Appeal No. UKEAT/0056/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 30 May 2007

Before
THE HONOURABLE LADY SMITH
MR M SIBBALD
DR W SPEIRS

ROYAL MAIL	APPELLANT
(A TRADING NAME OF ROYAL MAIL GROUP PLC)

MR W ADAM	FIRST RESPONDENT
	
MRS D STEPHEN 						  	   SECOND RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Mr R C CONNAL QC
(Solicitor Advocate)
Instructed by:
Messrs McGrigor Donald Solicitors
Johnstone House
52-54 Rose Street
Aberdeen
AB10 1UD
	
For the First Respondent	Mr J STEEL
(Solicitor)
Messrs Raeburn Christie Clark & Wallace  Solicitors
12-16 Albyn Place
Aberdeen
AB10 1PS	
For the Second Respondent	Mr C Wilson
(Solicitor)
Messrs Stuart Wilson Dickson & Co Solicitors
39 Main Street
Alford
AB33 8PX	

SUMMARY

Unfair Dismissal – Reasonableness of dismissal
Two employees of Royal Mail were dismissed for admittedly gross misconduct, namely wilful delay of mail.  An Employment Tribunal, by a majority, found the dismissal to have been unfair taking account of circumstances which included that the delayed mail was “junk mail”.  On appeal the Employment Appeal Tribunal held that it erred in law in so doing and had also failed to recognise that dismissal was an option that was, in the circumstances, open to the Respondent.  It reversed the judgment of the Tribunal and dismissed the claims.

THE HONOURABLE LADY SMITH
Introduction 
1.	This is an appeal by Royal Mail, to whom we will refer as Respondents, against a finding that they had unfairly dismissed both Respondents, to whom we will refer as first and second Claimants.  

2.	The Tribunal’s findings and orders followed a hearing in Aberdeen, Chairman Mr N Hosie, and its judgment was registered on 7 June 2006.  Written reasons were registered subsequently, on 15 June 2006. 

3.	All parties were represented by solicitors before the Tribunal.  Before us, the Respondents were represented by Mr Connal QC, solicitor-advocate and the Claimants by Mr Steel and Mr Wilson, the solicitors who had appeared before the Tribunal.

The Facts 
4.	The first Claimant was employed as a postman at the Alford delivery office.  He had been in the employment of the Respondents and their predecessors since November 1976.  The second Claimant began working for the Respondents in March 2000 as a casual postwoman.

5.	Both Claimants had signed personal declarations which included clear provisions regarding the Respondents’ policy on wilful delay of mail.  In particular, the following terms were relevant:
“The first duty of the Post Office is to ensure that letters, parcels, telegrams, telephone messages and all other communications or items entrusted to it reach the people for whom they are intended promptly and safely, and that the information in them reaches no one not entitled to it.

To help the Post Office to render this essential service to the community the Law makes certain provisions of which the more important are stated overleaf.  It is important for you to know and understand those provisions not only for your own sake, but also in order that you should not, through any fault or admission on your part, enable or tempt others to break them……

SAFETY OF POSTAL PACKETS – it is an offence to STEAL, SECRET or DESTROY a letter, parcel or other postal packet in course of transmission by post, and heavy penalties, including terms of imprisonment, are provided for such offences.

It is also an offence to OPEN or DELAY (without proper authority) a letter or parcel or any other postal packet in course of transmission by post, and penalties of fine or imprisonment are provided for such offences.” 

6.	Also relevant are the terms of the “Royal Mail Conduct Code”, agreed between the Respondents and the relevant recognised trade union, the terms of which were known to the Claimants.  Those terms included:

“13 	Gross Misconduct 

Some types of behaviour are so serious and so unacceptable, if proved, as to warrant dismissal without notice (summary dismissal) or pay in lieu of notice.  It is not possible to construct a definitive list of what constitutes gross misconduct, and in any event all cases will be dealt with on their merits.  However, the following examples show some types of behaviour which in certain circumstances could be judged to be gross misconduct:
…………………………….
-	wilful delay of mail

Wilful Delay 

Wilful delay of mail is classed as gross misconduct, which if proven could lead to dismissal.  The test to determine whether actions may be considered as wilful delay is as follows:
Deliberate action taken by an employee that causes mail to be delayed is called wilful delay. Where proven, such breaches of conduct can lead to dismissal, even for a first offence;  indeed Wilful Delay is a criminal offence and can result in prosecution.” 

