Appeal No.	 EAT/208/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 July 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR I EZEKIEL
MRS P TURNER OBE

MR D OLADELE	APPELLANT

THE ROYAL MARSDEN NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:   The appellant, Mr Oladele, was employed as an Administrative Assistant by the respondent in the Works Office of its Estates Management Department at the Royal Marsden Hospital from 13th November 1990 until 24th November 1993, on which date he was dismissed. He is black, of Nigerian racial origin.

	Following his dismissal he presented a complaint of both unfair dismissal and racial discrimination to the Central Office of Industrial Tribunals on 21st February 1994. A further complaint relating to “Trade Union membership” is not pursued.

	The complaints were originally heard and upheld by an Industrial Tribunal sitting at London (North) under the chairmanship of Mrs Enid Prevezer on 30th November 1994 and 10th March 1995. Against that decision, registered on 23rd March 1995, the respondent employer appealed to this appeal tribunal on. 8th July 1996, a division of the appeal tribunal, presided over by Judge Hull QC, allowed the employer’s appeal and remitted the whole matter to a fresh Industrial Tribunal for rehearing.

	The second Industrial Tribunal hearing took place at London (North) on 25th November 1996 before a tribunal chaired by Mr PRK Menon. For the reasons promulgated on 19th December 1996 that Industrial Tribunal dismissed both the appellant’s complaints. It is against that decision that Mr Oladele now appeals to us. This is a preliminary hearing, held to determine whether or not the appeal raises any arguable point or points of law to go forward to a full appeal hearing.

The Facts
These are set out in detail in paragraph 4 of the tribunal’s extended reasons. For the purposes of this judgment we propose to give a brief summary.

	Following earlier disciplinary proceedings culminating in a final written warning given to the appellant on 12th May 1993 by Mr Wellman, the Estate Manager, an incident occurred on 18th November 1993 involving both men. It was common ground that Mr Wellman asked the appellant to do some photocopying and the appellant refused. He contended that such work did not fall within his job description; the Industrial Tribunal found that it did. What happened next was very much in dispute. It was Mr Wellman’s account that the appellant then swore at him and kicked him from behind. The appellant accepted that there had been physical contact between them, but said it was accidental. Mr Wellman had stepped backwards and made contact with the appellant’s knee.

	An investigatory/disciplinary hearing took place before Mr Milton, Director of Estate Management, on 24th November 1993. In short he accepted Mr Wellman’s account, found that the appellant had assaulted him, and summarily dismissed the appellant for gross misconduct. 

	The appellant appealed unsuccessfully against his dismissal. That appeal was heard on 21st January 1994.

The Industrial Tribunal decision
Unfair dismissal
The tribunal found that the reason for dismissal related both to appellant’s conduct and capability. It found that the respondent carried out a sufficient investigation; that Mr Milton reached a permissible conclusion on the facts of the material incident in good faith; that there was no procedural unfairness and that in the circumstances dismissal fell within the band of reasonable responses. The dismissal was fair.

Race discrimination
The appellant’s main complaint was that Mr Wellman had repeatedly referred to him as a “boy”, which he contended was a racially derogatory expression. Mr Wellman said in evidence that he could not recollect using the term, but if he did he would have applied it to other employees, black and white.

	The tribunal considered this complaint, directing itself in accordance with the guidance contained in Neill LJ’s judgment in King v GB China Centre [1992] ICR 516. It noted that the appellant had raised no such complaint during the employment, in particular during a grievance raised by him in October 1992, nor at the final disciplinary stage, save for a fleeting reference to race discrimination at a disciplinary hearing before Mr Milton held on 12th May 1993. It concluded that his complaint was time-barred, and in any event was not prepared to draw an inference of racial discrimination. That complaint was accordingly also dismissed.

The Appeal
Mr Oladele appears before us in person today. He has chosen not to use the services of experienced Counsel, Mr Clayton, who was present in this Court today under the ELAAS scheme to provide pro bono representation. He was represented before the Industrial Tribunal by Counsel provided by his local law centre. He now applies for an adjournment of this preliminary hearing on the ground that he is prepared to argue his appeal on fact, but not on law. He now appreciates that our jurisdiction is limited to correcting errors of law.

	We refused his application for an adjournment. He has had, it seems to us, ample opportunity to take legal advice from the sources to which we have referred above in order that his appeal may be properly presented.

	As Mr Oladele foreshadowed in making that application, his attack on the tribunal’s decision, both as to unfair dismissal and racial discrimination is limited to factual matters which properly fell within the province of the Industrial Tribunal.

	We are bound to say that looking at the tribunal’s reasons objectively, we are ourselves unable to detect any error of law. In these circumstances we must dismiss the appeal.