England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE REID QC)
Potential Appeal No: UKEATPA/0039/08/MA

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th July 2008

Lord Justice Rimer:

1. This is a renewed application for permission to appeal. The applicant is Mr Franck  Djedje. He brought an unfair dismissal claim in the Reading employment  tribunal against his former employer, ICTS (UK) Limited. The hearing was on 22 October 2007. On 2 January 2008 the Tribunal, chaired by Mr BJ Clarke, promulgated its reasons for dismissing the claim.
2. Mr Djedje presented an appeal to the Employment Appeal Tribunal. On 21 February 2008 the Deputy Registrar notified him that His Honour Judge Burke QC had concluded that his grounds of appeal disclosed no arguable error of law by the employment tribunal and that therefore any appeal had no reasonable prospect of success. Mr Djedje was told that, in accordance with Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (as amended), no further action would be taken on the appeal. Appeals to the Employment Appeal Tribunal against the decisions of employment tribunals of course lie only on questions of law, not on questions of fact.
3. Mr Djedje exercised his right to file amended grounds of appeal. They were considered by Underhill J. He also concluded that none of the grounds disclosed any arguable error of law by the employment tribunal. On 14 March 2008 the Deputy Registrar notified Mr Djedje of that, and again that no further action would be taken in relation to the appeal.
4. Mr Djedje then exercised his right under Rule 3(10) to have an oral hearing on the validity of his grounds of appeal. That took place before His Honour Judge Reid QC on 25 April 2008. Judge Reid agreed with Underhill J that Mr Djedje had not identified any arguable error of law by the employment tribunal and he directed that the appeal should go no further. He refused permission to appeal to the Court of Appeal. So did Sir John Chadwick on the papers on 19  June  2008. Mr Djedje now renews his application before me, asserting amongst other things that Judge Reid got his case completely wrong.
5. In these circumstances, the question before me is the narrow one of whether Mr Djedje has a real prospect of showing on an appeal to this court that Judge Reid was wrong to conclude that none of the amended grounds of Mr Djedje's appeal to the Employment Appeal Tribunal disclosed an arguable error of law such as to give him a real prospect of success on appeal. If he could succeed in showing that, the case would have to be remitted to the Employment Appeal Tribunal, with a direction to hear the appeal on such grounds as were held by this court to cross the relevant threshold.
6. The background to this case is as follows, which I take basically from the findings of the employment tribunal, as supplemented by the documents in the bundle before the court, all of which I have read. Mr Djedje was employed by ICTS. ICTS performs security duties at Heathrow airport for airline clients, its duties including the guarding of aircraft between flights, checking documentation and searching passengers and their hand baggage. Not surprisingly, ICTS has a "zero tolerance" approach to security breaches by staff. There was evidence, for example, before the employment tribunal of an ICTS employee being dismissed for stealing a single boiled sweet from an aircraft. Clause 27.4 of Mr Djedje's contract of employment confirmed that ICTS could dismiss him summarily for gross misconduct, the accompanying handbook explaining that such misconduct could warrant summary dismissal for a first offence. Gross misconduct was defined as including "theft of money or property, whether belonging to [ICTS], another employer or a third party." Mr Djedje had attended training courses, making clear that items belonging to the client airlines or its passengers were not to be removed from aircraft.
