Appeal No.	EAT/1023/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR A D TUFFIN CBE
MRS R A VICKERS

MR A OKIJI	APPELLANT

HILTON INTERNATIONAL HOTELS (UK) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondents	MR J BENNETT
(Representative)	

	MR JUSTICE MORISON (PRESIDENT):	This an appeal against a decision of an Industrial Tribunal held at London (North) which concluded that the applicant, Mr Okiji, had not been unfairly dismissed by his former employers, Hilton International Hotels (UK) Ltd.

	Mr Okiji had presented a complaint of race discrimination and breach of contract in addition to his complaint of unfair dismissal. That application was filed following his dismissal on 10th May 1996 from his employment at the Kensington Hilton Hotel, as a storeman receiving clerk.

	The allegations of discrimination and breach of contract were abandoned and in due course the tribunal made an order for costs against Mr Okiji for having made those allegations. There is no appeal in relation to that order for costs.

	The respondents’ Notice of Appearance dealt with all the allegations which were then being made. In relation to the unfair dismissal aspect of it, they said this:

“On 30th April 1996 an inventory of stock was carried out within the store room, that inventory showed a discrepancy of 114 items. A subsequent investigation showed that a number of these items had not been recorded, whilst a number had been wrongly recorded. The consequence of these inaccuracies was that the true nature of the stocks within the store room could not be identified.
The Applicant was asked for an explanation of these discrepancies at a disciplinary meeting on 7th May, re-convened on 10th May. His explanations were not accepted and he was dismissed for reasons of conduct - specifically a wilful and negligent failure to carry out a fundamental requirement of his job by failing to complete stock control details. The final written warning issued in October 1995 was taken into account in reaching the decision to dismiss.
That decision was confirmed by letter dated 10th May 1996, a copy of which is appended to this Notice.”

	At the Industrial Tribunal both parties were represented. The applicant was represented by Counsel. The evidence for the applicant was contained in evidence from himself and from a former head storeman at the hotel. The respondents called the decision maker who was the then food and beverages controller.

	The facts as found by the Industrial Tribunal may be shortly summarised. The applicant commenced employment on 20th August 1990. As storeman he was responsible for the proper paperwork in relation to items coming in and leaving the store, so that a proper inventory could be kept. He worked during the day. During the night when he was not there, for various reasons which do not need to be gone into, other people had access to the stockroom. It should be said at once that there is no allegation made in this case that Mr Okiji has in any way been dishonest in relation to stock control matters or the goods which were within his custody. That is not what the employers were complaining of. There was no suggestion of it at the Industrial Tribunal. It seems to me that that should be made perfectly clear on any reference which Hilton Hotels may be asked to give in relation to this individual in the future.

	On 25th February 1994, he was adjudged not to have done his duties in a professional way and was given a first written warning on 2nd March 1994. He acknowledged receipt of that.

	On 21st and 29th December 1994 he attended a further disciplinary hearing. He was given a final written warning, but the employee exercised his right to appeal, which was unsuccessful at the first stage, but successful at the second stage when his appeal was heard by the hotel’s general manager who decided to remove the final written warning in the light of the improvement in the applicant’s standard of work.

	The applicant was seen again in relation to the performance of his duties in October 1995. On 17th October 1995 he was informed that he was given a final written warning for ignoring instructions to complete documentation. He was expressly informed that any further negligence or failure to follow instructions could render him liable to dismissal, and that this warning would be effective for 12 months. He appealed in relation to this warning, but was unsuccessful at both stages.

	Thereafter, the employers became concerned about the performance of his duties in relation to proper keeping of paperwork and maintaining a reliable inventory. He was interviewed in relation to it. He was dismissed following a disciplinary hearing. 

	The Industrial Tribunal preferred the evidence of the employers to that of the applicant wherever their evidence conflicted and concluded as follows:

“The tribunal cannot go behind what appears to have been a properly administered final written warning at this late stage. There was no duty on Mr Newton to investigate whether that warning had been properly administered. Mr Newton was entitled to take that final written warning into account at face value in reaching his decision to dismiss the Applicant. In the circumstances, bearing in mind the previous history of warnings to the Applicant for failure to perform his duties and Mr Newton’s memo to the Applicant dated 25 March 1996, the tribunal is unable to find that the decision to dismiss the Applicant was an unreasonable decision. It was not a decision which was outside the band of reasonable responses open to a reasonable employer faced with the facts of this case.”

