Appeal No.	 EAT/0852/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 June 2002

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MS G MILLS
MISS D WHITTINGHAM

MR E OYEWOLE	APPELLANT

CAPITAL CITYBUS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS M BUTLER
(of Counsel)
Messrs Liberty
Solicitors
85 Kingsland Road
Shoreditch
London
E2 8AG	
For the Respondent	MR I MACCABE
(of Counsel)
Messrs Moorhead James
Solicitors
21 Fetter Lane
London
EC4A 1AW	

THE HONOURABLE MR JUSTICE MAURICE KAY

1	This is an appeal from the decision of an Employment Tribunal which sat at Stratford on 25 April 2000.  The Appellant was a bus driver employed by the Respondent company.  The decision of the Employment Tribunal was that his complaint that he had been unfairly dismissed was not well founded and that his complaint that he was discriminated against on grounds of race was not well founded either.  The Employment Tribunal dismissed both those claims and also a claim for damages for breach of contract.  The Appellant now appeals against that decision.  The issues raised in the appeal fall under two heads, namely the unfair dismissal claim and the race discrimination claim.  

2	For the facts of the case we immediately resort to the findings of the Employment Tribunal and summarise the position from those findings.  The Appellant is a black male of African origin who was employed by the Respondents as a bus driver from 25 May 1990.  On 
6 July 1998 he was given a final written warning to stay in place for two years for:

“poor driving standards which were brought to light by a DSA report and several public complaints.”

The DSA is the Driving Standards Agency.  There had been a disciplinary procedure in July 1998 resulting in that final written warning.  It had been conducted by Mr Bainbridge, who was later to become Operations Manager.  He assumed that latter role in October 1998.  It seems that in the summer of 1998 he was Network Supervisor or something of the sort.  The Appellant submitted an appeal against that final written warning.  It was received by the Respondents on 15 July 1998.  There is some dispute about whether that was in time under the Respondent’s procedures.  Whether it was or not, the reality is that the appeal was never dealt with.  

3	The events that gave rise to the decision of the Employment Tribunal with which we are concerned did not arise directly out of the disciplinary procedure of July 1998 but out of a subsequent incident on 24 March 1999.  On that occasion the Appellant and some other drivers, who are white, were at the Atlanta Boulevard Bus Terminal.  There is a rest room there for drivers.  The premises are owned, not by the Respondents, but by London Transport.  Historically smoking had been allowed on the premises, but sometime shortly before 24 March, London Transport decided on a policy of banning smoking from all their premises and erected No Smoking signs within such premises.  The Appellant has a strong aversion to smoking, as was known to his fellow drivers, and indeed, to Mr Bainbridge.  On 24 March the Appellant was in the rest room during his lunch break.  There were five white employees in the same room at the same time.  One, Mr Ley, came in and lit the stub end of a small cigar.  The Appellant who was sitting nearby remonstrated with him and became angry.  Mr Lay eventually stood on his chair and blew smoke out of a neighbouring window and stubbed his cigar out.  He did not completely extinguish it and it remained partially lighted.  The Appellant noticed this and became increasing angry.  He got out of his seat, threw his cap towards Mr Ley, striking him on the knee.  He then kicked his table towards the table occupied by Mr Ley and another driver.  The distance between them was some two or three feet.  It struck the other driver lightly against his knee and elbow but did not cause him injury or pain.  Another driver attempted to intervene and asked the Appellant to calm down.  That driver’s name was Mr Norrington.  The Appellant continued to be extremely angry and accused the other drivers of being against him because of his colour.  Mr Norrington told him to shut up and sit down.  The Appellant turned on Mr Norrington and called him a “white cunt” and a “fucking bastard”.  Tempers thereafter cooled and the incident came to an end.  However, it all came to the notice of Mr Bainbridge, it seems, because Mr Norrington complained about the racist tone of the remarks that had been made to himself.  

4	Mr Bainbridge then conducted an investigation.  The drivers who had been present were asked to make statements and they did so.  When he read them, Mr Bainbridge decided to hold a disciplinary investigation.  This was done on 30 March.  The Appellant was informed that the purpose was to discuss “threatening behaviour”.  At the hearing on 30 March, the Appellant denied all the allegations and said that he had been upset about the smoking.  He said that he wished to call a witness, a Mr Sefton.  Mr Bainbridge adjourned the hearing until the following day to enable him to do so.  It seems that the Appellant approached Mr Sefton on the night of 30 March and Mr Sefton consequently prepared a statement which he left in an envelope with one of the supervisors on the morning of 1 April.  Later that morning, when Mr Bainbridge attended the office, the supervisor handed the letter to him.  Mr Bainbridge took it with a view to handing it on to the Appellant before the resumed hearing.  At the Employment Tribunal it was the Appellant’s case that Mr Bainbridge had at least opened the letter.  It was further suggested that he had thereafter approached Mr Sefton with a view to withdrawing his statement and preparing a further statement more favourable to the Respondents.  In the event the Employment Tribunal rejected the Appellant’s allegations of irregularity and impropriety in that regard and said that it could find no evidence whatsoever that the letter had been opened, let alone tampered with.  There was no evidence that Mr Sefton had been influenced in making it.  

