Employment

Employee refused short leave of absence to consult adviser regarding pending racial discrimination claim against employer - summary dismissal for taking unauthorised leave - employee victimised because employees ordinarily granted short leave on notice without examination of reasonsBrown v TNT Worldwide Express (UK) Ltd: CA (Peter Gibson and Mantell LJJ and Sumner J): 4 April 2000

The employee brought a complaint of racial discrimination against his employer.

He requested short leave of absence to consult an adviser prior to the employment tribunal hearing.

The request was refused but he absented himself to keep the appointment.The hearing opened and was adjourned.

The employer subsequently revived disciplinary proceedings against the employee and was summarily dismissed him for taking unauthorised leave.

When the employment tribunal hearing resumed the employee amended his claim to include victimisation and unfair dismissal.The tribunal found that he had been victimised because he had been refused leave and that his dismissal was unfair.

The Employment Appeal Tribunal dismissed the employer's appeal.

The employer appealed.Paul Nicholls (instructed by Hewitson Becke & Shaw, Cambridge) for the employer.Clive Sheldon (instructed by Ironsides, Leicester) for the employee.Held, dismissing the appeal, that, in order to determine whether an employee had been victimised by being less favourably treated than a relevant comparator, the comparator was to be identified by looking at what had been requested (not the reason why the request had been refused), asking how that request would normally be treated and then comparing that normal treatment with the treatment afforded the applicant; that the tribunal had correctly considered the comparator to be a person seeking leave of absence and had found that ordinarily employees giving at least a day's notice were permitted time off without considering the reason for seeking leave; and that, accordingly, the employee had been victimised when refused time off and his dismissal had been an act of victimisation and unfair.