Desai v National Car Parks Services (NCP)

An employment tribunal need not conduct an inquisitorial investigation into vague allegations. A claimant must identify the complaint with sufficient particularity to enable it to be investigated and adjudicated, and must prove the facts relied upon. An appeal to the Employment Appeal Tribunal is confined to errors of law. Disagreement with factual findings, or an attempt to recast the pleaded case at appellate stage, does not ordinarily establish an arguable error of law. Permission may also be refused where any successful appeal could lead only to a rehearing of an issue already rejected on an independent basis.

Mr Desai brought employment tribunal claims against NCP arising from workplace complaints, including race discrimination, racial harassment, victimisation following alleged protected disclosures and constructive dismissal. The employment tribunal rejected all claims except a claim for £70.38 in unpaid wages.

The Employment Appeal Tribunal refused permission to appeal on the paper sift and later, after an oral hearing, refused permission on seven grounds in its order dated 9 June 2010, identified as UKEATPA/1565/09/RN. Sir Richard Buxton refused permission to appeal to the Court of Appeal on the papers. The issue before Rimer LJ was whether any proposed ground disclosed an arguable error of law.

The renewed application for permission to appeal was refused on all seven grounds.

1. Scope of appellate review. Appeals to the Employment Appeal Tribunal are confined to alleged errors of law. Permission should be refused where the proposed ground merely challenges factual findings, seeks to reopen a concession or abandonment recorded in the tribunal’s judgment, or advances a case not properly pleaded below.
2. Protected disclosure claim. The alleged disclosure concerning Mr Johnson did not cause any relevant detriment. The unpaid wages resulted from an unrelated administrative error and could not support the whistleblowing claim. There was no arguable basis for inferring a causal connection.
3. Abandoned discrimination allegation. The employment tribunal had clearly recorded that the race discrimination claim concerning the spitting incident was abandoned. It was too late to seek an inquiry into whether the tribunal had misunderstood Mr Desai’s position.
4. Specificity of complaints. A tribunal is not required to investigate a claimant’s complaints inquisitorially. The claimant must formulate a complaint with sufficient specificity and prove the facts relied upon. The tribunal was entitled to dispose summarily of allegations that were too imprecise to investigate, and the Employment Appeal Tribunal was entitled to reject the challenge.
5. Recasting the pleaded case. Complaints concerning the December 2007 and April 2008 incidents were unclear or concerned the handling of grievances. They were later recast as claims of race discrimination, victimisation or harassment. The tribunal had to decide the case actually advanced before it and was not shown to have failed in law to address it.
6. Josephine allegation. Although errors appeared in the tribunal’s judgment concerning the date, name and pleading of the alleged remark, the Employment Appeal Tribunal was entitled to conclude that the finding was not arguably perverse, having regard to the vagueness of the allegation and the limited emphasis placed upon it. Any remission would have served no purpose because the pleaded complaint about grievance handling had independently failed for lack of evidence.
7. Constructive dismissal. The tribunal rejected on the facts the allegation that NCP had failed properly to investigate grievances or had damaged the relationship of trust and confidence. There was no arguable error of law in its approach.

The procedural route for amended grounds and an oral hearing was described under rules 3(8) and 3(10) of the Employment Appeal Tribunal Rules 1993.

• Court of Appeal (Civil Division): Rimer LJ refused the renewed application for permission to appeal on 14 April 2011.
• Employment Appeal Tribunal: His Honour Judge Reid QC refused permission to appeal on 9 June 2010 in UKEATPA/1565/09/RN.
• Employment tribunal: Following a hearing on 13 July 2009, judgment was sent on 23 July 2009 and written reasons followed on 16 October 2009. All claims failed except the unpaid-wages claim, for which £70.38 was awarded.