Appeal No.	 EAT/260/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MRS T A MARSLAND
MR R H PHIPPS

MR E NKWO	APPELLANT

PRUDENTIAL ASSURANCE COMPANY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	DR E EZE
(Legal Representative)
African Advisory Committee
New Ages House
2 Drayton Park
London N5	

	JUDGE D M LEVY QC:     Mr E. Nkwo appeals against a decision of an Industrial Tribunal held at London (North) on 2 and 3 December 1996, when the Tribunal unanimously decided that he had been fairly dismissed from his employment with Prudential Assurance Company Ltd (“the Company”).  The Tribunal further decided that he had not been discriminated against within the provisions of the Race Relations Act 1976.

	Briefly the facts are that Mr Nkwo was working for the Company from 12 October 1992 to 19 December 1995 when he was, according to the Company, dismissed for misconduct.  He said that there was an unfair dismissal and claimed holiday allowance and he also claimed, in an Originating Application received by an Industrial Tribunal on 4 March 1996, that his dismissal was due to racial discrimination.

	At a hearing which took two days his complaints were investigated at length.  He had the advantage of being represented by Dr E. Eze, a non-practising Barrister who is on the African Advisory Committee.  Dr Eze also represented Mr Nkwo before us this morning.

	The nub of Dr Eze’s submissions is that event which occurred both before and at the disciplinary hearing of the Company should have led the Industrial Tribunal to reach a different conclusion.  The investigation by the Company was such that, as the Tribunal found, “best practices” were not followed.  The hearing before the disciplinary council Dr Eze said, was also flawed in such a way that no one could consider the dismissal to have been fair.  In our judgment the problem for Dr Eze and for his client is this.  There was a hearing two days before the Industrial Tribunal where matters were very fully investigated.  They found that “best practice” was not followed, but they then say in paragraph 3 of their Extended Reasons:

“The disciplinary hearing held on 19 December took place over a period of 5½ hours of which 4 hours were counted as hearing hours.  At that hearing the Applicant was represented by his trade union and a very thorough inquiry was conducted by Mr Mulley into Mr Nkwo’s explanations, set out in his letter of 6 December are made available to Mr Mulley on the disciplinary hearing day.  Mr Mulley’s evidence to the Tribunal was that he did make enquiries of Mr Jarvis, Mr Kenway and Mr Cook and that in his own mind he was satisfied that the branch had had no problems anywhere else with funds going missing, that those 3 employees had handled other remittances handed in by Mr Nkwo and that he did not believe that they would have been involved in any misappropriation of funds.”

	Having looked in the disciplinary process and what happened, this is what the Industrial Tribunal said in paragraph 4:

“We have come to the conclusion that the disciplinary hearing was a properly conducted disciplinary hearing and that in the course of it Mr Nkwo had a full opportunity to state his case.  We are therefore of the view that although the investigative process did not match what we would regard as ‘best practice’ [they then give some particulars].  We have come to the conclusion that as a result of the investigation and the disciplinary hearing the Respondents had sufficient reason to believe that gross misconduct had occurred and that the decision taken by Mr Mulley to dismiss the Applicant was a proper decision for him to make.  There had been an admission by Mr Nkwo that he had failed to comply with a number of Company procedures, and he was unable to give any explanation about the high number of non-remittances [and they give other reasons].  

	Further in the Extended Reasons the Industrial Tribunal properly set out the test which the members have to make where gross misconduct is alleged and they, having set out the correct test the Tribunal makes its findings.  In our judgment, the reasons of the Industrial Tribunal show that account was taken of matters properly finding for consideration thus findings are made which the members were entitled to make to reach the conclusion that the dismissal of Mr Nkwo was not unfair.

	As to the racial discrimination claim, Dr Eze has put in the Notice of Appeal which he drafted and in the skeleton argument which he has addressed to us, a number of matters which he says make this case a clear case of racial discrimination.  These are arguments which were put forward, as appears from paragraph 8 of the Extended Reasons, before the Industrial Tribunal.  This paragraph reads:

“The argument put forward on behalf of the Applicant by his representative was that his managers were envious of his academic qualifications and were afraid that they would be displaced by him and that therefore they were motivated to get rid of him.  We believe the reality to be quite different.  Mr Nkwo had up until October 1995 been a very successful sales representative for the Prudential and within that organisation the remuneration paid to his sales manager and to his general manager would have been influenced by his own performance.  There was evidence submitted to the Tribunal that they had been extremely satisfied with his performance and that he had been given the opportunity to improve his qualifications and his position within the Company.  We find no evidence of direct discrimination, we find no evidence on which we could begin to draw any inferences that there was race discrimination, and we have to record that we find the Applicant’s explanation for his treatment to be far-fetched and to have no merit.”

	These were conclusions reached by the Tribunal after hearing evidence and seeing and appraising the witnesses from whom they heard evidence.  The Tribunal was entitled to find the facts found and in no way does there appear to be a misdirection of law or any error in the findings of fact which can be successfully challenged.

	In our judgment this appeal has no hope of success.  We thank Dr Eze for the assistance he has given us this morning, but it is our duty to dismiss this appeal at this stage.