Royal Marsden NHS Trust v Oladele [1996] UKEAT 492_95_0807

EAT

Royal Marsden NHS Trust v Oladele

[1996] UKEAT 492_95_0807 · 1996-07-08

JUDGE J HULL QC:

These are two appeals to us. At the moment we are considering only what we call "the first appeal", an appeal by the Royal Marsden Hospital against a decision of the Industrial Tribunal sitting at London (North) under the chairmanship of Mrs Prevezer, on 30 November 1994 and 10 March 1995. That Tribunal published and registered their decision on 23 March 1995 and it is against that decision that the Royal Marsden Hospital appeals.

Mr Oladele is a gentleman who is now aged 28 (if my arithmetic is correct) and he was employed from 1990 onwards as an administrative assistant in the Works Department of the Hospital where, apparently, he was mainly concerned with working with a computer. The hospital is at Fulham Road in South West 3.

There were complaints about Mr Oladele's behaviour at work. It was suggested that, although he was capable of doing good work, he was inclined to become slapdash and make mistakes and to be indifferent to his responsibilities. It was said that he sometimes went to sleep in meetings. When corrected he was likely to be abusive and aggressive. There were complaints of that sort.

Of course it is not up to us to say whether there was anything in those complaints, but there were investigations. He had a manager, Mr Wellman. He made complaints against Mr Wellman that Mr Wellman had made remarks indicating racial abuse of him; that Mr Wellman was unfair; that he had it in for him; that he had bullied him; when I say he made these complaints, they were not in the form of grievances or anything like that, but he said that from time to time.

There was an occasion when it was said that he had been aggressive and abusive to Mr Wellman and there was an investigation by Mr Milton, who was a more senior manager and, as a result of that, Mr Oladele received a final written warning about his behaviour.

Then, on 19 November 1993, there was another incident. It was alleged that Mr Oladele had been ordered to do some work and when Mr Wellman came back after some time he found not only that the work had not been done, but that Mr Oladele was actually wasting time by playing some game with a computer. He rebuked Mr Oladele and Mr Wellman alleged that Mr Oladele became abusive and unpleasant and then he said (this was Mr Wellman's allegation) that Mr Oladele had assaulted him.

Those were complaints made by Mr Wellman and he put them before Mr Milton and there was a disciplinary hearing. Again, we are not going to go into the details. Mr Milton heard what Mr Wellman had to say. He heard what Mr Oladele had to say. He concluded that there had been an assault and abuse. He also, apparently, had in mind the poor work record, as he saw it; inefficiency and other complaints against Mr Oladele's work; and bearing in mind the final written warning and the other matters to which I have referred, he in fact dismissed Mr Oladele, the dismissal taking effect on 24 November 1993. There was an internal appeal about which we have heard nothing and that internal appeal was dismissed.

On 18 February 1994 Mr Oladele presented his IT1, his application, complaining of unfair dismissal and of race discrimination against him. He also made a complaint that he had been discriminated against on the ground of his trade union membership; we have heard no more of that and the Tribunal heard nothing of that. He asked for reinstatement.

It is instructive to look at his complaint because it shows that he was raising serious matters. He said:

"I have complained to Mr Milton about racism remarks, bullying, victimisation from Mr Wellman and Mr Milton just ignored these".

And he told the Tribunal in his application how Mr Wellman had bullied him and how he threatened members of staff so that they would not support him, Mr Oladele; he "offered the supervisors rewards if they helped him to get rid of me" . These are allegations of racist behaviour of a very unpleasant and indeed corrupt sort. "He has used all my weaknesses against me" , says Mr Oladele.

So those were the general nature of his complaints to the Industrial Tribunal. In their answer, which they put in on 28 March and which is at page 14 of our first bundle, the employers, the Royal Marsden Hospital, put in a circumstantial case. They made the complaints I have mentioned about Mr Oladele's behaviour at work and they gave a good deal of detail with dates, times and places. They mention the final written warning (which I have referred to). With regard to the failure to transfer Mr Oladele they say:

"At the meeting [this is in May 1993] Mr Oladele requested that he be redeployed to another department within the hospital. Despite the efforts of both the Personnel department and Mr Oladele himself, no suitable alternative employment was found."

So that was the case for the hospital about the failure to find suitable alternative employment.

Then, they set out the hospital's version of what happened on 19 November and they say:

"... Mr Wellman alleged that Mr Oladele had assaulted him, though Mr Oladele maintained that he had simply `bumped into Mr Wellman' [in other words an accident].

Following investigation a disciplinary hearing [they say] was convened by Mr Wellman's manager, Mr Milton, Director of Estate Management. After hearing the evidence, Mr Milton was left with a reasonable belief that the alleged assault had occurred. Mr Oladele was therefore dismissed for gross misconduct and continued poor work performance."

