Appeal No.	 EAT/860/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 December 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS A MADDOCKS OBE
MR A E R MANNERS

THE POST OFFICE	APPELLANTS

MR K CLARKE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR R CLAYTON
(of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
Croydon CR9 1PJ	

	MR JUSTICE MORISON (PRESIDENT):     The question at issue is whether there is an arguable point of law in relation to an appeal which the Post Office wish to make against a decision of an Industrial Tribunal which found that they had unfairly dismissed a former postman employed by them, Mr Clarke.  They also found him guilty of contributory fault.  

	The essence of the Tribunal’s decision, as we understand it, is that the disciplinary code pursuant to which Mr Clarke was being dismissed, contained within it an offence of wilfully delaying the mail.  He was found guilty by the employers of wilfully delaying the mail.  The reason why the employers found him guilty of that was because the employers themselves misunderstood what was required by the word “wilful” and that there is a distinction between a deliberate act on the one hand and a wilful act on the other and that the employers appear to have thought that it was sufficient if he had deliberately delayed the mail and that that would always constitute wilful delay of the mail.

	Accordingly they arguably concluded that no reasonable employer, properly directing itself as to whether the employee had wilfully delayed the mail, could have concluded that he had.

	It has been argued before us with some force that what the Tribunal have done in this case is to have substituted their own decision for that of the employers and that they had not directed their minds to the question as to whether a reasonable employer could have arrived at the conclusion that these employers did, despite the fact that they appear to have directed themselves correctly, in paragraph 7 of their decision.  On that question only, that is whether the Industrial Tribunal have effectively substituted their own judgment for that of the employers.  
	We consider that this appeal is arguable.  Notes of Evidence are not required.  This can be dealt with by His Honour Judge Clark and it should be listed for half a day, Category C.