judgment there was nothing either erroneous in law or perverse in the Tribunal having posed this question.[38]Ground 3 is to the effect that the Tribunal erred in law and/or reached a perverse conclusion in paragraph 6.8 of its judgment. In that paragraph the Tribunal concluded that the Appellant had not established any facts from which it could conclude discrimination had occurred. In our judgment that was a conclusion which it was open to the Tribunal to make. The case of Mr Haynes had been gone into in the course of the evidence before the Tribunal in some detail. The reasons for him not having been dealt with initially had been fully explained. Mr Deegan had given his account of why it was that subsequently he did not see fit to take any action against him having investigated the matter at that stage. His description of what had happened was consistent with the indication of Mr Yeshin in his e-mail of 7 April that they might want to follow up the case of Mr Haynes. The persons involved in taking the decisions concerning Mr Haynes were different from the persons involved in taking the decision in relation to the Appellant. In our judgment the Tribunal was entitled to conclude that there was nothing in the case of Mr Haynes which gave rise to an inference that racial discrimination had occurred so as to shift the burden of proof. In any event, even if that had been the case, the Tribunal concluded at the end of paragraph 6.8 that there was no evidence to provide any shred of support for the conclusion that the Appellant's dismissal may have been the result of racial discrimination.[39]A hypothetical comparator. A subsidiary ground relied upon is the contention that the Tribunal failed to deal with the Appellant's hypothetical comparator case. In our judgment the Tribunal was not obliged to do so. In dealing with the issue of the real comparator the Tribunal came to the view that, looking at the evidence as a whole, there was no evidence to support any conclusion that the Respondent had racially discriminated against the Appellant. The differences between the case of Mr Haynes and that of the Appellant were differences which made it plain why it was that the Respondent, without any racial discrimination, had dismissed the Appellant but not Mr Haynes. The Appellant was a supervisor in whom the requirement of trust was greater, he had lied to security when initially confronted with his having possession of company property and had failed until some time later to give a different, potentially truthful, explanation for how he came to be in possession of these goods. There was no sensible basis upon which inventing a hypothetical comparator with those characteristics which differentiated the Appellant from Mr Haynes would have been a useful exercise as the Appellant fell at the first hurdle. In our judgment there was no error of law, nor any perversity, in the conclusion that the Appellant was not racially discriminated against by being dismissed.[40]Ground 4 of the amended Notice of Appeal is an assertion that the Tribunal failed to deal with the Appellant's submissions that Mr Lavery's failure to deal with his grievance properly, or at all, amounted to race discrimination and that his dismissal of the grievance amounted to race discrimination.[41]The Tribunal had failed in its original decision to come to any conclusions in respect of Mr Lavery in dealing with the first grievance. In its second decision the Tribunal dealt with it. It recorded that in the first ET1 of 21 June the complaint had been made that the Claimant had been dismissed in circumstances when a white employee would not have been dismissed, that Mr Lavery failed to investigate the grievance properly, or at all, and that had the Claimant been white his grievance would have been properly investigated. It also asserted that Mr Lavery's conclusion in dismissing the grievance was based on inaccurate information and that, if the Claimant had been white, Mr Lavery would not have reached the conclusion that he did.[42]The evidence before the Tribunal was the letter of 24 May dismissing the grievance as well as an e-mail from Mr Lavery to a colleague dated 8 May. The Appellant did not seek to argue that the letter of 24 May failed adequately to deal with the grievance insofar as it was based on alleged procedural defects. Accordingly we do not consider this aspect of the appeal further.[43]The real point of this ground of appeal is that it is said that in the letter of 24 May Mr Lavery failed adequately to deal with the complaint that "the decision to dismiss was not consistent with previous outcome in relation to similar issues of conduct." In this connection, the letter dismissing the grievance had said as follows:
"The Gate Gourmet disciplinary policy clearly states that theft is regarded as gross misconduct, the penalty for which is dismissal and each case is judged on its own merits, based on the outcome of investigations. I find that the above bears no relevance to your particular case."