7. The incident leading ultimately to Mr Djedje's dismissal was a report dated 22 April 2007 from Mr Haq, his duty supervisor and line manager, that he had that day seen Mr Djedje remove an ice cream from an American Airlines aircraft and give it to a Ms Chryzanowska, a colleague. The ice cream was a catering product given to the airline's passengers and was the property of the airline. Mr Haq reported that when challenged about the matter, Mr Djedje refused to answer his question and said "you want to sack me". The employment tribunal gave reasons why such a response was in character and found that Mr Djedje did respond in this way.
8. Mr Haq's report was given to his own supervisor. ICTS told American Airlines of the alleged incident, who insisted that if ICTS's internal investigation into it showed the allegations to be true, they did not want the agents involved to work on their aircraft. Mr Djedje was suspended on full pay pending an investigation by Mr Bernasconi, the ICTS contracts manager for three airline clients.
9. Mr Bernasconi promptly conducted several meetings. He obtained a statement from Mr Mohan, a security agent who had been working with Mr Djedje at the time on the same aircraft. Mr Mohan was employed in the same capacity as Mr Djedje but was junior to him in terms of service. Mr Mohan said that Mr Djedje had offered him some ice cream he had taken from the first-class galley and that, when he had said no, had taken it down and given it to Ms Chryzanowska, who was sitting in a minibus. Mr Bernasconi interviewed Ms Chryzanowska, who confirmed that Mr Djedje had given her a glass of ice cream, but she denied that she ate it and said she took it back. It does not appear that Ms Chryzanowska made a formal written statement but the bundle includes minutes of the interview with her.
10. Mr Bernasconi also held an investigatory meeting with Mr Djedje on 23 April. According to the minutes, Mr Djedje failed to answer the allegations and became abusive and aggressive, such that the Deputy Station Manager "had to come out into the corridor and tell him to calm down." On 25 April Mr Bernasconi wrote to him confirming his suspension so as to allow an investigation to take place following allegations that he had removed items from the American Airlines plane and had failed to comply with company and client procedures. On 27 April Mr Bernasconi reconvened his investigatory meeting with Mr Djedje, the initial meeting having got nowhere. Mr Djedje handed Mr Bernasconi a pre-prepared letter dated 27 April, which showed that he understood the allegations against him. In that letter he admitted removing the ice cream, saying that Mr Mohan had given it to him to hand to Mr Haq. He said he found himself in a position where he could not refuse and suggested that the entire matter was a plot designed to have him disciplined and sacked. He said that Mr Mohan was used to taking items from the plane for everyone to use in the ICTS resting room and it had not been a problem before.
11. The minutes of that meeting show Mr Djedje to have been more co-operative than before. He admitted that he had removed the ice cream. He repeated that it was Mr Mohan who had asked him to remove it and to put it in the van, and he also admitted that he had removed tea and sugar from the aircraft on previous occasions. To the question why he accepted the ice cream from Mr Mohan, he said he did so out of respect for him. To the question whether he regarded it as theft he said, "No, it is American Airlines property and I work for them." When reminded that he had admitted removing the ice cream he said, "What I say is what I say." It is relevant to note that Mr Djedje has at no time suggested that Ms Chryzanowska was a witness to the circumstances in which he came to remove the ice cream from the aircraft. It is not in dispute that at the time she was sitting in a van or minibus beside the aircraft. One of the points he again made in that interview was that ICTS was plotting against him.
12. By a letter of 18 May Mr Juchtmann, ICTS's Heathrow Station Manager, invited Mr Djedje to a disciplinary hearing on 22 May in relation to the incident. He informed Mr Djedje that the matters of concern were:

