MR A A FADIPE v LONDON UNDERGROUND LTD & OTHERS [2000] UKEAT 702_99_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 702_99_1906Case No Appeal No. EAT/702/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A FADIPEAPPELLANTLONDON UNDERGROUND LTD & OTHERSRESPONDENT
Before
His Honour Judge J Altman Mr P R A JacquesDate 19 June 2000
[1]APPEARANCES For the Appellant MR A OLUFEKO Solicitor Messrs Olufeko & Co Solicitors 85 Kingsland Road Shoreditch London E2 8AG For the Respondent MS LYDIA SEYMOUR (of Counsel) Instructed by: London Underground 55 Broadway London SW1H 0BD JUDGE J ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (North) over three days in February 1999. The Appellant appeals against the dismissal of complaints of unfair dismissal and race discrimination. This matter came before the Employment Appeal Tribunal, presided over by different Chairmen and members than today, to deal with the preliminary hearing and at paragraph 10 of the judgment of Lord Johnston, they identified the point of law available for argument at a full hearing:
"On the very limited question firstly of whether or not the invalidity 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."
[2]When the Appellant was dismissed the Respondents took into account two previous warnings. The Appellant says that one of these was procedurally flawed in that the most that could have been given was an informal oral warning but that without any formal disciplinary hearing and contrary to the Respondents disciplinary code, management had issued a formal written warning. As to the second matter, in respect of which a warning was given and was reduced to writing, because the incident preceded the Appellant's absence due to sickness he had not received the written formal warning at the time of the final incident. On behalf of the Appellant, it is said in effect that the procedural flaw in the first warning should effectively have nullified that warning, so as to make it something that was not available to taken into account by a reasonable employer at the time of the final dismissal procedure.[3]It is suggested that there was evidence before the Employment Tribunal that, without those warnings, there may not have been a dismissal particularly bearing in mind the treatment to the other protagonist in the incident, Mr Fleming, who had no previous warnings and was not dismissed but was in the recipient of a final of a formal written warning. We accept that there is substance in the argument that if the employers were wrong to take into account the warnings, it cannot be said that dismissal would properly otherwise have ensured. Because of those matters, the Appellant argues that there should not have been a dismissal and that therefore, the Employment Tribunal was wrong in not finding that the dismissal was unfair. It is argued that the Respondents took into account in a crucial way something which should not have been taken account of and it is also suggested that in the decision, the Employment Tribunal erred in law in failing to address this aspect of the matter on the face of the decision.[4]The decision of the Employment Tribunal is a long and detailed one and contains a careful analysis of the facts and it is unnecessary for us to repeat them at any length. The Appellant began work for the Respondents in 1990 and became in due course the Station Supervisor Multifunctional at the Greenford Station on the Central line. On 13 April 1997 there was an incident involving an altercation between the Appellant and another employee and both were issued with what bore the title of "a final caution" on its face. I quote the wording of it:
"You have been seen today regarding your performance as a Station Supervisor at North Acton, in that on 13 April 1997, you allowed yourself to get into an altercation with SS-MF Ali. This resulted in allegations being made by both parties of both verbal and physical assaults. This behaviour will not be tolerated by any London Underground members of staff. You are warned that if you become involved in any altercation with anyone be it a member of staff, customer or contractor within the next 12 months, you could be sent before a formal disciplinary hearing. The charge will be gross misconduct despite previous warnings. I must stress to you the seriousness of this issue. If you have any problems that are likely to cause you not to comply with this warning you should bring this to my attention."
[5]The Employment Tribunal when dealing with this went on:
"GSM Jessett has no power to issue a caution without a disciplinary hearing. He acknowledged in evidence to this Tribunal that this should been phrased as an oral warning; however, he did not want to send either of them to a disciplinary hearing he wanted to bring home to them the gravity of the incident. The (Appellant) and Mr Ali shook hands and sorted out their differences following this incident."
Whilst the title was a misnomer the essential two differences between an oral warning and a written warning are these: The first is procedural. There is not a formal disciplinary hearing where a Line Manager intends to issue an oral warning in an informal way. The second difference of course is that a formal hearing is a label given to either a more serious incident than one that attracts an oral warning, or else one that is subsequent to an earlier oral warning and therefore more serious because it is regarded as being part of a series of incidents. "You are hereby warned that any further incidences of this nature could result in more serious disciplinary action being taken." Gross Misconduct – as to the incident on 6 December – being involved in a violent and abusive confrontation with another employee, contrary to the code of conduct, "despite two previous warnings for such behaviour issued to you." Gross Misconduct – in failing to hand over station keys on that occasion when requested to do so. Gross Misconduct – Due to a failure to make regular contact with the Respondents and submit a correct residential or temporary address, during a period of absence on sick leave. "We have considered fully the brief and the evidence produced by both you and your advocate. It is clear from the responses you have given this afternoon that on many points you have failed to provide a truthful answer, which has been proven. We have great difficulty in believing any of the evidence you gave. On the first charge we find the case proven however it is not clear who instigated the confrontation. You have received warnings prior to this and for similar incidences and on the balance of probability have no doubt that you have had a confrontation with D S M Fleming that you played a significant part." They then find that the other two charges were found proved. The Appellant was then told that he would be summarily dismissed. There was an appeal, which was also dismissed. It appears that Mr Fleming was disciplined as a result of which he received a final caution. 16 (5) "GSM Drake was entitled to take into account the two previous warnings. He was entitled to take into account his finding that DSM Fleming was less blameworthy than the Applicant…DSM Fleming did not have a disciplinary record. He faced only one charge…there was no procedural or substantial unfairness in the decision to dismiss the (Appellant)." Two questions arise: Were the Respondents entitled to approach the disciplinary interview, which lead to dismissal, on the basis that there had been two previous warnings? Was the Employment Tribunal in error in concluding as a matter of law that there can be a fair dismissal, which takes into account earlier warnings that are procedurally flawed? The body of the April 1997 warning is clearly consistent with an oral warning and the essential criticism is that it bore the wrong label. But it was a warning that the Respondents were entitled to give and there was never any issue before the Employment Tribunal, as we understand it, that on their findings at the time the Respondents were not entitled to give an oral warning at least. It does appear that the mere existence of earlier warnings was sufficient for the Respondents at the time of dismissal, and they did not expressly take into account any erroneous view that there had been a formal written warning. Indeed it appears that it was recognised at that time that the form of the warning was in error. Accordingly it must follow that the decision to dismiss did not make the mistake of taking into account, a formal written warning. It appears that the arguments were clearly set out in the decision of the Employment Tribunal and in their finding they obviously had the matters well in mind, because they spoke about the procedure that was adopted in the passages to which we have referred. Not only was it dealt with in evidence, but the submissions of the parties in closing, clearly set out their respective positions on these very issues.