ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE REID QC
Case No: UKEATPA/1565/09/RN
Strand, London, WC2A 2LL
B e f o r e :
| PARAG I. DESAI
|- and -
|NATIONAL CAR PARKS SERVICES (NCP)
The Respondent was not represented
Hearing date: 19 January 2011
Crown Copyright ©
Lord Justice Rimer :
The facts found by and decision of the employment tribunal
'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.'
'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. …'
Mr Desai's appeal to the Employment Appeal Tribunal; and the present application
'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.'
'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.
'… 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.
'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.'
'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.'
'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.'
'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".'
'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.'
'… 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.'
'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.