Appeal No.	 EAT/142/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR P DAWSON OBE

MR MARK POWER	APPELLANT

EIRAD MANAGEMENT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	JUDGE PETER CLARK:	This is an appeal by Mr Power, the Applicant before the Reading Employment Tribunal sitting on 3 November 1998 against that Tribunal’s decision promulgated with extended reasons on 12 November 1998 dismissing his complaints of unfair dismissal and unlawful racial discrimination.

The Facts
1	Prince Fahd Salmon, a member of the Saudi Royal Family, maintains homes in London and at Harewood House, Ascot, Berks, for times when he and his entourage are in this country.  Those properties and their staff are managed by the Respondent Company, formerly Chackope Ltd.  

2	The Appellant, who is of black Afro-Caribbean origin, commenced employment with the Respondent as a butler on 9 May 1995.  The household staff worked very long hours when the Prince was in residence.  There was a more relaxed regime when he was out of the country.

3	In about June 1997, the Tribunal found, the Appellant became involved in a heated discussion with a then employee called Ricky.  Both became agitated and angry.  The head of security, Mr Paul MacMillan, fearing that violence would erupt, intervened and separated the two men.  He sent the Appellant home to cool down.  The Appellant resumed his duties the following day without any disciplinary action then being taken.  

4	On the evening of 3 January 1998, the Prince was in residence at his Ascot home.  The Appellant was required to serve his guests at dinner.  On such occasions, Mr Hussein, a Director of the Respondent, took his meals with the Prince’s family and guests.  Mr Hussein thought that the Appellant was slow in his duties.  He reprimanded him and called him lazy.  The Appellant became angry at that and began to argue with Mr Hussein.  He swore at him and at one point rushed towards him with his arms outstretched.  He was restrained by another staff member.  The Appellant continued to shout at Mr Hussein who then left the room.

5	Prince Fahd was in occupation at the time although he did not witness the incident.  However, he heard the commotion and sent for Mr Hussein and enquired what had happened.  Thereafter Mr Hussein sent the Appellant home, telling him that he was suspended on full pay whilst he decided what action he was to take.  

6	On 21 January a meeting took place between the Appellant and Mr Hussein.  At that meeting the Appellant handed Mr Hussein a letter raising a grievance, in particular relating to Mr Hussein calling him lazy.  Mr Hussein indicated that he was minded to give the Appellant a written warning.  He reminded the Appellant of the incident with Ricky six months earlier.  The Appellant said he was not prepared to accept a written warning for his aggression towards Mr Hussein on 3 January.  He stated that he felt he could not continue to work for the Respondent in these circumstances.  Mr Hussein asked him if he wished to resign in which case he would be paid eight weeks salary.  The Appellant said he did not want to resign and never did so.  

7	On 23 January Mr Hussein handed the Appellant a written warning.  Any repetition of his behaviour of 3 January would lead to further disciplinary action including dismissal.  He was advised of his right of appeal and that the warning would remain on his record for 12 months.  The Appellant refused to sign a copy of the letter by way of acknowledgement.  That meeting took place on a Friday.  The Appellant was told to return to work on the Monday.  He did not do so and indeed never returned to work for the Respondent.

8	Correspondence then ensued between solicitors acting for the parties.  The Appellant indicated through his solicitors that he was not prepared to return to work until the written warming was withdrawn and expunged from his record.  Mr Hussein would not do so and on 8 April the Respondent’s solicitors wrote indicating unless he returned to work his employment would be terminated.  He did not return to work and was dismissed on 20 April 1998.  He was paid up to but not beyond 20 March 1998.  

The Tribunal Decision

9	The Tribunal found that the Appellant was dismissed by reason of his conduct, that is, refusing to obey a lawful and reasonable instruction to return to work.  

10	As to the question of reasonableness under section 98(4) of the Employment Rights Act 1996, the Tribunal found that the original warning in January 1998 was not of itself, a breach of contract by the Respondent and that they were entitled to require the Appellant to return to work.  When he refused to do so, they were entitled to warn him that continued refusal by him could lead to dismissal.  That is what happened and the Tribunal found that that was fair.  The Respondent acted reasonably in dismissing the Appellant.

11	As to the complaint of racial discrimination, the Tribunal could find no evidence to suggest that in disciplining and finally dismissing the Appellant the Respondent treated him in any less favourable way than they would treat another employee of a different racial origin.  That claim also failed.  

The Appeal
12	The alpha and omega of the appeal advanced by Mr Power before us today is that the Tribunal were wrong to reject his evidence and that of a witness called on his behalf in favour of the evidence given by three witnesses on behalf of the Respondent.  He says that Mr MacMillan fabricated the incident with Ricky in June 1997; that Mr Hussein gave an untruthful account of what happened on 3 January, and again of the disciplinary hearing which took place on 21 January.  He accepts that if the facts were as found by the Tribunal, then his dismissal was fair.  However, he urges us to intervene in this case in the interests of justice.  

13	We understand fully the sense of injustice felt by a party who believes that his account ought to have been accepted and his opponent’s rejected.  However, we have endeavoured to make clear that our jurisdiction is limited to interfering with Tribunal decisions only where an error of law is made out.  It is abundantly clear that this appeal is one of fact only.  In these circumstances, there is no arguable point of law to go forward to a full appeal hearing and accordingly, the appeal must be dismissed.