And then they refer to the appeal.

So the matter came before the Industrial Tribunal chaired (as I say) by Mrs Prevezer, and we have to look and see what the Tribunal found and whether there is any mistake in law in their findings because, of course we are only allowed to interfere if there is an error in law.

They say, among other things, that they have reached a finding. They set this out at the start. He "was unfairly dismissed and he was discriminated against because of his race" . They then go on to set out the facts on which they base their decision. They say that he was dismissed for gross misconduct. They do not here mention the other reason which the employers gave, which was that that was coupled with continued poor work performance; that seems to have escaped their attention entirely at this stage.

They go on to the facts and they find that, in some respects, Mr Oladele was not satisfactory. They say that there were complaints about his performance and they say he habitually made spelling mistakes, was untidy in his work presentation and in addition he lacked concentration and was drowsy whilst at work. (I am just giving a selection of these matters). Needless to say, we have no jurisdiction to find whether they were true or not, but this is what the Tribunal said.

They said that he was in the habit of taking regular days of absence without authority; they say there was a complaint in May that he had been aggressive and they say Mr Wellman also said that he had slept through meetings and so on, and had become abusive and angry with Mr Wellman and they say that the Applicant, Mr Oladele, had said that Mr Wellman did not like him and had, on several occasions, made racist remarks.

They continue:

"This allegation was not investigated by the Respondents at all at that stage. The hearing was held by Mr Milton who concluded that he did not believe that Mr Wellman was abusive to Mr Oladele but he believed that the converse was true and because of that the Applicant was given a final written warning."

So that was what happened in May. To a certain extent that finding contradicts what they had said before, because Mr Milton was listening to the complaints that Mr Wellman had been abusive and reached the contrary conclusion.

Then they set out the final incident on 19 November, I have already referred to what happened there and the allegation of an assault. And they say as follows:

"Mr Milton investigated the matter and we read the full minutes of that investigation, on the same day there was also a disciplinary hearing at which Mr Milton informed the Applicant that he was being dismissed on grounds of misconduct with immediate effect."

We are told and have no reason to doubt that the hearing that day amounted in totality to a long and careful hearing and there are minutes of that at which the Tribunal looked, as they say.

Then they say as follows, after saying that the Applicant's internal appeal had been rejected:

"... Mr Wellman in evidence to us admitted that he had not any race awareness training and admitted that he was not satisfied with the Applicant's performance. ..."

Why that should be an admission one does not know. It was Mr Wellman who claimed throughout that he was not satisfied with the Applicant's performance. They refer to details of that.

They say:

"4 It was clear from Mr Wellman's evidence that he was not aware of the sensitivity in working with persons of other races and admitted that he might say to a woman `good girl well done' although he cannot recall that he actually called the Applicant `boy'."

That does appear to us to be irrelevant except perhaps as showing that Mr Wellman may have had an unfortunate manner. There are, no doubt, a number of tactless ways one can address men or women or indeed persons of different race to oneself. That is not what is meant by discrimination. Discrimination means "treating a person less favourably on the ground of his race". Of course it may be some evidence of it, but here the complaints were not of calling Mr Oladele "boy" on some occasion or that he had called some lady "girl" on some occasion; the complaint was of foul racial abuse. Why did they not make findings about that? That would be plain evidence, to say the least of it, of a disposition to discriminate, even if discrimination did not take place. Why did the Tribunal not say whether they found, having heard all the evidence, that Mr Wellman had used racialist abuse? Why did they not make findings about Mr Oladele's other allegations of very unpleasant and, indeed, corrupt behaviour by Mr Wellman? Were they true or were they not? The Tribunal heard the evidence and of course we did not.

So then they go on to the unfair dismissal claim. They say that Mr Milton believed that the Applicant had assaulted Mr Wellman as described. He said that from the evidence he concluded that he believed Mr Wellman and disbelieved the Applicant's account. They deal with the unfair dismissal claim.

It is clear, they say, that he believed (in other words they accept Mr Milton's good faith) Mr Wellman's account and disbelieved the Applicant. There was no corroboration of either account and in fact the only nearby witness denied hearing anything except a noise and a scuffle outside. If one may make a comment, if there was an assault that is exactly what a nearby witness might hear, but there it is. It might also be a sound which he might hear if there had been some sort of accident, with somebody tripping over somebody else. Mr Wellman had not complained to Mr Veller about the incident when he saw him immediately after the alleged incident, neither were there any bruising or marks on Mr Wellman's body.

"Mr Wellman appeared to us to be a tall substantially built person unlikely to have received a blow without making a complaint."