5	The hearing before Mr Bainbridge resumed.  The Appellant put in Mr Sefton’s letter as part of his case.  Upon reading it, Mr Bainbridge observed that the statement substantially supported the evidence which the other drivers had already given.  However, the Appellant continued to deny kicking the table, throwing his cap or being abusive towards Mr Norrington.  Mr Bainbridge made a finding of fact that the evidence of the other drivers was correct and that the Appellant had indeed kicked the table, thrown his cap at Mr Ley and used abusive words towards Mr Norrington.  He decided that these actions constituted gross misconduct.  In this connection he had regard to the company handbook which defined gross misconduct, by way of examples, as including “fighting or assault (threatened or otherwise) and harassment of colleagues or members of the public on the grounds of sex, race or disability.”  Mr Bainbridge concluded that there had been a threatened assault, both in connection with the table and the cap, and by the generally aggressive manner of the Applicant and the abusive words that he had uttered.  He also found that the words “white cunt” used to Mr Norrington constituted racial harassment of a colleague.  He took into account the final warning that had been issued in July 1998 and concluded that the appropriate course was summary dismissal.  In due course the Appellant lodged an internal appeal against this decision but, on advice, later withdrew that appeal.  That is the factual background to the case.  

6	We turn first to the complaint of unfair dismissal.  For purposes of the present appeal the unfairness alleged by the Appellant was that the Respondent had not carried out a fair and reasonable investigation, and, in connection with that, had not behaved fairly and reasonably in imposing the sanction of dismissal.  The case was put on the basis of the third limb of the test in British Homes Stores Ltd v Burchell [1978] IRLR 379 as amplified by more recent authority.  The essence of the complaint was that it was contrary to the third limb in Burchell for Mr Bainbridge to have included amongst his considerations the final written warning from 6 July 1998.  It was suggested, on behalf of the Appellant, that that final written warning was procedurally flawed.  There was an admitted flaw in the sense that Mr Bainbridge had not maintained a written record of that disciplinary proceeding.  There was also the question of the unresolved appeal, if indeed it had been properly instituted.  On behalf of the Appellant, Miss Butler submits to this Appeal Tribunal, that it was a legal error on the part of the Employment Tribunal to acquiesce in Mr Bainbridge’s consideration of that final warning in these circumstances.

7	In our judgment that is a point without merit.  As we have related, the information which had led to the final written warning had emanated from complaints from members of the public and a report from the Driving Standards Agency.  On any basis, the employer, as a public service vehicle operator, had been bound to take those complaints very seriously, even though the Appellant had denied the allegations or had sought to explain them away.  Even though there was at least one procedural flaw, and even though there was a degree of obscurity as to why the appeal had not been processed, we take the view that the Employment Tribunal was entirely correct to find it reasonable that Mr Bainbridge should have included consideration of that final written warning, in his determination which led to the dismissal.  One only has to consider a hypothetical situation.  If the second disciplinary matter had not been related to an altercation between working colleagues but had also related to allegations of poor driving, it could not possibly, or seriously be suggested that the earlier final written warning should be ignored simply because of one or more procedural flaws if the facts which had given rise to that previous final written warning were arrived at through a process such as public complaints and a report of a body such as the Driving Standards Agency.  We see no difference between that and the present circumstances.  A flaw, or flaws, there may have been but that does not mean that the entire procedure was a nullity, or that the final written warning to which it had given rise had been inappropriate on the merits.  In the present case, the Employment Tribunal took upon itself the task of adverting to that issue, perhaps because it was conscious of the procedural flaw or flaws.  It concluded:

“Having seen the report which gave rise to this complaint we find that this disciplinary step was entirely justified.”

That seems to us to have been an appropriate exercise for the Employment Tribunal to carry out.  It also seems to us it carried it out entirely properly, reaching a tenable conclusion upon it.  In all those circumstances, we find nothing in the ground of appeal based on the complaint that there was a legal error on the part of the Employment Tribunal in accepting the relevance of the earlier final written warning. 

8	Miss Butler seeks to advance a second submission in relation to unfair dismissal.  She focuses on the requirements of Section 98(4) of the Employment Rights Act 1996 and the provision that:

“… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
	(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
	(b)	shall be determined in accordance with equity and the substantial merits of the case.”

