Appeal No EAT/1488/01/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 January 2003
                                                                                Judgment delivered on 17 February 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MR B BEYNON
MR P A GAMMON MBE

LONDON UNDERGROUND LTD	APPELLANT

1) MR A O FAMAKINWA 2) MS GORMALLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS KATIE GOLLOP
(Of Counsel)
Instructed by:
London Underground Limited
55 Broadway
London
SW1H OBD	
For the Respondent	MISS SUSAN DONS
(Of Counsel)
Instructed by:
Messrs Wedlake Saint
14 John Street
London
WC1N 2EB	

JUDGE J McMULLEN QC

1.	We now give reasons for the decision we announced on 13 January 2003. This case is about unfair dismissal and race discrimination.  It is an appeal by the Respondent in those proceedings against a decision of an Employment Tribunal sitting over 4 days in 2002 at London Central, Mrs E M Prevezer, Chairman, sent to parties on 25 October 2001 with extended reasons.  The parties were represented by the same Counsel as today.

2.	We will continue to refer to the parties as Applicant and Respondent.  The Applicant claimed sex and race discrimination and unfair dismissal.  The Respondent denied discrimination and that it acted unfairly in dismissing the Applicant.  The essential issues as defined by a previous Chairman at a directions hearing were identified as follows:

i.	Unfair dismissal: whether the Respondent dismissed the Applicant for a reason connected with conduct and whether it had acted fairly.

ii.	Sex discrimination: whether the Respondent or Ms Gormally (a Second Respondent) discriminated against the Applicant on the grounds of gender.  The Tribunal dismissed the Applicant’s claim of sex discrimination and having dismissed the Applicant’s claim against Ms Gormally dismissed her from the proceedings.

iii.	Race discrimination: whether the Respondent or Ms Gormally discriminated against the Applicant in relation to his dismissal; whether the Respondent discriminated against him in relation to a grievance brought by him; and whether the latter was out of time.

3.	Neither of the decisions in ii above was appealed.  The Tribunal found that the Respondent discriminated against the Applicant on the ground of race and he was unfairly dismissed. It awarded to him £30,823.83 in compensation for unfair dismissal and race discrimination.  The Appellant appeals on grounds that the decision by the Tribunal that the Applicant was treated less favourably on the grounds of race, that the dismissal was due to race and not conduct, and that the dismissal was not within the band of reasonable responses were internally contradictory alternatively perverse; that the finding that the dismissal was disproportionate was perverse; and that the Tribunal had approached the issue of a comparator erroneously.  The Employment Appeal Tribunal (Judge Levy QC and Members) on 25 June 2002 decided that the grounds were arguable and thus a full hearing had been conducted.  

4.	The Respondent is a rail undertaker and runs the Underground Railway System in London. The Applicant joined it in 1993 and in 1997 joined its Bakerloo Line as a revenue control inspector.  He was dismissed with effect from 7 November 2000. The Applicant is Nigerian.

5.	On 25-26 March 1999 a team building exercise was conducted by the Respondent for the Applicant and his team of 12 at its premises known as Flagstaff House.  The Tribunal found that on the first night all were drinking and playing games before they went to bed.  A colleague of the Applicant’s, Ms Gormally alleged that on reaching her bedroom the Applicant entered her room and assaulted her.  She protested, the Applicant left the room and she ran to the room of Mr Chowrimootoo.  She told him what had happened and then returned to her room an hour later.  Ms Gormally did not report the incident at any time before 27 June 2000.  She told the Tribunal that the Applicant was following her around but did not report that to anyone.  

6.	Whilst on leave in Nigeria on 4 January 2000 the Applicant was injured in a road traffic accident and hospitalised.  By 8 February 2000 he had made a full recovery and returned to the United Kingdom obtaining further sick certificates.  The employment relations team, with the Applicant’s relevant manager Ms Lloyd, visited him at home. The Applicant had had his sick pay stopped and when fit to return to work was given an attendance warning.  He lodged a grievance against Ms Lloyd which was dismissed by the relevant manager.  The Applicant made a complaint of workplace harassment against Ms Lloyd and following a meeting between the various parties the attendance warning issued to him was cancelled.  

7.	As a result Ms Lloyd requested that she did not work with the Applicant and when she told Ms Gormally and Mr Chowrimootoo of this Ms Gormally told her of the assault which she said took place at Flagstaff House 15 months earlier.  On 5 July 2000 she submitted a formal complaint.  The Applicant was suspended on full pay and fact finding interviews began.  The Applicant then complained of workplace harassment against Ms Lloyd, Ms Gormally and Mr Chowrimootoo.  The complaint was dismissed and the Applicant appealed against it.  The appeal was dismissed.  A disciplinary hearing relating to the Flagstaff House incident was conducted on 7 November 2000. The Applicant was dismissed and his appeal against that dismissal was rejected.  