The Tribunal, in its second decision at paragraph 6.2, said as follows:
"Counsel also stated in his submissions with regard to the grievance held by Mr Lavery that Mr Lavery failed to deal with the Claimant's grievance vis-a-vis Mr Haines [Mr Haynes]. That is correct but the reason was that the Claimant did not mention Mr Haines in his grievance of 21 April. When the Chairman raised that with counsel he stated that "
That is beside the point." However, it is not beside the point but very much on the point. Mr Lavery could not deal with the case of Mr Haines because the Claimant had not raised the case of Mr Haines in his first grievance. He did, however, deal with the alleged inconsistency of treatment by saying that each case is dealt with on its merits after an investigation." The Appellant says that the letter of 24 May was disingenuous. It was obvious that the Appellant was referring to Mr Hayne's case in his grievance letter and that, by failing to mention Mr Haynes, the Respondent was simply side stepping the grievance.[44]In our judgment the Tribunal was entitled to deal with the grievance in the way that it did. It is important to remember that the grievance was not and could not be a second appeal against the decision to dismiss. The decision not to uphold the appeal against dismissal was one in which the question of Mr Haynes had been referred directly to Mr Gill. Upon his investigation of that matter he had concluded, as he was entitled to, that the case of Mr Haynes did not affect his judgment at all. The grievance raised the question of consistency of approach in general terms. The conclusion of Mr Lavery was that the Appellant's case had been dealt with on an individual basis on its own facts and that this was in accordance with company policy to deal with each matter on its merits. There was no basis upon which, in the circumstances, Mr Lavery could have come to any different conclusion than to reject the grievance. Accordingly, in our judgment, the Tribunal did not err in concluding that Mr Lavery had dealt properly with the grievance on that particular point. Accordingly, in our judgment, there is nothing in this point of appeal.[45]The third ground of appeal under this heading was an assertion that the Respondent failed to deal at all with the grievance of 14 June 2006 and that this amounted to race discrimination. As it turned out this was a misconceived ground as the Respondent had dealt with the 14 June grievance before the second ET1 was lodged. This ground of appeal has not been pursued.[46]The fifth ground , which is a new ground, is that "the ET erred in law in that it failed to deal with the Appellant's victimisation complaints properly or at all having identified them as issues at paragraph 1.1 of its judgment."[47]This too was a point upon which HHJ McMullen QC asked the Tribunal to set out its reasons as there was no evidence of it having considered the matter in its first decision. The Tribunal did so at paragraph 6.6 and 6.7 of its second decision. The complaint of victimisation in respect of the grievance of 14 June set out in the second ET1 was that the Respondent had failed to deal with the claimant's grievance dated 14 June 2006. This allegation was subsequently altered to a complaint that he had been victimised as a result of the failure to deal "promptly" with that grievance. Accordingly, the Tribunal, in paragraph 6.7 of its second decision, dealt with the question of the delay between 14 June and 29 August when the grievance was dealt with by Mrs Woodison. She had given evidence in respect of why there had been an initial delay in investigating this grievance and then of the way in which she had investigated it, in particular in respect of Mr Haynes by, amongst other things, interviewing Mr Deegan. The Tribunal was of the view that there was no intention by the Respondent to fail to deal with the claimant's second grievance, or deliberately to delay it being dealt with. There had been delays which were explained, but when it had been dealt with by Mrs Woodison it had been dealt with thoroughly.[48]In the skeleton argument dated 28 November, the Appellant sought to raise a new ground - a complaint that the Tribunal had failed to analyse the various different accounts given by the Respondent's witnesses in relation to the Haynes case and in dealing with the delay had failed to draw any inference from the difference between the Respondent's pleaded case. The Respondent's pleaded case, in respect of the victimisation, amounted to no more than that the grievance had been dealt with by 29 August - before the second ET proceedings were commenced. It did not purport to go into any detail why there had been a delay. That was a matter of evidence called at the Tribunal hearing. In our judgment, given the uncontradicted evidence of Mrs Woodison stating why it was that the second grievance was not dealt with until 29 August the Tribunal was entitled to conclude that there was no intention on the part of the Respondent not to deal with the second grievance or to deliberately delay dealing with it. The grievance was dealt with before the second ET proceedings were commenced and so was not dealt with in response to proceedings so as to give rise to any question of an inference. It follows, in our judgment, that there is nothing in the last ground of appeal set out in the amended notice of appeal.[49]As for the purported new ground first referred to in the skeleton argument dated 28 November, we uphold the objection of the Respondent that this was not submitted in time, having regard to the directions made by HHJ McMullen QC. We have, therefore, not considered it.[50]For the reasons set out above we dismiss the appeal of the Appellant in respect of the various aspects of the different decisions of the Employment Tribunal.