Ali v First Quench Ltd

An appeal from the Employment Appeal Tribunal is a second-tier appeal. The Court of Appeal is concerned principally with whether the employment tribunal reached the correct decision, rather than whether the Employment Appeal Tribunal was correct.

The Human Rights Act 1998 was not retrospective in the material respects. A private employer’s limited covert surveillance of its premises, undertaken to investigate suspected theft, did not give rise to an arguable Article 8 error on these facts. An admitted act of serious misconduct could properly support summary dismissal. Findings of fact could not be reopened absent perversity or a lack of evidential basis.

Mohammed Ben Ali sought permission to appeal out of time from the Employment Appeal Tribunal’s dismissal of his appeal against an Employment Tribunal decision. The tribunal had dismissed his complaints of unfair dismissal and racial discrimination under section 1(1)(a) of the Race Relations Act 1976.

He had been summarily dismissed after covert workplace surveillance recorded him engaging in sexual intercourse in an office while the shop remained open. The tribunal found that this was the reason for dismissal and rejected allegations of racial motivation. The principal issue before the Court of Appeal was whether the covert surveillance and the tribunal’s treatment of it raised an arguable issue under Article 8 of the Convention, and whether the tribunal’s factual findings could be revisited.

1. Permission refused. The delay in applying for permission was short and was not held against the applicant, but the proposed appeal had no real prospect of success and no other compelling reason justified hearing it.

2. The appeal was a second-tier appeal. Applying the approach stated in Hennessy v Craigmyle & Co Ltd [1985] ICR 879, the Court of Appeal was concerned with whether the Employment Tribunal reached the right decision, rather than simply whether the Employment Appeal Tribunal was right.

3. The reliance on Article 8 disclosed no arguable error of law. The Human Rights Act 1998 was not retrospective in any material respect, as confirmed by section 22(4). The dismissal decision and the tribunal’s decision pre-dated the Act’s commencement, and the employer was not a public authority.

4. The Article 8 reasoning in Halford v United Kingdom [1997] IRLR 471 was distinguishable. That case concerned interception by a public authority of private telephone communications in circumstances supporting a reasonable expectation of privacy. The present case concerned limited covert surveillance of workplace premises to investigate suspected theft. It was far from clear that Article 8 was breached, and the admitted misconduct remained a sufficient reason for dismissal.

5. The comparison with R v Secretary of State for the Home Department, ex parte Mahmood 8 December 2000 did not assist the applicant. That case concerned judicial review of a public authority decision in an immigration context and did not establish a basis for reopening this private employment dispute.

6. The tribunal alone was responsible for finding the facts. The applicant had shown neither an absence of material capable of supporting those findings nor perversity in the conclusions that the reason for dismissal was the misconduct, rather than racial hostility.

• Court of Appeal (Civil Division): Permission to appeal from the Employment Appeal Tribunal was refused. The application was dismissed.
• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s determination was dismissed on 20 November 2000.
• Employment Tribunal: The complaints of unfair dismissal and racial discrimination were dismissed; the determination was promulgated on 3 May 2000.