United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S SIMBLET (of Counsel) Instructed By: Southwark Law Centre Hanover Park House 14-16 Hanover Park Peckham London SE15 5HG
For the Respondents	MISS G BANKOLE-JONES (of Counsel) London Borough of Southwark Legal (Contract) Services Dept South House 30-32 Peckham Road London SE5 8UB


 


JUDGE CLARK: We have before us appeals by both parties to these proceedings brought by the Applicant, Mr Onifade, against his former employer, the London Borough of Southwark (the Council) and others, which occupied 22 days of hearing before the London South Employment Tribunal between February 1996 and December 1997. The Tribunal's reserved decision under appeal was promulgated with extended reasons on 3 April 1998.

1. The Applicant commenced his employment with the Council in April 1990. He was dismissed with effect from 26 November 1995. At that time he held the post of Personnel Officer in the Council's Education Department. He is black and of Nigerian racial origin.
2. He presented two Originating Applications to the Employment Tribunal. The first in time, presented on 24 November 1995, alleged direct race and sex discrimination and victimisation. The second, presented on 7 December 1995, alleged unfair dismissal. The issues raised in those consolidated complaints are conveniently set out in paragraph 32 of the Tribunal's reasons. For the purposes of these appeals, it is sufficient to summarise the Tribunal's conclusions in this way:

1) They dismissed all complaints of direct race and sex discrimination on the grounds

(a) that those complaints arising more than three months before the presentation of the first Originating Application were time barred and

(b) had they not been, they were not made out on the facts.

2) They upheld a complaint of victimisation under the 1976 Act based on a protected act, that is, a memorandum sent by the Applicant to his Line Manager, Maria King, dated 29 August 1995, consisting of disciplinary proceedings then commenced against the Applicant on 31 August 1995 (the victimisation finding).

3) They dismissed the complaint of unfair dismissal, finding that the reason for dismissal was redundancy and that it was fair (the unfair dismissal finding).

The Council's Appeal (EAT/729/98)

3. Having considered the effect of the recent House of Lords decision in Nagarajan v Swiggs and Others (15 July 1999), Miss Bankole-Jones withdrew the Council's appeal against the victimisation finding. Accordingly, we shall dismiss that appeal.

Mr Onifade's Appeal (EAT/730/98)

4. Leave to pursue this appeal was granted by a division of this Tribunal, presided over by Judge Byrt QC, sitting on 9 October 1998, limited to those grounds of appeal contained in an undated Amended Notice of Appeal. The first of those limited grounds, advanced by Mr Simblet on behalf of the Applicant, is that the Tribunal failed to make any findings in relation to his allegations of sex and race discrimination arising from events occurring after 2 June 1995. In reality, the only allegation after that date resulted in the victimisation finding and its effect on the dismissal to which we shall return.
5. Secondly, as to the question of dismissal, it is said that the Tribunal failed to give adequate reasons for concluding that the dismissal by reason of redundancy was fair. In particular, it is said that the Tribunal failed to deal with the Applicant's case as to the Council's application of their assimilation and redeployment procedures to him. The short answer, in our judgment, is that the Tribunal adequately dealt with that case, particularly at paragraph 60-61 of their reasons.
6. Thirdly, the Applicant points to an inconsistency in the Tribunal's reasons. In paragraph 23 they say:

"The incident which eventually led to the Applicant's dismissal occurred in June 1995."

What happened was that on 2 June 1995, the Applicant became agitated in the office of Ms Fuller, a Personnel Officer. As a result, he was suspended by Maria King on Monday 5 June. That was a cooling-off suspension. He was then seen again on 7 June in company with his trade union representative, Mr Errol Harry, and his suspension was lifted. Nothing further happened until 31 August, when a disciplinary investigation into the 2 June incident was commenced. That led to the victimisation finding.

7. The point that is made is that the finding in paragraph 23 is inconsistent with the Employment Tribunal's eventual conclusion that the dismissal was by reason of redundancy and was fair. We have carefully considered that submission and have concluded that reading the reasons as a whole, the finding at paragraph 23 simply does not fit into the Tribunal's overall conclusions. They found, as part of the victimisation finding, that Maria King, as a result of the memorandum from the Applicant dated 29 August (the protected act) had made up her mind to ensure his dismissal, even if he was successful in surviving the redundancy exercise. However, in the event he was dismissed as a result of the redundancy exercise on 26 November before the disciplinary investigation was completed on 30 November.
8. Mr Simblet submits that since Maria King was involved in the redundancy exercise, her victimisation of the Applicant must have materially tainted the redundancy exercise. We do not think that that necessarily follows as a matter of logic, and certainly was not the way in which the Tribunal resolved the case.
9. In these circumstances, bearing in mind the approach of Waite LJ in Jones v Mid-Glamorgan County Council (1997) IRLR 685, paragraph 30, we are not prepared to say that this apparent inconsistency vitiates the Tribunal's clearly expressed conclusions as a matter of law.
10. The remaining amended grounds of appeal are essentially matters of fact for the Employment Tribunal, not actively pursued by Mr Simblet. In short, we can find no error of law in the Tribunal's reasoning such as to undermine their conclusions reached in this case. Accordingly, the Applicant's appeal must also be dismissed.