MR S KHAN v MCDONALDS RESTAURANTS LTD [2001] UKEAT 401_00_0310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 401_00_0310Case No Appeal No. EAT/401/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S KHANAPPELLANTMCDONALDS RESTAURANTS LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr P R A JacquesDate 3 October 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of Respondent JUDGE PETER CLARK The Appellant, Mr Khan, was employed by the Respondent as Assistant Manager at its Oxford Street branch.[2]He was summarily dismissed with effect from 14 April 1999 for gross misconduct, the allegation being that he failed to place company monies into safe custody. The letter of dismissal read as follows:
"You were therefore informed that your employment with the Company was being summarily terminated effective from 14 th April 1999 on the grounds of failing to place Company monies into safe custody. Summary dismissal means dismissal without notice, payment in lieu of notice or accrued holiday pay."
[3]On 14 July 1999, the Appellant presented an Originating Application to the Employment Tribunal, complaining of unfair dismissal, summary dismissal and in the body of the application, the Respondent's failure to pay outstanding holiday pay.[4]The matter came before a Tribunal sitting at London (North) and by a Decision promulgated with Extended Reasons on 4 February 2000, that Tribunal found that the initial dismissal was procedurally unfair, but the defects in the procedure were cured on internal appeal, and that the dismissal was fair. They further found that the Appellant was guilty of the misconduct alleged, and accordingly his complaint of wrongful dismissal failed. However, the Tribunal made no adjudication on the holiday pay claim.[5]By a Notice dated 16 March 2000 the Appellant appealed against that Decision to the Employment Appeal Tribunal, setting out four separate grounds of appeal, the fourth of which was that the Appellant was entitled to holiday pay, irrespective of whether the Respondent was entitled to dismiss him.[6]The appeal came on for preliminary hearing before a division presided over by Mr Recorder Langstaff QC on 13 June 2000. The appeal was dismissed on all grounds, save for ground 4 - the question of holiday pay entitlement.[7]On 24 July 2000, solicitors for the Respondent wrote to the EAT stating that the Respondent did not oppose the appeal on the sole ground permitted to proceed at the preliminary hearing, that is the Appellant's entitlement to accrued holiday pay.[8]On 1 May 2001, Mr Justice Charles directed that a full hearing listed for the following day be vacated on the Appellant's application and further directed that the Appellant contact the Respondent's solicitors with a view to agreeing a figure for accrued holiday pay, so as to compromise the appeal.[9]No agreement having been reached between the parties, the matter is listed today for a full hearing. The Respondent has not appeared but has submitted written representations as to the proper quantum of the holiday pay claim. The Appellant has not appeared, and no explanation has been given for his non-appearance.[10]In these circumstances it seems to us that the appeal must succeed on the ground that the Employment Tribunal failed to adjudicate on an issue which was before them, that is the Appellant's entitlement to accrued holiday pay. However in the absence of any evidence, nor any indication as to the Appellant's case on quantum, and in circumstances where the Respondent puts forward two alternative calculations as to the outstanding holiday pay, it is, regrettably, quite impossible for us to determine the issue of quantum. In these circumstances we shall allow the appeal and direct that the question of holiday pay entitlement be remitted to a fresh Employment Tribunal for determination. In view of the Appellant's non-attendance before us, we direct that he should notify the Employment Tribunal within twenty one days of the receipt of our Order in this case of his intention to pursue his claim for holiday pay.[11]Following our adjudication on this appeal, we have been shown an application dated 21 August 2001 by the Respondent's solicitors for costs in this appeal in the sum of £3,081.44 inclusive of VAT. We cannot understand how so large a cost figure has been incurred in this relatively small matter, but we are not persuaded that the Appellant's pursuit of an appeal which has succeeded ought to be categorised as unreasonable for the purpose of Rule 34(1) of the EAT Rules. Accordingly the application for costs is refused.