Appeal No.	 EAT/1466/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 May 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J HODGKINS CB
MRS T A MARSLAND

MR D DE RIGGS	APPELLANT

DORCHESTER HOTEL LIMITED	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PITT-PAYNE
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

	THE HONOURABLE MR JUSTICE MORISON (PRESIDENT):	This is an appeal in the matter of Mr D De Riggs against the Dorchester Hotel Limited.  

	The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr De Riggs wishes to bring against the unanimous decision of an Employment Tribunal which dismissed his complaints of breach of contract and race discrimination.  The decision runs to some 18 typescript pages and was sent to the parties on 30 September 1998.  

	The brief facts are as follows: the Applicant is a young black Afro-Caribbean, aged 19 at the time of the events being considered by the Tribunal.  The Respondent, Dorchester Hotel Limited, (as the Tribunal says) a well known hotel in London.  It was the Applicant’s ambition to become employed as a bell boy in a smart West-End hotel.  He commenced his employment on 25 March 1996 and was the first black person to hold that particular position. He was given some induction training and was given a three month probationary period and was told that if need be it could be extended.

	He came to consider his holiday position in May of 1996 and booked himself aeroplane flights to and from Los Angeles for the period from 31 July to 22 August 1996, in other words a three week period.  In late May he asked the Manager for three week’s leave.  The Manager indicated that he could only have two week’s leave, although employees can have unpaid leave with the permission of their Head of Department but the Applicant never took it up or asked for it.

	In June of 1996, it was agreed in relation to another employee who was white that he would be given two week’s leave in August as he had made it clear at interview that he would not be able to work for the Dorchester if he was not permitted to take this leave.  The Applicant had an appraisal interview on 2 July.  It was not entirely satisfactory and it was suggested that he needed a further appraisal.  On 11 July he submitted a second application for his holidays and this showed that his first day of absence would be 31 July and his last day of absence would be 15 August, in other words a two week period, but added to the form “my holiday is booked for 31st July to 22nd July (meaning 22nd August) so I will get one of the lads to work a few days for me.”  That application was counter-signed by the Manager on 14 July.  

	On 30 July 1996, the Applicant was told that his holiday had been approved and the Applicant, as we understand it, should then have acquired cover for himself  for the period beyond 15 August, but failed to do so.  As a result of which when he did not turn up for work and there was nobody to cover for him, the employers became concerned and ultimately dismissed him.  The Tribunal was satisfied that the employers had taken into account the fact that the Applicant had already been refused three week’s leave but he appeared to ignore the earlier refusal and to put in a form which gave the appearance that he was asking for two week’s holiday, as that form indicated.  That was intentional and it was a serious breach combined with his actual failure to return from holiday on time.  

	As a matter of contract law, they were satisfied that the employers were entitled to bring the contract of employment to an end and that the Applicant not made out his case that the Respondent breached the contract with regard to the disciplinary hearing.  They reviewed the question of the probationary period and whether it was lawful to have it extended.  The Applicant had been alleging that it was not.  They came to the conclusion that it was, and they dismissed his complaint of race discrimination, effectively by looking at the cases with care and at each of the two comparators and distinguishing them from the Applicant’s case and accordingly finding that he had not been treated less favourably than anybody else.  

	In a conspicuously able argument, Mr Pitt-Payne has said that there are three points which he should take.  The first is that the Employment Tribunal never properly dealt with the conflicting submissions which were before the Tribunal, as to whether because he was a probationer he was entitled to the benefit of the disciplinary procedures in the contract or whether because he was a probationer he fell out with those procedures.  That was an issue between the parties which he suggests was never properly resolved.

	The second point that was taken is that the various findings of the Employment Tribunal were perverse.  Specifically, he took us to paragraph 25 of the decision which we have summarised relating to the application for holiday on 11 July 1996, and then to paragraphs 56 and 63.  He suggests that this indicates that the Tribunal was inconsistent with its approach to the issue of the holiday and was therefore perverse.

	The third point he took was that in the course of looking at the case, the Tribunal when reciting the history, found in paragraph 30 that a member of staff of the Dorchester had spoken to officers at the Grosvenor and found out that the Applicant had been dismissed for being absent without leave but no action was taken in respect of that.  So says Mr Pitt-Payne, that is somewhat suspicious.  This was before the Applicant had his holiday application approved and before he had gone on holiday.  That raised an enquiry as to why it was that the Dorchester was speaking to people at the Grosvenor about the reason why had been dismissed when as we understand it, he had not included within his application for employment form any reference to having worked at the Grosvenor.

	Despite the able submissions which have been made, we are unable to say that any of them raises an arguable point of law.  In relation to the third point, it seems to us that the Tribunal were not obliged to say anymore than they did in paragraph 30 of the decision.  No further enquiries were called for from them.

	In relation to the second point described by Counsel as perversity point, it does not seem to us that there is any inconsistency between what is said at paragraphs 25, 56 and 63.  

	In relation to the first point, that caused us more concern but it does seem to us that at paragraph 57 of the decision the Tribunal has indicated that they are satisfied that there was no breach of contract in relation to the disciplinary hearing.  It seems to us that there are no substantial grounds for believing that there has been any breach of procedure. Indeed on the facts of this case, it seems to us perfectly clear that what has happened is that as a young man the Appellant,  has put a higher priority on having his three week break than was appropriate, having regard to his ambitions to take up employment at this hotel.  Having got approval for a two week holiday and having indicated that he would come back after three weeks but would cover himself during the third week, it seems to us most unfortunate that he failed to obtain cover.  His explanation or excuse that he only got permission from his employers the day before is, we have to say, somewhat unconvincing.  If he was planning (as he had been for some time) to go on a trip which was going to keep him away for three weeks, it seems to us that he had ample opportunity to make arrangements for cover which would be needed in the event that his employers gave him the leave that he was seeking.  

	Accordingly, we consider that the outcome of this case was almost inevitable, having regard to all the circumstances.  It is a most unfortunate event because we have no doubt that the Applicant would have made a very good employee at a West-End hotel.  We all felt that it was unfortunate that he has somewhat put it beyond his reach to have that employment opportunity as a result of getting his priorities wrong.  Be that as it may, we are satisfied that this appeal does not disclose an arguable point of law and must be dismissed.