That seems, on the face of it, an extraordinary remark. Mr Wellman made a complaint to the person to whom it was his business to make a complaint, that is to say Mr Milton. One would not suppose that a manager who had just been assaulted would necessarily go to another employee and say, "I have just been assaulted", but there it is. At any event that was a matter for Mr Milton and not for the Tribunal.

"From the investigation that was carried out it is clear that there was not sufficient evidence for a reasonable employer to conclude that there had been an assault that would amount to gross misconduct to lead to summary dismissal."

They say:

" ... we do not consider the Respondent acted reasonably in treating this act which was not proven as sufficient grounds of a reason within the criteria laid down in Section 57(3) of the above Act to fairly dismiss the Applicant. We are aware of the danger of substituting our own view in these circumstances but we conclude from the evidence and from the facts that a reasonable employer would not have dismissed the Applicant on those facts."

What facts? Mr Milton had found that he accepted Mr Wellman's evidence that he had been assaulted and he rejected Mr Oladele's evidence that it was simply an accident. Why should he not? The only ground which the Industrial Tribunal give is that Mr Wellman had not complained to Mr Veller, another employee. He might or might not have done that. What Mr Milton had to do was his duty, that is to say to decide what evidence he accepted and what he rejected. He was not a judge, but he had a duty of fairness to decide whether he believed Mr Wellman, in the face of Mr Oladele's denial.

It must be the commonest thing in the world for any judge (and I suppose quite a common thing for any manager) to have to make up his mind whose evidence he believes and certainly, applying the stricter tests that apply to judges, I have never heard it said that a judge who hears one witness who says one thing and another witness who says another thing, is not entitled to say that he believes one and not the other.

Mr Milton had the advantage of hearing these two witnesses. He did believe one and he rejected the evidence of the other and it seems to us that the Industrial Tribunal were going far beyond their duty, far beyond anything they were entitled to do, in saying that he was not entitled to accept the evidence of Mr Wellman. They were under a duty to decide first of all whether Mr Milton had reasonable grounds for dismissing, and of course for that they had to consider a matter which they seem not to have considered at all. All that Mr Milton had in mind; the poor work performance which was alleged. What did he hear about that and what did he find about that? What did Mr Milton do about the enquiry? Did he reach a conclusion? Was the enquiry fairly conducted? Of course, if they had found that Mr Milton had acted unfairly during the enquiry; had heard one side but not the other; had made prejudicial remarks throughout the enquiry; had shown that his mind was already made up and he was not prepared to listen to reason - that would be an important finding and would inevitably entitle the Tribunal, indeed make them bound, to say "This was not fair".

Having believed one witness and rejected the evidence of another witness was Mr Milton entitled, finding that the manager was assaulted, to say that in view of the previous record this justified dismissal? It seems extraordinary to us, if the Tribunal were saying that that was not the position. If there is any assault in premises at which the owner employs his employees, that will, on the face of it, justify a dismissal; a fortiori, one would have thought, in a hospital, but that is a matter first and foremost for the employer.

So it does appear to us that here there are quite insufficient grounds for the Tribunal to say that there was an unfair dismissal. They have not found that there was not a fair enquiry. They have not found that, even if there was an assault, the decision was beyond the reasonable response of an employer. They say nothing about the good faith of Mr Milton, that he did not conduct the enquiry properly or was not listening or was biased, or something of that sort and it seems to us that they were doing exactly what they should not. They were trying the question which was, in fact, to be tried by Mr Milton. Their duty was to decide whether Mr Milton had proceeded properly and they do not seem to us to have done their duty in that respect and certainly, if they did, they did not express their conclusions properly.

Then we come to the race discrimination claim. It is important that when such complaints are made they should be treated very seriously indeed by all concerned. It is also important that Industrial Tribunals should be alert to the fact that such complaints are easy to make and may be hard to reject, hard to repudiate. It is necessary to listen very carefully.

The Court of Appeal has said that a Tribunal is entitled to listen to the explanations for any adverse treatment which an employee has received, looking to see whether he has been discriminated against on the ground of his sex or race. They must then look at the explanation and decide whether they believe it or not. If they reject the explanation which is given by the employers, then they are entitled to say to themselves, "What is the explanation?" and if the only explanation that seems at all likely is one of sexual or racial discrimination, then they are most certainly entitled to conclude that there has been such discrimination. But before we come to any questions of inferences, there were in this case plain indications, according to the Applicant, of racial discrimination against him or, at any rate, threatened racial discrimination. It was alleged that he had been racially abused and told, in terms relating to his race, that Mr Wellman would "get at him when he wanted to".