8.	Evidence was adduced without objection that Ms Gormally had previously been found guilty of workplace harassment and the Applicant had been acquitted of indecent assault on a passenger.  Ms Gormally had received an oral warning for her role in harassing two co-workers who were engaged in a relationship having left their respective partners.  Ms Gormally sided with one of the partners.  After a full enquiry it was concluded that there had been harassment and breach of the workplace harassment policy by Ms Gormally.  The Applicant complained that there had been collusion between Ms Lloyd, Ms Gormally and Mr Chowrimootoo.  Management investigated this matter and found no evidence.  The manager who heard the complaint against Ms Gormally was Mr Henbury.  In due course he heard the complaint against the Applicant.  Mr Henbury had taken advice on a question of whether it was right for him to be chairman of the disciplinary panel.  The panel included Ms Knight.  This panel dismissed the Applicant.  

9.	The Tribunal found that the reason for dismissal was ostensibly connected with the Applicant’s conduct.  It held that the Respondent carried out a full investigation and believed the incident alleged had taken place, citing Burchell v British Home Stores Ltd [1980] ICR 303.  It found that the officer who had interviewed various persons had come to the conclusion that the incident alleged by Ms Gormally had taken place.  The dismissing officer, Mr Henbury also came to that conclusion and that this amounted to gross misconduct and thus the proper sanction was dismissal.  The Tribunal recorded this:
 
“During the course of the hearing the Applicant’s Counsel seemed to agree that if it was gross misconduct dismissal was the correct sanction.  However this Tribunal does not believe, taking all the circumstances into consideration, that this was a reasonable sanction bearing in mind what had happened.”

10.	It went on to say that dismissal was a sanction out of all proportion to the circumstances.  It found that some incident occurred but that the dismissal was disproportionate to the offence.  It found that the Respondent made a proper investigation and reasonably believed the act complained of had taken place.  Nevertheless it held the dismissal was unfair.  It seems to follow that the Tribunal held that the Respondent discharged the onus of proof under Section 98(2) to prove that the reason was a potentially fair reason ie conduct.  

11.	That being so, it is inconsistent for it to have found that the dismissal was on the ground of the Applicant’s race. Notwithstanding the Tribunal’s use of the word ‘ostensibly’ the Tribunal appears to have applied the three steps required in Burchell but found that the appropriate sanction of dismissal for the assault on Ms Gormally was unreasonable.  The essential finding appears to be that ‘the alleged event took place after an evening of jollity and drinking and had not been reported’.  The Tribunal noted that ‘the incident had taken place a long time before it was reported’.  But in our judgment neither of these ought to reflect on the reasonableness of the Respondent’s response.  As we have said, the Tribunal upheld Mr Henbury’s judgment that the incident had occurred, and thus displaced any suggestion that having heard the Gormally proceedings he acted unfairly in relation to the index proceedings. The Tribunal did not qualify the Henbury finding in any way. It noted that the investigation took place immediately after the incident was reported. It then substituted its view for that of the Respondent about the seriousness of an assault on a female employee alone in her room on a management training course.  Dismissal for that reason cannot be said to be beyond the band of responses of a reasonable employer.  We therefore uphold this ground of the appeal and hold that the dismissal was not unfair.

12.	The Tribunal then went to consider whether the decision to dismiss the Applicant was race discrimination.  The Tribunal said this:

“We conclude that we can draw an inference that the dismissal occurred following the Applicant’s car crash in Nigeria and because he was Nigerian.  The way that he was treated regarding his sick pay and the insistence of Ms Lloyd on the proper procedures regarding sick certificates being followed, her insistence on a home visit and the reason she insisted on an Occupational Health visit, in addition, the way that she treated him in relation to the sick pay and the absence warning, all point to the fact that we can draw an inference that the reason she behaved like this was that she did not truly believe that he had had a car crash and was sick in Nigeria, and this was because he was Nigerian.”

13.	Those findings, of course, shed light on the action of Ms Lloyd.  But we accept the submission made on behalf of the Respondent that there is no connection between Ms Lloyd and the dismissal.  Ms Lloyd left in June 2000.  It will be seen that the findings are entirely in respect of Ms Lloyd.  The fact finding inquiry set up after 5 July conducted by Mr Dyson involved interviewing Ms Lloyd.  The Applicant denied the Flagstaff House incident took place.  Mr Allan, the Applicant’s manager, also knew of Ms Gormally’s complaint.  The Tribunal made no specific finding about Mr Dyson’s investigation but we assume that that fell within the blessing given by the Tribunal’s finding that ‘we accept that they have made a proper investigation’ (reasons paragraph 16).  In any event those findings must have been available to Mr Henbury’s panel. 

