A1/2001/0113

Neutral Citation Number: [2001] EWCA Civ 446
IN THE SUPREME COURT OF JUDICATURE                               
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

								Royal Courts of Justice
								Strand
								London WC2A 2LL

								Thursday 22 March 2001

B e f o r e:

LORD JUSTICE PETER GIBSON

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MOHAMMED BEN ALI
Claimant/Applicant

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FIRST QUENCH LIMITED
Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR J HYAM appeared on behalf of the applicant acting bro bono.

The Respondent did not attend and was not represented.
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J U D G M E N T
1.	LORD JUSTICE PETER GIBSON: The applicant, Mohammed Ben Ali, seeks permission to appeal out of time from the order made by the Employment Appeal Tribunal on 20 November 2000, whereby his appeal from the determination of an Employment Tribunal in Ashford was dismissed. By that determination, which was promulgated on 3 May 2000, the tribunal dismissed the application of the applicant that he had been unfairly dismissed by his employer, First Quench Limited (“the company”), and that the company had discriminated against him on racial grounds contrary to section 1(1)(a) of the Race Relations Act 1976. 
2.	The appellant's notice was received on 5 January 2001. The EAT had directed that any application for permission to appeal should be made to this court within 14 days of the date of its judgment being sent to the parties. This was on 18 December 2000. Thus the delay is very short and the 14 days included the holiday period. I would not, therefore, hold the delay against the applicant. 
3.	The background facts relating to the application can be stated shortly. The applicant was employed by the company, which is a subsidiary of Whitbread Plc, as a delivery driver from 5 February 1997 until he was dismissed on 15 February 1999. The company runs a large number of off-licence outlets. In addition he gave part‑time assistance at a number of the company's off-licence shops. 
4.	In late 1997 the applicant was working at a Threshers' branch, the Green Street Green off-licence. In about November 1997 the manager started to be aware that the stock count, particularly of cigarettes, was short and money was going missing. With the agreement of Mr Taylor, the area manager, and the security department, a covert video camera was installed in December 1998 in the office at the back of the branch to film the area where cigarettes were stored under the office desk. Mr Taylor regarded the applicant as the prime suspect. 
5.	On 8 January 1999 Ms O'Brien, who was the manager, viewed the video. She saw the applicant having sexual intercourse with Andrea Such, the manager of another branch, on the office desk while the shop was open and that the applicant interrupted those activities to go into the shop and serve customers from time to time. The applicant was suspended on 15 January 1999. 
6.	On 1 February the applicant wrote a statement which he sent the next day to the managing director and a number of area managers in which he alleged mistreatment and racial discrimination. On 15 February 1999 a disciplinary hearing was held by the branch development manager. The applicant accepted that in engaging in sexual intercourse in the office he was in the wrong and he knew that it was a breach of the company's disciplinary code. He was unaware that a camera was there. The applicant was summarily dismissed for gross misconduct. In the letter of dismissal dated 16 February he was told that the misconduct was “severe indecent behaviour which has caused offence to other employees”. The last seven words referred to the reaction of Ms O'Brien who viewed the video. Ms Such had earlier been dismissed at another disciplinary hearing before another manager for the same reason. 
7.	The applicant appealed. The appeal was heard by the operations manager who told the applicant that the allegations made by him in his statement of 1 February were the subject of a separate investigation and that the appeal hearing was to discuss his dismissal only. The dismissal was upheld. 
8.	The human resources manager, Ms Aplin-Smith, investigated the statements in the applicant's statement. She informed him of the result of her investigations on 2 April 1999, dismissing the complaint. She said that none of the issues which had been raised had lead to his dismissal which, she repeated was for gross conduct due to an act of severe indecent behaviour likely to offend other employees. 
9.	On 25 February the applicant applied to the tribunal. The company resisted the application. There was a lengthy hearing before the tribunal, both sides being represented by counsel and the evidence being heard over four days. The tribunal's determination is notable for its lengthy and detailed examination of the various complaints made by the applicant and its full findings of fact. It rejected allegations made by the applicant that he had suffered racial abuse and that he was less favourably treated in his driving duties than other drivers. The tribunal also concluded that the applicant had failed to establish that there were other comparators in similar relevant circumstances who were more favourably treated. It found that the reason for the dismissal was the sexual intercourse in the office on 7 January 1999 while the shop was still open for trading. 
10.	The tribunal said that it would have had very serious doubts about the reasonableness of the decision to dismiss if the applicant was dismissed only because of the offence said to have been caused to Ms O'Brien (which offence the tribunal doubted) through her watching what had occurred on video when the applicant had no means of knowing that that was taking place. But its finding was that what influenced the company was that sexual intercourse had occurred in the office while the shop was open. An argument that the company discriminated against the applicant on racial grounds in deliberately setting him up and installing the covert camera to catch him out so as to have material for terminating his employment was rejected. 
11.	The tribunal that held that Mr Taylor, as the area manager responsible for a branch suffering losses, was entitled to install covert surveillance under the company's procedures. It said in paragraph 64: 