	The Notice of Appeal was filed and then amended after the matter had been to the Employment Appeal Tribunal for a preliminary hearing. The skeleton argument which has been submitted on behalf of Mr Okiji we will deal with. Mr Okiji has indicated to the Employment Appeal Tribunal that he is not able to attend, but is prepared for us to deal with the matter in his absence, which we now do. 

	In paragraph 5 of the skeleton argument the point is made that the appellant, prior to the final warning, had received two warnings, but that the second of those was no longer a valid warning because his appeal against it had been upheld. Therefore, the argument is, that when the tribunal (in the paragraph which I have just quoted) referred to warnings in the plural prior to the final warning, they must have been taking into account the second warning which was now no longer extant as a result of the successful appeal. 

	It seems to us that that is placing far too much weight on the words of the tribunal decision. The employers case throughout was that they looked at the events in 1996 and took into account the fact that they were dealing with an employee who was subject to a final warning which was still in existence. As their IT3 made plain, they did take that into account in reaching their decision to dismiss. It was not their case that they also took into account the other two warnings, although obviously they had to take into account the personnel file of this individual and assess his culpability by having regard to the whole of his performance since he commenced his employment. The comment therefore that the tribunal make that “bearing in mind the previous history of warnings to the Applicant” the decision to dismiss was reasonable, was not targeted at the state of mind of the employer, which was the matter under investigation, but which was a comment which was intended to indicate, as we read it, that the employers were entitled, in fact obliged to take into account, the whole of the history of the employee’s employment before deciding whether to dismiss him or not. There is no indication that the employers took into account a warning which had been obliterated from his file as a result of his successful appeal.  

	It was pointed out during the course of argument that the Hilton Hotel Group should bear in mind that where there is a formal warnings process and a successful appeal, the employee should be left in no doubt that formally he is not any longer subject to the warning which was successfully appealed. It would be perfectly proper at the same time as notifying him that his appeal has succeeded, informally to counsel him to continue, for the future, his improved performance. But an employee should not be left in a position where he has successfully appealed his formal warning, but somehow or another is to be found to be subjected to an informal warning at one and the same time.

	The second main point which is made is that the Industrial Tribunal were wrong in their conclusion that there was no duty on the employer to investigate whether the final warning had been properly administered. 

	We think, as a proposition, that has no merit whatever. It is unsupported by authority. Indeed, it is contrary to authority. It seems to us to be manifestly clear that the employer takes the individual as he finds him, in terms of his employment history, at the date when he is deciding whether or not the individual should be dismissed. There may be circumstances where, at the dismissal procedure stage, something is raised by the employee to indicate that he thinks that the warning which is on his record for one reason or another was unlawful. In which case, an employer might well wish to investigate that allegation. But in this case the employee, as we understand the facts, never suggested until he presented his IT1 to the Industrial Tribunal, that the final warning had been put on his record as part of some kind of conspiracy to oust him because of his ethnic origin. That was the suggestion which was contained in his IT1, but was an allegation which was withdrawn by the applicant at the Industrial Tribunal. It seems to us that the tribunal were entitled to say that the employer in the case was under no duty to investigate whether the warning had been properly administered. The applicant had exercised his appellate rights in relation to it and had been unsuccessful. The dismissing officer was entitled to take the employee on the basis that he was subject to that warning and judge his culpability on that basis.

	It is said that the tribunal failed to investigate if the employer’s grounds for its belief in the appellant’s incapability were reasonable or not.

	With great respect, this is not a capability case at all. This case is and was always a case which related to the conduct of the appellant. It was not suggested that he was not capable of doing his job. The complaint was that, capable as he was, he was simply not doing it properly.

	Then it is said that the matter should be remitted to a differently constituted tribunal to be considered afresh. 

	Because we see no merit in any of the points raised in the skeleton argument or the grounds of appeal, we disagree. We think that this was a decision which the Industrial Tribunal, the fact-finding body, the industrial jury, was well entitled to make. Accordingly, the appeal will be dismissed.