Appeal No.	 EAT/401/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2000

Before
MR RECORDER BRIAN LANGSTAFF QC
MR A E R MANNERS
MR R SANDERSON OBE

MR S KHAN	APPELLANT

McDONALDS RESTAURANTS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	MR RECORD LANGSTAFF QC:		Mr Khan has not appeared to pursue the appeal. That this would happen was intimated, to us. We have, in fairness to his appeal, to consider what step we should take.

1.	The facts are these. Mr Khan was employed by McDonalds from 2nd November 1994 and became assistant manager at a branch of McDonalds in Oxford Street. There was a procedure by which he had to handle cash which required him to put cash bags from a cashier into a safe which was to be accessed only by Securicor and by management in order to extract the completed cash bags to be taken off for banking. One cash bag, which the evidence suggested may have been handed to the appellant, did not find its way into the bottom part of the safe so as to be taken away for banking and the question thus arose in the employer’s mind as to who it was that was responsible for the cash deficiency.

2.	Mr Khan was called to a disciplinary meeting on 14th April 1999 that confirmed an earlier decision, which had been taken to dismiss him. He exercised his right to appeal. That appeal came before a Mr Dougan. He was satisfied with explanations regarding one of two bags, about which there were queries, and in respect of the other believed that the appellant had clearly failed in his duty to place company monies into safe custody.

3.	The appellant was accordingly dismissed and brought a case of unfair dismissal to the London (North) Employment Tribunal and an application, it appears, in respect of dismissal in breach of contract. They heard his case last year and ultimately in this year, over a period of some three days, and promulgated a decision on 4th February 2000.

4.	The Employment Tribunal unanimously concluded that the dismissal was fair and that the appellant was not dismissed in breach of contract. There are two separate elements, therefore, which they had to consider. First of all, so far as unfair dismissal was concerned, they had to consider whether or not the employer did have an honest belief based upon reasonable grounds and following reasonable investigation that the appellant had committed the breach of procedure for which he was dismissed. That is to look at matters by evaluating the employer’s reason and does not necessarily involve consideration of whether in fact the conduct which the employer believed to have occurred had occurred. An allegation of breach of contract is rather different. That requires the tribunal to examine whether or not the conduct had occurred and looks at the conduct itself and not the employer’s perception of it.

5.	We are satisfied that the Employment Tribunal here examined the first question appropriately. It is argued in the Notice of Appeal that the decision was perverse because it was based upon a rehearing of issues, which the tribunal accepted had remedied the original flawed disciplinary hearing. We see no reason why a fair appeal should not, in appropriate circumstances, remedy defects in an earlier hearing, and there is no basis, we think, in this objection. Secondly, we are told that the tribunal did not reach a conclusion upon a submission, which had been made to them. The answer to this, it seems to us, is that it is necessary for a tribunal to say why an applicant has won or lost and this they did. Thirdly, they say that the appellant was entitled to holiday pay; this is looking at the contractual claim, irrespective of whether the respondent was entitled to dismiss or not. 

6.	So far as contractual issues are concerned, we think that there may well be some force in that last point that any accrued holiday pay, which the appellant can show was properly due to him under his contract, may be paid to him. Secondly, we have some concern about paragraph 25 of the Employment Tribunal’s reasoning where they deal with whether or not the appellant had in fact been guilty of misconduct alleged. On balance we take the view that they were entitled to reach that conclusion, and so the only basis upon which we think this is appropriate for a full hearing is on the basis of the holiday pay.

7.	We give the following directions. Within the documentation to go to the full Employment Appeal Tribunal there should be a copy of the contract of employment, we assume that this was before the Employment Tribunal (plainly it cannot go before the Employment Appeal Tribunal if it was not) so that the provisions, if any, in relation to the payment of accrued holiday pay will be apparent. We would estimate half an hour for the full hearing of this appeal. It is a short and simple issue restricted to this one point and we do not give permission for the appeal to go forward on any other ground.