Appeal No. EAT/780/93

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23 June 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR J C RAMSAY

	MR R TODD

THE POST OFFICE	APPELLANTS

MR S GRANT	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR J DEE
(OF COUNSEL)
Messrs Clayton Mott & Son
Solicitors
Milton Chambers
19 Milton Street
Nottingham NG1 3EU

	

		JUDGE LEVY QC:		On the 30 January 1993 Mr S Grant was dismissed from his job with the Post Office and he put in an application to an Industrial Tribunal complaining of unfair dismissal, which was received on the 24 April 1993.  After previous warnings for offences of a different type, he had been dismissed for leaving some mail behind.  The hearing before the Industrial Tribunal was on the 29 July 1993 and the decision of the Tribunal was promulgated very shortly afterwards, that is on the 4 August 1993.  The unanimous decision of the Tribunal was that the Applicant was unfairly dismissed, but that he had contributed 50% to his own dismissal and he was awarded compensation on that basis.

	The Post Office appeals from the decision of the Tribunal on the grounds as set out in the Notice of Appeal as follows:

		"a)	whether, when an employee commits a further disciplinary offence while subject to a final warning or suspended dismissal, the fact that the further offence is minor and of a different nature from the offence leading to the final warning or suspended dismissal means that the employers' decision to dismiss is outside the range of reasonable responses open to them;

		b)	whether upon such findings of fact as the tribunal reasonably made, a reasonable tribunal could have found that the dismissal was unfair."

	Mr Dee, in an admirable skeleton argument before us in the oral hearing of a Preliminary Appeal hearing, has augmented that Notice of Appeal.  He has also taken us through the reasons of the Industrial Tribunal and he has also referred us to the case of Noel v Curtis [1990] ICR 604 which he submitted was on all fours.  However, it is apparent from the extract from that decision, which is included in his skeleton argument, that Mr Justice Wood, giving the judgment of the Employment Appeal Tribunal, made it clear that each case turned on the individual facts.  

	We have carefully examined the decision of the Tribunal, and the reasons for it, and we have come to the conclusion that the final sentences in paragraph 6, contain the kernel of the decision:  They read:

		"We believe that a reasonable employer would have taken into account the minor and different nature of the November offence.  We are saying therefore, that dismissal was not within the reasonable bands of reasonable responses for an employer in a position in which the Respondents were."  

	That was a conclusion which on the evidence we are of opinion the Industrial Tribunal could have reached and one with which it would be wrong for us to interfere.

	In those circumstances it is not our view that the appeal should go forward and we intend to dismiss it at this preliminary stage. 

	That is not quite the end of the matter because Solicitors acting for the Respondents to the appeal, Messrs Eddowes Waldron & Cash, have, I would almost use the word "bombarded" the Tribunal with letters about what they felt should happen on this application.  It is not for the Respondent's advisers to put that sort of material before a Tribunal on a preliminary hearing but we do note that the Respondent is legally aided.  One of the reasons that preliminary hearings are held is to save a Respondent to an appeal incurring expenses which can be avoided if only the Appellant attends on a preliminary hearing.  If that happens, a Respondent has limited, if any, expenditure in an appeal.  We intend to make no order for costs of the appeal other than to say, if such is necessary, the Respondent should have legal aid taxation of his proper costs of the appeal.