Appeal No. EAT/753/92
	I N T E R N A L 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR T S BATHO

	MR G H WRIGHT MBE

MR A W HOWE	APPELLANT

WHITBREAD PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

	

	JUDGE HULL QC:  This appeal is in our list as a Preliminary Hearing under our practice direction.  It is for us to say whether it should go on to a full hearing.  Mr Howe has appeared in front of us in person and put his case very fairly.  He refers us to his Ground of Appeal that:

"the tribunal directed itself that in the case of two employees employed with joint managerial responsibilities for licensed premises each was jointly responsible for the whole so that an employer who concludes that there has been mismanagement may act reasonably in dismissing one of the two employees by reason of his joint responsibility notwithstanding that there is no finding that that employee himself committed acts of misconduct".

That is the first of his grounds.

	It is perfectly obvious that the Tribunal did not make a sweeping declaration of law along those lines.  What the Tribunal did was to consider the evidence.  In the evidence there were numerous instances in which Mr Howe, who was being interviewed by representatives of the management, admitted that checks had not been made or that things had not been done which should have been done and that he had to accept joint responsibility for it.  He told us today and I am sure he told the Tribunal, that it was a matter for him and his wife how they divided their responsibilities.  Of course it is hard if one partner lets the other down, but in the circumstances it was for the employers to assess the responsibility which lay jointly on Mr Howe and his wife and give proper weight to the fact that the relationship between them had broken down.  If they acted fairly in doing that it was for them to manage their business and not for the Tribunal to say that they had acted wrongly or that the Tribunal Members would have acted in some different way.  There is therefore no point of law in that.

	The second ground on which Mr Howe complains is that:

"the tribunal misunderstood the evidence ..."

It was said by the Tribunal that an offer by Mr Howe's wife to repay £1,500 was mentioned for the first time at the hearing before the Tribunal by Mr Howe.  That was quite wrong.  It was mentioned albeit only in a single remark by this Appellant, Mr Howe, in an interview on 20 September with Mr Colin Burton, a representative of his employers.  He said on that occasion (page 19 of the bundle):

"Cathy offered to pay back £1500".

He did not say exactly who to, but presumably to those who had lost.

"Why should she offer to pay?  I'm innocent.  I know what I think."

He was saying in effect that Cathy had admitted responsibility for an important part of these discrepancies.

	If the employers had dealt with that unfairly and told the Tribunal that this was the first time they had heard of it that would be a serious matter but what the Tribunal had to do was to assess whether the employers had acted fairly and the fact that the Tribunal made this mistake, albeit a significant mistake about what had been before the employers, could not in our view affect the validity of their decision in the sense of being an error of law by the Tribunal.  Indeed, if the Tribunal had correctly appreciated the position, it is very difficult to see how it could possibly have affected their decision.  They heard the evidence, they were able to assess the evidence and in giving their decision they made this one mistake of fact which does not seem to us to affect the decision as matter of law.

	In those circumstances we cannot find any point of law entitling Mr Howe to appeal to this Tribunal and the appeal cannot proceed and will be dismissed.