14.	Separately, it will be recalled, the Applicant complained of workplace harassment against Ms Lloyd, Ms Gormally and Mr Chowrimootoo arising out of those matters and alleged that they had colluded to make allegations against him.  This was investigated by Mr Proffitt.  The Applicant’s allegations were found to be without foundation. On appeal to Mr Farrow, no evidence was found to suggest that Mr Proffitt’s investigation was not thorough or that his findings were unreasonable.  We assume therefore that Mr Proffitt’s investigation falls within the blessing we have cited and Mr Farrow’s judgment falls within the holding that ‘they … reasonably believed that the act complained of had occurred’.  That explains why the Tribunal focussed on Ms Lloyd, the other two alleged conspirators having been dismissed from the plot.  

15.	It is rare for us to be justified in intervening on a question of causation.  But since Ms Lloyd left the organisation before the two investigations cited above, and played no part in the decision of the Henbury panel to dismiss the Applicant, there was no basis upon which the Tribunal could make the above cited conclusion.  On the findings the Tribunal made about Ms Lloyd’s approach to the investigation of the Applicant’s absence in Nigeria, there is nothing to connect that approach with the decision of the Henbury panel six months later to dismiss the Applicant for the assault on Ms Gormally.  Indeed, the logic we have attempted to set out above appears to have occurred to the Tribunal.  It dismissed Ms Gormally from the proceedings because ‘we find she was not responsible for dismissing the Applicant’.  That must be the case with Ms Lloyd, too.  

16.	On the other hand, that finding about Ms Lloyd might be thought to be relevant to the Applicant’s complaint about his treatment apart from his dismissal.  For the purposes of this part of his claim, the Applicant held out Ms Gormally as a comparator.  In early 2000 she had been absent from work due to sickness and returned to light duties.  She did not have a home visit from her team leader although she did make a visit to the Occupational Health Officer.  The Applicant alleged that he had been treated differently during his sickness from the treatment given to Ms Gormally who was white and female.  The allegation of sex discrimination was dismissed and has not been appealed.  

17.	As the Tribunal made clear in its recital of the issues, it had to decide whether the Applicant’s race discrimination claim was out of time.  The Tribunal said this:

“The Applicant argued that this was a continuing act of discrimination, and referred us to Barclays Bank Plc -v- Kapoor [1991] ICR 208.  We conclude that the acts that were complained of were discrete acts occurring over a period of time and therefore the earlier acts are not acts that can be separate acts of discrimination as they occurred more than three months before the presentation of the IT1.”

The word ‘this’ refers to the dismissal.  It is unclear from the passage we have cited whether the Tribunal was deciding that the complaint of discriminatory treatment in relation to his absence as compared with Ms Gormally was within time.  The ‘acts’ appear to include the grievance for the Tribunal went on to say (reasons paragraph 12):

“The acts that he complained of regarding the grievance brought in March 2000 and the time warning which was later resolved were outside the three-month time limit set out in Section 68 of the Race Relations Act 1976 and we have regarded them as background leading to the ultimate dismissal of the Applicant in September 2000.”

Putting those two citations together, it seems that the Tribunal was declining jurisdiction to hear the Applicant’s complaint of direct discrimination earlier in 2000 in relation to his absence in Nigeria, but treating the matter as one of background to the principal complaints of unfair dismissal and race discrimination in the form of dismissal on 7 November 2000.

18.	Turning then to that complaint, the Tribunal referred to the relevant authorities King v Great Britain-China Centre Ltd [1992] ICR 516 and Glasgow City Council v Zafar [1998] ICR 120. It considered whether it could draw inferences.  It said this:

“In this case there was a difference in race and the explanation given by the Respondents the Tribunal considered to be inadequate and unsatisfactory on the grounds that Ms Gormally had not been treated in the same way and dismissed when she had committed an act of gross misconduct.”

It was submitted on behalf of the Respondent that this is not a true comparison.  The case against the Applicant was that he had committed an assault at night on a female employee in her own room on company premises.  He physically overpowered her.  He took hold of her.  He put his hand on his private parts.  He made suggestive remarks.  The victim was put in fear and went for support to another member of staff.  The case against Ms Gormally was that she harassed a male and a female who were in a relationship. Mr Henbury said this deserved the lowest level of sanction and contrasted that with the sanction of dismissal against the Applicant.  

19.	We accept the submission that there is no comparison between the circumstances of the two cases and therefore the Tribunal had no basis upon which it could draw an inference of discriminatory treatment on the grounds of race.  The differential treatment of the two cases was due to the different circumstances in each case. The Tribunal found that the treatment was not due to a difference of gender. In our judgment it could not be not due to the difference of race either. The Tribunal made an impermissible comparison since the circumstances in the two cases were materially different. It therefore misapplied Race Relations Act 1976 section 3(4).  This ground of appeal is allowed.

20.	We will allow the appeal and set aside the decision of the Employment Tribunal.  We will substitute a decision that the Respondent did not discriminate against the Applicant on the ground of race and did not unfairly dismiss him.  The award of compensation falls with it.