"Allegations of theft, namely your removal of a dish of ice cream on an American Airlines flight 142 on 22^nd April 2007 without permission. The company alleges that these allegations, if proven, place ICTS in breach of client and contract procedures and represent a gross breach of trust."

Mr Djedje's written response on 19 May was that he wanted "to appeal [ICTS] pre-decision to discipline me because there is no ground for a disciplinary hearing." He said he had explained in his letter of 27 April that he had not removed or taken any items from the plane. He wrote: "I have been given a glass of ice cream to put in ICTS van by Mohan for ICTS supervisor Haq. Mohan sent me. I already gave the reasons why I have not refused when Mohan sent me." His further explanation why that was apparently all right was because, so he asserted, Mr Mohan's removal of items from planes for use in ICTS's resting room was part of ICTS's practice. On 20 May Mr Djedje wrote further to Mr Juchtmann saying he had sent him all the investigation documents apart from Ms Chryzanowska's report and he said that without it "as far as I am concerned, your investigation will be invalid."

13. The disciplinary hearing took place on 22 May, chaired by Mr Juchtmann. Minutes were taken of the hearing. Mr Djedje was unco-operative and said he was appealing the decision taken at the meeting, although in fact none had yet been taken. He said he rejected the disciplinary hearing as illegal. He now denied removing anything from the aircraft. When told he had previously admitted doing so, he challenged ICTS to prove it. His final minuted statement was to deny that he had taken anything from the aircraft.
14. Mr Juchtmann made a decision that Mr Djedje should be dismissed, and by a letter of 5 June he so informed Mr Djedje. Mr Djedje was offered a right of appeal. He responded by confirming his intention to do so. He said it was a plot under which he was the target and Ms Chryzanowska a victim. He said he was not leaving ICTS, he was not sacked and if he did not get his salary he would come and get it.
15. The appeal hearing was held on 4 July by Mr Hunter, ICTS's Legal and Compliance Manager. Mr Djedje had earlier written to him on 11 June asking for a copy of Ms Chryzanowska's statement. The day before the hearing Mr Djedje wrote again. The letter is not easy to follow but it included the point that, although he had received everybody else's statements, he had still not received Ms Chrzanowska's, which he said made the investigation incomplete. He also said he wanted to know what "investigation result ICTS gave to American Airlines Security Anthony Visram?"
16. Mr Hunter conducted the appeal as a rehearing. Mr Djedje handed in another pre-prepared letter. He was dissatisfied that he had not been given a copy of Ms Chryzanowska's statement. He mentioned for the first time an apparent argument between Mr Mohan and Ms Chryzanowska. Mr Hunter offered him an adjournment in order for him to arrange to be accompanied at the appeal hearing, which he rejected. Mr Hunter asked Mr Djedje for his story. The employment tribunal found that, for the first time in the various meetings, Mr Djedje was co-operative and relatively polite. He answered the questions put to him. For the first time, he accused Mr Mohan of eating one ice cream and giving him the other. He said he was sufficiently concerned about Mr Mohan's instruction to him to conceal the ice cream he was holding because he did not want the inspector to see it. He quickly put it in the minivan next to Ms Chryzanowska. The employment tribunal found the fact that he hid the ice cream to amount to a recognition by Mr Djedje of his own wrongdoing. His defence at the appeal hearing appeared to include the assertion that it was common practice for ICTS staff to take things from planes and so it was all right for him to have done so.
17. Following the hearing Mr Djedje wrote a letter dated 5 July to Mr Hunter expressing contrition. He wrote:

"I should have refused when Mohan sent me. I made a mistake. Accepting when Mohan sent me is not theft, it is a mistake I made. I even do not know what has happened to the glass of ice cream. Gross misconduct for that mistake is far too much. Please give me a warning, another chance."

On 8 July Mr Djedje wrote further to Mr Hunter, saying that the hearing on 4 July had not been a complete re-hearing because he still had not seen Ms Chryzanowska's statement. He said he was expecting a complete re-hearing and a re-appraisal of all matters after her statement had been provided to him. By a further letter of 10 July he made a similar complaint about not having received that statement.