Her complaint, again, is to the effect that the incident was not thoroughly investigated.  Again, she relies on the third limb of the Burchell test.  This time she focuses on the statement of Mr Sefton and the way in which it came into the case.  On the findings of fact made by the Tribunal (which are unassailable) the conspiracy theory that was being advanced by or on behalf of the Appellant was found to be wholly wrong.  What Miss Butler says, is that in view of the circumstances, Mr Bainbridge, in order to carry out an investigation which would comply with the third limb of Burchell, ought to have ensured that Mr Sefton attended for cross-examination.  We can see no force in that whatsoever.  The Employment Tribunal was entirely satisfied that the document purporting to have come from Mr Sefton did in fact come from Mr Sefton.  It had not been tampered with.  Mr Bainbridge had not sought properly to influence Mr Sefton in relation to it.  It was no doubt a matter of disappointment to the Appellant that, in the event, the statement turned out to undermine his case rather than advance it, but it does not seem to us that that is a reason for imposing upon Mr Bainbridge, and after that criticising the Employment Tribunal, for not requiring the attendance of Mr Sefton for cross-examination.

9	Finally, in relation to unfair dismissal, Miss Butler floats a point, which appears to us to have been floated for the first time before the Employment Appeal Tribunal on the Preliminary Hearing, to the effect that Mr Bainbridge did not have authority to issue the final written warning of July 1998 on the basis that he did not become Operations Manager until some months after that.  On this, and a number of other points, we are invited by Mr MacCabe to give short shrift on the technical basis that it was not, and is not, properly before the Employment Tribunal, having formed no part of the Notice of Appeal.  We prefer not to deal with it on that narrow technical basis.  We prefer to deal with it head on.  It is, in our judgment, another point without merit.  The Respondent’s procedures expressly provide that any company official may conduct a disciplinary hearing, and that generally the nature of the alleged offence will determine the conducting official.  If, as we are now told, Mr Bainbridge was Network Supervisor at that time in the Dagenham depot, we do not consider that he would have lacked authority to investigate the matter or to issue the final written warning.  It follows from what we have said so far that all the grounds of appeal in relation to unfair dismissal are, in our judgment, without foundation and substance.  Accordingly, they will be dismissed.

10	We turn now to the question of race discrimination.  It is apparent from the text of the decision of the Employment Tribunal that the way in which race discrimination was being put on behalf of the Appellant was that there had been a conspiracy between the drivers and Mr Bainbridge in order to secure his dismissal, and that it was racially motivated.  In addition, it was being put on his behalf that Mr Bainbridge had made a number of racially orientated remarks during the course of the Appellant’s employment.  So far as those aspects of the case are concerned, the Employment Tribunal found facts which were wholly at variance with what the Appellant was saying.  In short, they rejected the factual basis upon which racial discrimination was being put on those two bases.  

11	Nevertheless, the Employment Tribunal, mindful of the fact that the Dagenham depot was staffed mainly by people of white racial origin and that there were comparatively few individuals there of black African origin, proceeded to look at all the evidence very carefully to assess whether in fact there had been any discrimination on the grounds of race.  They, no doubt, included in that consideration, evidence which had been considered primarily in the context of the unfair dismissal complaint.  One of the aspects of the way in which the Appellant’s case had been put in that regard was that it was unfair to dismiss him when he had been seeking to uphold the No Smoking policy, whereas Mr Ley was not subjected to a disciplinary procedure and was simply given a verbal warning.  It had been suggested that that alleged disparity pointed to unfairness in the dismissal.  No doubt, that was considered in the context of the assessment of the race discrimination case when it was looked at in the round towards the end of the decision.  The Employment Tribunal concluded:

“…we cannot find any indication whatever that the Respondents or any of their employees did treat the Applicant less favourably on the grounds of his race.  We also find that we cannot accept the evidence of the Applicant about these remarks.  We find that they were not made.  We accordingly dismiss his complaint under the Race Relations Act.”

12	The submission of Miss Butler to this Tribunal (she not having appeared in the Employment Tribunal) is to the effect that there was a difference in treatment as between the Appellant and Mr Ley, that it called for an explanation and that, in the light of any explanation that was or was not given, it was appropriate for the Employment Tribunal to draw an inference of discrimination.  The answer of Mr MacCabe, who also did not appear in the Employment Tribunal, is that that is a misconceived exercise in these circumstances because it is not comparing like with like.  The Appellant was being dismissed for gross misconduct in the form of threatened assault and racial harassment of Mr Norrington and this was taking place against the background of his final written warning.  Mr Ley, on the other hand, was being disciplined by way of verbal warning for disobeying the recently introduced No Smoking policy.  Mr MacCabe submits that these are not comparable situations.  We agree with that submission.  

13	Whilst Miss Butler has attempted resolutely to build up the case against Mr Ley by referring to health and safety implications, it seems to us, that that was not an appropriate exercise in all the circumstances of this particular case.  It follows from what we have said about this that our conclusion is that there is nothing in the appeal against the dismissal of the race discrimination case.  That part of the appeal will also be dismissed.