Nazren v. Gate Gourmet London Ltd, Court of Appeal - United Kingdom Employment Appeal Tribunal, February 19, 2008, [2008] UKEAT 0454_07_1902

Resolution Date:February 19, 2008
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Nazren v. Gate Gourmet London Ltd
 
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Copyright 2007Appeal No. UKEAT/0454/07/LAEMPLOYMENT APPEAL TRIBUNAL58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 12 December 2007 Judgment handed down on 19 February 2008BeforeTHE HONOURABLE MR JUSTICE WILKIEMRS R CHAPMANMR K EDMONDSON JPMR S NAZREN APPELLANTGATE GOURMET LONDON LTD RESPONDENTTranscript of ProceedingsJUDGMENTUKEAT/0454/07/LA APPEARANCESSUMMARYUnfair Dismissal / Race Discrimination / VictimisationThe Employment Tribunal was entitled on the evidence before it to reject the various claims made by the Appellant on grounds of fairness, race discrimination, and victimisation.UKEAT/0454/07/LA-15-THE HONOURABLE MR JUSTICE WILKIEFactual and procedural background1. The Appellant had been employed by the Respondent since March 1990. In 2004 he was promoted to the position of despatch controller and was responsible for the supervision of 18 members of staff.2. On Saturday 25 February 2006 he was working a morning shift between 4am and noon. Upon leaving the premises at the end of his shift, having taken off his overall, he made to leave the building via the security gate. He was routinely stopped by the security guards and searched. In his trouser pocket were three packets of Walkers biscuits. When asked where he got them from he claimed that he had brought them in from outside. The shift controller Mr Sukhija and Mr Gateau the duty controller were summoned, accompanied the Appellant to the duty office, consulted the duty manager Mr Tiwari and the Appellant was allowed to go home.3. At approximately 3.30pm on the same day Mr Pim, the Process Manager phoned the Appellant and informed him that he was suspended on full pay pending investigation of the incident. 4. On 27 February 2006 Mr Khangura, section manager, wrote to the Appellant inviting him to attend an investigatory meeting on 2 March 2006. In advance of that meeting on 1 March 2006 Mr Khangura conducted his investigations which included taking statements from three security guards and speaking to Mr Kandhari and Mr Sukhija. On 2 March the investigatory meeting took place with, amongst others, the Appellant and Mr Kandhari as his friend in attendance. At that meeting the Appellant admitted that the biscuits were not from outside, that he had picked them up earlier in the shift meaning to take them back to where they should have been and, when searched by the security guards, had panicked and told a lie. He also accepted that he had not owned up having given a false account when, on that same afternoon, he had been telephoned by Mr Pim for the purpose of suspending him.5. On 6 and 13 March, in the course of the investigation, Mr Khangura interviewed Mr Tiwari and Mrs Bhatti, a checker, each of who confirmed that the biscuits matched the Respondent's stock.6. On 14 March Mr Khangura produced a document entitled ``Investigation Summary'' which included the following statement:``Mr Nazren maintained originally that he had brought the biscuits into the unit for consumption. However, he changed his story when I interviewed him, stating at the time he was searched, that he was in shock when he realised he had them in his possession and said the first thing that came to his mind.On the day of the search, even though he had a number of opportunities, at no stage did he mention to anyone that he had found them and had forgotten to return them to Trayset.Mr Nazren in my opinion was in possession of Company property and moreover was fully aware of company rules and regulations, being in possession of company/customer property is considered an act of gross misconduct. For this my recommendation would be that there is a case to answer. This should be put forward to the next level for a disciplinary hearing.''7. On 27 March the Appellant was written to by Ms McBride, Process Manager Production. She informed him of Mr Khanguras's investigation and invited him to attend a formal disciplinary meeting on 22 March. She said that disciplinary action in accordance with the company's disciplinary procedure would be considered at the meeting, and she enclosed a copy of the company's disciplinary procedure. 8. The disciplinary hearing took place on 22 March. In that meeting the Appellant stated that he had found the biscuits within the company's premises, was going to take them back to where they should have been, but failed to do so because he forgot, by reason of the fact that he had to rush home because his wife was very ill and he had to open the door for the cleaner. He acknowledged that he had told Security that he had brought the biscuits in with him and explained that he had panicked as he had to reach home by a certain time to open the door for the cleaner and he said the first thing that came into his head. At the conclusion of the meeting Ms McBride said that he had been found with the items on him, he admitted to having them and that that was gross misconduct. The penalty for that was dismissal and that was the sanction she was imposing. She informed him of his right to appeal against that decision.9. On 23 March she wrote a letter to Mr Nazren confirming the decision to terminate his contract of employment under the company disciplinary procedure, the reason for the dismissal being ``misappropriation of company property''. 10. On 29 March the Appellant appealed to Mr Woodhouse the General Manager. He believed the penalty was too harsh. No account had been taken of his 16 years unblemished loyal service with the company. The appeal hearing took place on 6 April. It was chaired by Mr Gill the Deputy General Manager. Mr Gill had with him Mr Yeshin of Human Resources and the Appellant was represented by Mr Egan the full time official of Amicus. The Appellant was given the opportunity to explain why he was appealing. He referred to his 16 years of service and good record; he had never on previous occasions been found with company property when searched and his area of work was always kept tidy. Mr Gill asked if there was anything new that he would like to raise, and the Appellant said that he did have the biscuits but explained that on that day he had had many problems, referred to his wife having called to say that she was not well and that he should get home to let the cleaner in. He agreed that he had lied at the gatehouse and agreed that he should not have done so. At that point Mr Gill adjourned the meeting. After the adjournment Mr Gill said that he had reviewed the comments made in the first part of the meeting and there was no new evidence. Mr Gill, in his evidence, said that he had made clear to the Appellant at that point that his appeal was not going to succeed. At that juncture Mr Egan said he would like to make a submission on behalf of the Appellant. He was permitted to do so. He raised certain procedural issues concerning the manner in which the Appellant had been suspended. He submitted that the punishment did not fit the crime given the trivial value of the biscuits involved, asked the company to take into account length of service and good employment record and, whilst acknowledging that dismissal was ``within the parameter of the sanction that could be taken,'' asked for another sanction to be substituted. At the end of the meeting Mr Gill thanked Mr Egan for his submission, said that the issue was one of theft, that he would look carefully at the issues that Mr Egan had raised and would get back to them in approximately 7 days. At that point Mr Egan passed another document to Mr Gill which was an incident report concerning another case of theft which had not resulted in the person's dismissal and asked the company to look at that, in terms of consistency.11. On 11 April Mr Gill wrote indicating the outcome of the appeal. In the meantime Mr Gill had considered the case of Mr Haynes whose case was the subject of the documentation passed by Mr Egan. He received an e-mail from Mr Yeshin on 7 April reporting the outcome of his investigation in respect of Mr Haynes. That read as follows:``1st March was stopped by security and he was found to have hand lotion. He was taken over to the KC office and was seen by Mark Beardsly and Sunny Sandhu (22.50). As there was no shift manager on duty and as the man was not a danger they decided to hand the matter over to the shift manager Paul Deegan for him to sort out in the morning. I spoke with Paul and he...

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