United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS K GOLLOP (of Counsel) Instructed by: London Underground Ltd 55 Broadway London SW1H 0BD


 


JUDGE D M LEVY QC

1. This is the Preliminary Hearing of an appeal by London Underground ('the Appellant') (our index has the parties in the wrong order) following a complaint made by Mr A O Famakinwa ('the Applicant') that he was unfairly dismissed and was the subject of race and sex discrimination. There was a hearing before a Tribunal in London (Central) on 21 & 22 August and 1 & 2 October 2001. The decision of the Tribunal was promulgated on 25 October 2001.
2. The Applicant's claim of sex discrimination was dismissed. Another Respondent was dismissed from the proceedings. There was a holding that the Appellant discriminated against the Applicant because of his race and that he was unfairly dismissed. He was awarded £30,823.83 in compensation.
3. From that decision, the main ground of the appeal is that there appears to have been a holding by the Tribunal that there was an incident, which Counsel for the Respondent conceded if it had taken place, might have properly been the grounds for a dismissal Applicant that the Tribunal appear to have found that when the matter was investigated, there was a fair investigation of that incident and that the disciplinary proceedings, which followed, came up with a justifiable decision. In these circumstances, the findings of the Tribunal, that there was race discrimination, sits unhappily with those findings of fact.
4. In paragraph 10 of the extended reasons there is this said:

"During the course of the hearing, the Applicant's counsel seemed to agree that if it was gross misconduct dismissal was the correct sanction. However, this Tribunal does not believe, taking all the circumstances into consideration, that this was a reasonable sanction bearing in mind what had happened.

5. It has been asserted that at the Employment Tribunal hearing a firm concession was made that there was a concession by Counsel, where the Tribunal say the Applicant's Counsel seemed to agree if Counsel appearing below agree that a concession was made by the Applicant's Counsel and the terms of that concession, a document signed by them should be lodged with the Tribunal. . If Counsel cannot reach such an agreement, then the Chairman's notes should be sought concerning any concession, so that the panel hearing the full appeal on this case can, if they so wish to endeavour, to discover whether the concession was made and if so what it was.
6. The grounds of appeal are arguable, though the second sentence of paragraph 6(b) is somewhat, perhaps, misleading. Miss Gollop tells us that there was no evidence exchanged prior to the hearing which the Tribunal stopped her from calling. If on reflection she considers this ground of appeal should be withdrawn no doubt she will inform the Tribunal.
7. Category C, half a day.