18. Mr Hunter asked Ms Young to carry out further inquiries, in particular to check Mr Djedje's version with Mr Mohan. As a result of these inquiries Mr Hunter was satisfied that the version of events collated from the evidence of Mr Haq, Mr Mohan and Ms Chryzanowska was to be preferred to Mr Djedje's account that he had merely acted on Mr Mohan's instruction to put aside some ice cream for Mr Haq. On 12 July Mr Hunter wrote to Mr Djedje dismissing his appeal. I record that Mr Djedje acknowledges that he did receive Ms Chryzanowska's statement on 12 September 2007. He was there referring to the minutes of the interview with her on 23 April because no formal statement was taken from her. That was over a month before the hearing before the employment tribunal.
19. The employment tribunal found that ICTS had correctly followed the three-step statutory dismissal procedure set out in Schedule 2 to the Employment Act 2002. They found that ICTS had a potentially fair reason for dismissing Mr Djedje's, namely suspected theft. They found that ICTS had a genuine belief that he had removed the ice cream improperly in a manner constituting theft. They found as a fact that this incident was not, as he had asserted, part of a plot against him motivated by previous grievances and a previous employment tribunal claim. They found that ICTS's genuine belief of theft…(interruption by Mr Djedje). I am going to deliver this judgement at 2:00. I am not going to tolerate any more of these interruptions.
******************
20. This is the continuation of a judgment that I commenced this morning at approximately 12.10. I was forced to interrupt its delivery because, during the course of the giving of the judgment, Mr Djedje interrupted me so regularly and so forcefully that there came a point when it was impossible to continue its delivery. I accordingly informed Mr Djedje that I would give the judgment this afternoon at 2.00, as I am now doing, and I am now concluding the judgment. I cannot remember precisely where I got to but I think I had reached the point where I had explained that the employment tribunal found that ICTS had correctly followed the three-step statutory dismissal procedure set out in Schedule 2 to the Employment Act 2002. They found that ICTS had a potentially fair reason for dismissing Mr Djedje, namely suspected theft. They found that ICTS had a genuine belief that he had removed the ice cream improperly in a manner constituting theft. They found as a fact that this incident was not, as he had asserted, part of a plot against him motivated by previous grievances and a previous employment tribunal claim. They found that ICTS's genuine belief of theft was based on reasonable grounds and they explained them in paragraph 49 of their decision. They found that ICTS's belief was also reached after a reasonable investigation carried out by Mr Bernasconi, who spoke to Mr Haq, Mr Mohan and Ms Chryzanowska. The Tribunal dealt in terms in paragraph 50 with the point that the notes of the interview with Ms Chryzanowska had not been shown to Mr Djedje. They said they did not consider that omission to have been material, saying further that:

"[Mr Djedje] had already admitted removing the ice cream and Ms Chryzanowska was in no position to cast light on the central issue that [ICTS] had to determine, namely whether [Mr Djedje] stole the ice cream or removed it on another's instruction. [ICTS] gave Mr Djedje as much information as was reasonable and appropriate in the circumstances."