This Tribunal should have enquired carefully into that and reached a conclusion on that. "Did Mr Wellman say that and not just on one occasion, but on several occasions, or did he not"? That was not a case simply for the employers, it was a case for the Tribunal. Did that happen? We look at what they do say. They say:

"We draw inferences from the following facts:

(1) The Applicant complained of race discrimination and that his manager was victimising him and making racist remarks both before the disciplinary hearing and at the disciplinary hearing in November 1993 ..."

So they had the matter in mind. They say:

"The Respondents did not investigate these claims because as, Mr Milton said in evidence to us, he did not think they were central to the issue. In evidence Mr Milton had said that if the Applicant wished to make a grievance about it then he should do so."

Did they accept the truth of that explanation from Mr Milton? Did they think it was truthful or not? We do not know. Did they think it was an adequate explanation or did they think that there was in fact something suspicious about this? If they rejected the evidence of Mr Milton they were of course entitled to go on and ask themselves, "Why was this not investigated?" and if they were driven to the conclusion that that was indeed because Mr Milton, so far from being genuine in what he had told them, was in fact discriminating against Mr Oladele, then they should and no doubt would have said so. They do not seem to have looked into that and thought about that. They say too:

"(2) The Applicant was the only Afro-Caribbean in the department. That was not pursued and we are told in fact there was another gentleman of similar ethnicity in the department.

(3) The relationship between Mr Wellman and the Applicant was poor and deteriorated. Mr Wellman considered that there was a personality clash and that the Applicant was a difficult employee."

Was that a genuine explanation by Mr Wellman or did they reject it? If they rejected it what did they think was the true explanation?

"(4) Mr Milton confirmed that in the workshop bad language was often used."

What has that got to do with it, one asks oneself? I am afraid that people do at work and on other occasions often use bad language. What does it add up to? They had been asked to say that what happened was that racist abuse had been used. They do not.

"(5) When it was suggested that Mr Oladele be transferred to another department this was not actively pursued."

The employers had said in their answer that efforts had been made, both by them and by Mr Oladele, and that it had not been possible to find another post for him. Was that just so much untruth, so much attempt to mislead the Tribunal or was it true?

It does seem to us that the Tribunal have given insufficient reasons for their findings here. They say:

"10 We therefore draw inferences from these facts that the reason why these matters were not pursued was because of the Applicant's ethnic origins and colour and that he was discriminated against because of his race contrary to Section 1 and 4 of the Race Relations Act 1976."

This was a serious charge and an Industrial Tribunal (as has often been said) though of course it is not bound to go into every little detail, is not bound to show every stage of its thought, is bound to tell the losing party quite plainly why he has lost and the winning party quite plainly why he has been successful.

It seems to us that, bearing in mind the requirements of the law, the burden of proof being on the Applicant in relation to his complaints of racism, the burden of proof being on the employer to show the reason for dismissal; the Applicant having made his allegations; the employers having made their allegations, the Tribunal should have made their findings on these allegations.

What was put forward by the employers was quite plainly a case of perfectly fair dismissal on grounds which they set out. What was put forward by the Applicant was quite plainly a case of racist abuse and things that went further than abuse, about which he was entitled to have findings made.

It seems to us that the Tribunal has not made adequate findings and that that is therefore an error of law of which indeed each party is entitled to complain here. We are very grateful to Mr Umezuruike for his brief but cogent submissions, but nonetheless we are not satisfied that this is a decision which can stand. We give these reasons for what we have said to show why we are allowing the appeal.

It is not up to us to say in any way whether the complaints of either party were justified. We have no right whatever to say what the facts were or what the decision of the Tribunal should have been. We do say though that this Tribunal appears, whether their decision was right or wrong on any or all of the points before them, not to have expressed their reasons sufficiently and we think in the circumstances that the only course that we can take is to remit the matter to a Tribunal differently constituted so that they can consider all these serious matters from the start and reach a decision on all the matters laid before them by the parties and give proper reasons for such decision as they do reach on those complaints.

That decision means that we do not, in our view, need to consider what appears to us to have been a procedural mishap. It was agreed that the matter should be restored for a compensation hearing by (I think) 1 July. It was not restored and Mr Oladele says that that failure to restore the matter for the compensation hearing was because this appeal was being brought. On the face of it, that is not an unreasonable thing to say and we would certainly be disposed to think that there had a mishap in that sense.

The Tribunal then said that the matter was to be treated as dismissed because of the failure to restore it. We do not need to enquire into that any further. We hope that if there is a finding which leads to a compensation hearing, the Tribunal to whom we remit the case will in due course conduct the compensation hearing in accordance with law, as they are going to conduct the other parts of the case.

So we allow the appeal and we make the order which I have indicated. That is the judgment of us all.