“There may be an issue as to whether such measures are an infringement of an individual's right to privacy under the Human Rights Convention, but we do not consider that the ethics of this should be allowed to obscure or deflect from the act for which the Applicant was dismissed.”
12.	The tribunal said that the company was reasonably entitled to view the applicant's conduct as serious and that dismissal was a reasonable response. Accordingly the applicant's complaint was dismissed. 
13.	Before the EAT, the applicant took the point that the covert surveillance breached Article 8 of the Convention. But the EAT, when referring to the argument, surprisingly and regrettably says nothing about it. This is one of the points taken by the applicant in his appellant's notice complaining of the EAT's decision. But it has repeatedly been said by this court that, as an appeal to this court would be a second tier appeal, this court is not so much concerned with whether the EAT was right but whether the tribunal reached the right decision (see, for example, Hennessy v Craigmyle & Co Ltd [1985] ICR 879). 
14.	The primary basis on which the applicant seeks permission to appeal is that his right to privacy under Article 8 of the European Convention on Human Rights was breached by the covert camera. That Article provides that everybody shall have the right to respect for his private and family life, his home and correspondence. In Halford v United Kingdom [1997] IRLR 471 it was held by the European Court of Human Rights that the interception by the public authority employer of an assistant chief constable's calls made on her office telephone was a violation of Article 8. The court held that as there was no evidence of any warning having been given to her that calls made would be liable to interception, she would have had a reasonable expectation of privacy for such calls, that expectation being reinforced by the fact that one telephone was designated for her private use and by the fact that she had been assured that she could use her telephone for the purpose of her sex discrimination case against her employer. The court said on page 476 paragraph 49:
“In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights.”
15.	Mr Hyam appears on behalf of the applicant. He submits that the tribunal should not have dismissed the applicant's case of unfair dismissal when the evidence which was central to the decision was obtained in breach of the applicant's rights to private and family life. Other points taken by Mr Hyam include that there was no evidence to justify the failure to notify the applicant about the covert surveillance, because others who worked there knew about it, and there was no evidence as to why he alone was singled out as the one to be kept in ignorance. 
16.	I am not able to accept these submissions. It is not right to say that the applicant alone was singled out to be kept in ignorance of the surveillance. There are findings of facts in paragraphs 11 and 39 of the tribunal's decision that there were other employees working at the Green Street Green branch in addition to the applicant who were unaware of the video surveillance at the branch. It is absurd to suggest that an employer setting up covert surveillance to catch a thief should give warning of the surveillance to a person who was suspected (wrongly in this case as I must point out) of being the thief. 
17.	There are more fundamental objections to Mr Hyam's submission. The Human Rights 1998 came into force on 2 October last year. It is not retrospective in its operation in any material respect (consider section 22(4)). This is not a case of a public authority whose decision is subject to judicial review as in R v Secretary of State for the Home Department ex parte Mahmood 8 December 2000 in which this court in an immigration context said that it would review a decision by a public authority before 2 October 2000 in no different way than it would review such a decision after the Act came into force. The decision to dismiss was taken over 1½ years before the Act came into force. The tribunal's decision was five months before the Act came into force. The employer was not a public authority. It is far from clear to me that when an employer is aware of serious theft from his shop and sets up a limited covert surveillance operation in his premises that there is any breach of Article 8. No authority directly in point has been cited to me. The Halford case seems to me plainly distinguishable. In that case the public authority was clearly interfering with private communications by telephone in circumstances in which the right to the private use of the telephone was acknowledged by the employer. 
18.	The applicant's actions constituting gross misconduct were admitted. Whilst it may be arguable that the Human Rights Act is horizontally applicable so as to apply to disputes between private parties in circumstances occurring after the Act came into force, in my judgment there is no real prospect in the particular circumstances of this case of this point succeeding so as to make the employer not entitled to treat that gross misconduct as a sufficient reason for dismissal. In my judgment there is no arguable error of law in the decision of the tribunal on this point. 
19.	In the skeleton argument prepared by the applicant himself before Mr Hyam was instructed, he raises a number of points. He queries some of the findings made by the tribunal. Thus it is said that the true reason for the dismissal was not what occurred between the applicant and Ms Such, but because Mr Taylor had a racial dislike of the applicant. 
20.	It was for the tribunal, and for the tribunal alone, to find the facts. In my judgment it is hopeless for the applicant now to seek to reopen those findings. No evidence has been put before me to suggest that there was no material before the tribunal on which it could properly make the findings which it did. Still less has it been shown that the conclusions of fact reached by the tribunal were perverse.
21.	There is no other compelling reason why this appeal should be heard. I must therefore dismiss this application. 
Order: Permission to appeal refused.
(Order does not form part of approved Judgment)