21. The Tribunal was critical of the omission of ICTS to take notes of Ms Young's further conversation with Mr Haq and Mr Mohan after the appeal hearing but they held that this did not take ICTS's investigation outside the range of reasonable approaches. They referred in that connection to the decision of the Employment Appeal Tribunal in Sainsbury's Supermarkets Ltd v Hitt [2001] UKEAT 887 00 2012. They pointed out that they accepted that those further conversations took place and that they were intended merely to seek confirmation that Mr Haq and Mr Mohan stood by the positions that they had earlier stated.
22. The Tribunal found that ICTS's decision to dismiss was reasonable in the circumstances and well within the range of responses available to a reasonable employer. They explained that in paragraphs 52 and 53. They accordingly dismissed Mr Djedje's claim.
23. In his fresh grounds of appeal, those considered by Underhill J, Mr Djedje raised nine points. First, that ICTS had "not been a reasonable employer in its theft allegation." There is in my view nothing in that general assertion. If it means anything, it identifies no error of law by the employment tribunal.
24. Second, that ICTS had not adhered to the components of a fair investigation. Mr Djedje pointed to the omission to obtain a signed statement from Ms Chryzanowska, nor had she even signed the interview notes. Those notes had not been taken into account at the hearings. Mr Djedje also asserted that the copies of the Mohan and the Haq statements that he was given differed from those given to American Airlines.
25. As to those points, the employment tribunal dealt at paragraph 50 of their reasons with why the omission to obtain a statement from Ms Chryzanowska did not impair the fairness of the disciplinary process. She was interviewed and notes were taken of the interview. They also found that the omission to produce them to Mr Djedje did not impair the fairness of the procedure. That was because they did not go to the central factual issue that had emerged, namely whether Mr Djedje stole the ice cream on his own initiative or removed it from the plane on the instruction of Mr Mohan. That was an issue upon which Ms Chryzanowska could make no contribution as she was not a witness to the circumstances in which the ice cream was removed from the aircraft or to the alleged exchanges between Mr Djedje and Mr Mohan. Those were findings that the Tribunal were, in my judgment, fully entitled to make. The omission to produce to Mr Djedje the notes of the Chryzanowska interview did not begin to affect the fairness of the investigative or disciplinary process. There was no error of law by the employment tribunal in this respect.
26. As to the complaint that Mr Djedje had not been given the allegedly different statements that Messrs Haq and Mohan had provided to American Airlines, it is not apparent that Mr Djedje raised this point at either the disciplinary hearing or at his appeal, or with the employment tribunal, although he says in his skeleton argument in support of the present application that he did raise it with the employment tribunal. Assuming that he did, I do not understand how it is supposed to assist his present application. He is not in a position to say that anything materially different was in fact said in any statements provided to American Airlines and it is improbable that it was. If he wanted to try and make good any suspicion he had on this point, he could have sought production of the statements of the hearing before the Tribunal. It does not appear that he did so. There is no basis on which this court can assume that there is anything of substance in this point.
27. Mr Djedje's third ground of appeal is "not adhering to the components of a fair investigation was deliberate". That is a serious and unsupported slur on ICTS and is in any event not an argument open to Mr Djedje because the Tribunal found, on the facts, that ICTS's investigation was a reasonable one.
28. Fourth, Mr Djedje makes a complaint that ICTS had in some unspecified manner not followed its own rules in relation to disciplinary matters. It seems to be in the nature of a complaint that it was Mr Hunter who made the decision to dismiss the appeal. Who else might have done so is unclear to me.
29. Fifth and sixth, Mr Djedje reopened the same point about the unfairness of not being given the notes of the interview with Ms Chryzanowska and the copy statements made by Messrs Haq and Mohan that were provided to American Airlines. He said he needed these to prove that Mr Mohan had lied. There is nothing in that. Ms Chryzanowska, as I have said, was unable to contribute to that debate.
30. Seventh to ninth, Mr Djedje levelled general criticisms at the employment tribunal in arriving at their decision without weighing up all the evidence that was before ICTS at the time, including a decision that ICTS had followed "the core principles of reasonable behaviour". It is obscure to me what point Mr Djedje is making here if it is more than a repetition of the previous points. If, as Underhill J appears to have thought, Mr Djedje is here criticising the Tribunal for finding him guilty of theft without first considering all the material that ICTS had, then, as Underhill J pointed out, Mr Djedje is mistaken as to the function of the Tribunal. The function of the Tribunal was, in short, to find whether ICTS had acted reasonably, not to find what had actually happened. The Tribunal did consider whether ICTS had acted reasonably and it found that it had.
31. In common with the four judges who have considered Mr Djedje's proposed appeal to the Employment Appeal Tribunal, I too am of the opinion that his challenge to the decision of the employment tribunal raises no arguable points of law that have any reasonable prospect of success. I am myself by no means convinced whether it matters whether the removal of the ice cream was all Mr Djedje's own idea or whether he was simply knowingly accepting stolen ice cream from Mr Mohan and secreting it off the plane so that his dishonesty would not be spotted. Either way his conduct was dishonest and could be said to deserve summary dismissal. Why Mr Djedje considers that his case of compliance with the orders of Mr Mohan, who was in no position to give him instructions to do anything, provided him with an answer to the particular allegation against him is unclear to me. In fact, however, the Tribunal came to the conclusion that ICTS genuinely believed, on reasonable grounds, and after a reasonable investigation, that the theft of the ice cream originated with Mr Djedje and the Tribunal's route to that conclusion involved no error of law. Mr Djedje's challenge to the fairness of his dismissal is groundless. I refuse his application, which I regard as without merit.

Order: Application refused