MR A A FADIPE v (1) LONDON UNDERGROUND LIMITED [1999] UKEAT 702_99_2910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 702_99_2910Case No Appeal No. EAT/702/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A FADIPEAPPELLANT(1) LONDON UNDERGROUND LIMITEDRESPONDENT
Before
Lord Johnston Miss C Holroyd Ms B SwitzerDate 29 October 1999
[1]APPEARANCES For the Appellant MR OLUFEKO (Solicitor) Messrs Olufeko & Co Solicitors 85 Kingsland Road Shoreditch London E2 8AG LORD JOHNSTON : This is a preliminary hearing into an appeal by the appellant employee against findings of the Employment Tribunal to the effect that he had not been unfairly dismissed from his employment with the respondents nor had he been discriminated against in terms of the Race Relations Act 1976 in the circumstances surrounding the termination of his employment. Mr Olufeko appeared before us and submitted essentially two basic separate grounds of appeal relating both to the unfair dismissal aspect of the matter and to the discrimination allegations.[2]Dealing with the latter first, the tribunal deal with that matter in their decision at paragraph 16(8). Essentially two complaints were made. One related to acts of discrimination by employees of the respondents at the time of the incident involving the appellant and another employee which can be loosely classified as a fight. The complaint was that while colleagues looked after the white employee who was the other party to the incident, the appellant was not given the same treatment and was left to fend for himself. This, it was said, was to be on grounds of race and amounted to a discriminatory act, whatever the consequences of law might be of that particular position.[3]The tribunal, it is fair to say, at paragraph 16(8) do not expressly direct themselves to that matter, but in paragraph 7(10) of their findings of fact, it becomes perfectly clear that their finding was that advice was given to the appellant to go to hospital but he had left the scene before the opportunity to take up that advice arrived in the form of an ambulance.[4]In these circumstances, we are satisfied that as a matter of fact, bearing in mind that the tribunal's decision is riddled with references to the lack of credibility of the appellant, that there is no substance in that position.[5]The more substantial issue on discrimination was that in treating both the appellant and other party to the fight, DSM Fleming, differently in relation to punishment, the former being dismissed and the latter being cautioned, there had been discrimination as a matter of fact which was race related. This is directly faced up to by the tribunal in paragraph 16(8) and dismissed as a matter of fact where they state:
"… LUL has satisfied the Tribunal that there was a genuine, non-racially discriminatory, explanation for the fact that the Applicant was dismissed whereas DSM Fleming received a lesser punishment of final caution which will remain in force for two years. …"
[6]Against that background we are entirely satisfied there is no substance in the appeal so far as directed to the issue of discrimination and that matter will go no further.[7]Turning to the issue of unfair dismissal. The point to which Mr Olufeko founded upon essentially was that warnings and at least one warning that was given to the appellant prior to the incident in question in relation to his conduct, was flawed in as much that it was alleged to be a formal written warning, but the person who gave it was not empowered so to do and did not follow the correct procedures. His argument was that if that was taken out of the equation the conclusion should have been that the conduct in question complained of, without the prior history, was not sufficient to warrant dismissal.[8]He referred us to the case of Stoker v Lancashire County Council [1992] IRLR 75 , but we consider that as nothing to the point on any question of the consequences in law of the failure of an employer to follow proper procedures in disciplinary matters, because it was concerned with a failure to give a right of appeal which is plainly a fundamental flaw.[9]However, having said that, if it appears, and this is purely an hypothesis at this stage, to be the case, that the validity of one of the warnings relied upon is suspect and that was material to the decision to dismiss then there may well be a procedural issue to consider in this case, at least to the extent, if that is a relevant position, to require the tribunal below to consider under the well-known case of Polkey whether or not that procedural issue would have made any difference.[10]In these circumstances, on the very limited question, firstly, of whether or not the validity of one of the warnings is relevant to the decision to dismiss and secondly, as to whether or not there is a question to try as to the consequences of that invalidity in relation to the dismissal, we will allow this case to go to a full hearing limited to those issues.[11]The appeal, at this stage, is therefore allowed to that extent to go forward to a full hearing on that question but will be dismissed in relation to the issues of discrimination.