7.	Further, a document which the Respondents provided to all new employees in positions such as the Claimants, one of which (countersigned by the second Claimant) was amongst the documents before the Tribunal, included the following terms:

“WILFUL DELAY OF MAIL 
Wilful delay means deliberately holding up the delivery of mail
Some examples are listed below
………………
All of the above examples are regarded as Post Office disciplinary matters, and are also classed as criminal offences.

If committing any wilful delay offences, you will certainly be caught. You may be dismissed.  You may also be prosecuted.”

8.	In short, employees such as the Claimants can have been in no doubt that wilful delay of mail was an extremely serious matter and that, in particular, if they did so, they would be putting their jobs at risk. 

9.	In the course of their business, the Respondents provide mail delivery services to “Capital One”, a company which sends out unsolicited mail offering its services to members of the public.  It is important business as, unlike what was referred to at the Tribunal as “social mail”, it is business from which they make a profit.

10.	On 19 September 2005, a bundle of 35 “Mailsort” Capital One letters were found in the tea cupboard in the Alford delivery office by the sub-postmistress, Mrs Bell.  They had been put there by the first Claimant:  he had found the bundle after having sorted his mail for delivery and when he was about to leave.  The second Claimant said that she would sort it for him later in the day. He had put it in the cupboard as he knew that the supervisor, Dave Bell, would not have approved of it being left behind.  The second Claimant was unable to sort the bundle as Dave Bell was in the office throughout the day. 

11.	The bundle of mail was categorised as “Mailsort 2” and, in accordance with the Respondents’ policy, known as a “clear frame” policy, it required to be delivered that day. 

12.	It would appear that, on the evidence, the options that were open to the Claimant when he found the bundle of mail were to sort it there and then (which would have taken up to an hour), to draw the matter to the attention of the supervisor, Mr Bell, who had authority to withhold delivery in certain circumstances, or to have taken the mail with him in his van and sort it in the course of his delivery round.  He did not approach Mr Bell as he thought he would get an adverse reaction. 
13.	Both Claimants were disciplined.  Disciplinary meetings took place on 6 October 2005. The outcome was that both were summarily dismissed.  The first Claimant was advised, by letter dated 12 October 2005, that his dismissal was because he:
“…failed to deliver mail due for delivery, and hid the items from view, in a cupboard, thereby committing an act of Wilful Delay of mail, which is deemed to be gross misconduct.” 

14.	The second Claimant was advised, by letter of the same date, that her dismissal was because she:
“……had full knowledge of, and were associated with, an act of Wilful Delay of Mail, which occurred on Monday 19 September 2005.  This is deemed to be an act of gross misconduct.” 

15.	They both appealed.  It appears that the first Claimant’s position included that he had at first thought that the mail was “Mailsort 3” and so did not require to be delivered that day.  It was though determined that it was “Mailsort 2”.  He also stated that if he had thought that the second Claimant would not have been able to sort the mail for him, he would have taken it in his van and sorted it there himself.  Reliance was placed on his length of service and unblemished record.  The second Claimant’s position was that she accepted she had been extremely foolish. The Respondents concluded that she knew the mail was due for delivery that day and was a willing participant in the concealment of the mail. They were also of the view that she should have brought the matter to the attention of the supervisor and in not doing so had played a major part. 

The Issues for the Tribunal 
16.	The facts were largely not in issue and the Tribunal was satisfied that the disciplinary and dismissal procedures followed by the Respondents were entirely reasonable.

17.	What the Tribunal had to determine was whether the Respondents had acted reasonably in treating the Claimants’ conduct as a sufficient reason for dismissal, whether the Claimants had contributed to their own dismissals and what, in the event that it was determined that they had been unfairly dismissed, was the appropriate remedy in each case. 

