Appeal No.	 EAT/729/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MS B SWITZER
MR T C THOMAS CBE

LONDON BOROUGH OF SOUTHWARK & OTHERS	APPELLANT

MR J ONIFADE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Ms G Bankole-Jones
(of Counsel)
Ms D Martin
London Borough of Southwark
Legal (Contract) Services Dept.
South House
30-32 Peckham Road
London SE5 8UB	

	JUDGE JOHN BYRT QC:		This is a preliminary hearing in relation to an appeal against a decision promulgated on 3 April 1998 made by London South Employment Tribunal, whereby they held that the employers had victimised Mr Onifade the employee, contrary to section 2 of the Race Relations Act 1976.   They rejected his claims that he had been discriminated against both in relation to racial and sexual matters.  They also rejected his claim that he had been unfairly selected for redundancy.  

	Quite shortly the facts are that Mr Onifade had been employed by the employers for a period of some five years.  In about June of 1995, there was an incidence involving himself, his line manager a Ms Fuller, and another lady called Miss King.  It appears he had absented himself without authorisation and it was alleged that he had also altered the signing out book in order to cover his tracks in that respect.  

	There was a confrontation immediately following upon his return to work when he was corrected about this.  Mr Onifade took the matter very seriously.  He got extremely angry at being corrected and as a result was rebuked by Miss King.  It seemed then as if matters were left to calm down.  In fact, in paragraph 28 of their decision, the Tribunal record that nothing untoward thereafter happened in July or August.  The protected act then occurred on 29 August when Mr Onifade apparently wrote a letter indicating that if certain events happened, he would reveal that Miss King had indicated certain teams, under her supervision, had practiced racial discrimination. Mr Onifade claims this allegation greatly hurt and angered Miss King.

	He says that, as a result, she mounted an investigation two days later into the events which had happened on 2 June.  The Tribunal accepted that causation was established between the protected act and victimisation namely, the launching of that investigation.

	In coming to that conclusion however, it would seem that the Tribunal may have overlooked a substantial body of evidence which went to prove the contrary.  It is arguable that there was evidence before the Tribunal to the effect that Miss King’s hurt and anger had been caused by something which had been said, not by the employee Mr Onifade, but by his trade union representative, and further that this incident had occurred on some totally different occasion wholly unrelated to the protected act.  

	Furthermore it is said that though the investigation, was announced by letter on 29 August, it had in fact been  initiated some appreciable time before 29 August.  There was evidence about this; it may well be that the Employment Tribunal rejected that evidence, but there is no indication in their reasons that they considered it before the rejection.

	We think that there are matters here to be further argued and considered at a full hearing of this appeal and our decision is that leave be given for this matter to proceed to a full hearing. Counsel for the London Borough of Southwark has listed ten points of appeal.  Mindful of one’s duty at this stage to limit if we can the points to those we deem arguable, we are of the view that the case should proceed on the notice of appeal as it stands because the points raised are all in one way or another linked to the issue of causation.