United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OLUFEKO (Solicitor) Messrs Liberty Solicitors 85 Kingsland Road Shoreditch London E2 8AG


 


MISS RECORDER SLADE QC:

1. This is a preliminary hearing of an appeal against the dismissal by an Employment Tribunal of Mr Oyewole's claims of unfair dismissal, race discrimination and wrongful dismissal. Mr Oyewole had been employed for nearly 9 years as a bus driver. His is of black African origin. On 6 July 1998, he was given a final written warning which was to stay in place for 2 years for poor driving standards. The incident which led to his dismissal occurred on 24 March 1999. On that day he was in the rest room at the Atlanta Boulevard bus terminal. No smoking signs had recently been put up in the terminal. It was not clear whether the no smoking ban applied to the whole of the rest room or merely to one end. On that day Mr Oyewole was in the room, as were 5 other employees who are white. One of them smoked the stub end of a small cigar. Mr Oyewole remonstrated with the smoker and he became angry. Events then occurred which were the subject of a complaint. Mr Oyewole, it was alleged, had pushed a table towards an individual which came into contact with that individual and had thrown his cap at that individual. It was also alleged that racist language had been used by Mr Oyewole.
2. An investigation took place and it was conducted by Mr Bainbridge. Mr Bainbridge had five statements from witnesses including the complainant and one statement on behalf of Mr Oyewole. He heard Mr Oyewole at the disciplinary hearing. With that material before him, he concluded that Mr Oyewole had thrown his cap towards another member of staff striking him on the knee and that he had indeed kicked the table towards one of the other individuals and the table struck that person lightly. He also found that racist language had been used by Mr Oyewole.
3. Having regard to the conduct and the final warning, a decision was taken to dismiss Mr Oyewole. There was no appeal against that dismissal. The Employment Tribunal concluded that the dismissal was fair in all the circumstances, that there had been no wrongful dismissal and that there was no race discrimination. We have before us grounds of appeal and a skeleton argument. We would wish to make it clear that in so far as attacks are made on facts found by the Employment Tribunal, those disclose no arguable points of law. However as the case has been developed before us, Mr Olufeko who appears for Mr Oyewole as he did at the Employment Tribunal urged on us that the Tribunal erred in law in placing undue weight on the final warning which was given to his client by Mr Bainbridge when in fact it was admitted that the final warning was described inefficiently given. The Employment Tribunal in paragraph 19 of its decision had referred to the argument which was then advanced before it that "Mr Bainbridge's decision was contaminated by the way in which the previous disciplinary hearing had been dealt with." Whilst it is not entirely clear from the passage in paragraph 19 whether the Tribunal had in mind the argument which has been placed before us, namely that Mr Bainbridge did not have power to give that final written warning, the Tribunal did record that objections had been made to that final warning and moreover that an appeal which should have been available against that final written warning was not in fact held.
4. The final written warning appears to have been a material ground for the Tribunal's decision that this dismissal was a fair dismissal. They make reference in paragraph 23 of their decision to the Applicant's record and also had made reference to that warning in paragraph 19 of the decision. Since in our view there is an arguable point of law to challenge the findings in relation to that final warning and the weight which was given to that warning in concluding that the dismissal was an unfair dismissal, we consider that this ground of appeal contains an arguable point of law. We will come in due course to what is to be done about that.
5. Moving on now to the complaint of race discrimination. Whilst the two are not necessarily inter-linked, the case is being made on appeal that the disparity and treatment of Mr Oyewole as compared with the individual who was smoking notwithstanding the no smoking signs, was material from which an inference of race discrimination should have been drawn. Since in our view there is an arguable point of law on the unfair dismissal aspect of this matter, we are of the view that the race discrimination claim should go forward as well to a full hearing. The conclusion reached by the Tribunal, unfair dismissal, may have had some impact on the race discrimination claim. For that reason we consider that appeal against the dismissal of the race discrimination claim too should go forward. The basis upon which the matter is to go forward is an elaboration of what is already in the existing grounds of appeal but it will be necessary for the grounds of appeal to be amended to take the unfair dismissal point which has been outlined to us and which we consider to be an arguable point of law. We give leave for the Notice of Appeal to be amended for that purpose.
6. In giving permission for this matter to proceed to a full hearing we are not to be taken as expressing any view whatsoever on the ultimate prospects of success of the appeals on either unfair dismissal or race discrimination. Leave to amend the grounds of appeal, listing category B. Time estimate half a day. Skeleton arguments to be lodged and exchanged 14 days before the hearing.