The Tribunal’s Decision  
18.	The majority decision was that the Claimants had been unfairly dismissed.  They accepted that the first Claimant had been guilty of gross misconduct but dismissal did not necessarily require to follow as each case fell to be assessed on its own merits.  They considered that the first Claimant’s dismissal did not fall within the band of reasonable responses for five reasons.  Those reasons included:  “The nature of the mail delayed” and “Extent of the Delay”. 

19.	As regards the nature of the mail, the majority state, at paragraph 33:
“…what the Tribunal had to consider was not the subjective view of Royal Mail but rather the objective test of the reasonable employer and in the view of the majority the nature of the mail in question was a material factor.  Although the Royal Mail employees were unhappy with the use of the term ‘junk mail’ it is a term which is now current in the English language and it is defined in the Chambers Dictionary as ‘unsolicited mail’.  It is a term which is known to Royal Mail’s customers and, significantly, it is a term which a reasonable employer would know.  The Mailsort items in the present case which were delayed were ‘junk mail’ and as this mail is unsolicited it is common knowledge that the vast majority of it is not even opened by customers or is destroyed immediately after it is opened.  In the view of the majority a reasonable employer would have regard to the nature of the mail in question.  For example, a reasonable employer would have regard to the clear distinction between first and second class stamped mail and unsolicited junk mail. Royal Mail did not draw such a distinction in the present case.”

and as regards the extent of the delay, at paragraph 34, they continue:
“Further, it was clear that Mr Adam would have delivered the Mailsort letters in question the following day (which in fact he did) and there was no question of Royal Mail’s customers being permanently deprived of this mail as they would be, for example, in an extreme case of wilful delay of mail where the mail is actually destroyed. In the view of the majority it is inconceivable that any of the intended recipients of this mail would complain about the delay, as they may well have done if it had been first class stamped mail, and improbable that Capital One would be unduly concerned, even if they became aware of it, when they heard the reason for the delay.” 

The majority concluded:
“While the majority recognised that the range of reasonable responses is wide and while technically, Mr Adam was guilty of wilfully delaying the mail, the degree of dishonesty and misconduct was such that his dismissal, in all the particular circumstances of the case, was outside the range of appropriate reactions.  Royal Mail had a very wide range of sanctions open to it but it decided on the most severe.  The majority was of the view that his dismissal fell outwith the band or range of reasonable responses and that it was unfair.” 

The minority member explains:
“29 	The dissenting Member was satisfied that what had occurred constituted a ‘Wilful Delay of mail’ on Mr Adam’s part …………While the delayed Mailsort items were what are known colloquially as ‘junk mail’, nevertheless they still had to be delivered that day on account of Royal Mail’s ‘clear frame policy’.  Mr Adam, a very experienced Postman who had also been a Manager at one time, was aware of that. Although the dissenting member accepted Mr Adam’s evidence that he had only come across the Mailsort items after he had sorted all the other items of mail for his round and had already put them in his van, he did not have authority to leave this mail and he had other options rather than hiding the items in a cupboard out of sight of his Supervisor
…

The dissenting Member considered the dismissal to be extremely harsh in the circumstances;  he also took the view that a reasonable employer would have regard, in particular to the nature of the mail which was not delivered and to Mr Adam’s length of service.  However, while he was of the view that the issue was a narrow one, and he was sympathetic to Mr Adams’ situation, nevertheless he was unable to say that the dismissal did not fall within the band of reasonable responses.  Accordingly he was driven to the view that Mr Adams’ dismissal was fair.” 

20.	The Tribunal were, however, unanimous in their view that the second Claimant’s dismissal was unfair given, again, the nature of the mail in question and what is referred to as the “passive” nature of her involvement.  They considered there was no question of her having played a “major part” contrary to the view expressed by the Respondents. 

The Relevant Law 
21.	The Respondents having established a potentially fair reason for the Claimants’ dismissals, the issue for the Tribunal was to be found in section 98(4) of the Employment Rights Act 1996:
“… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 
(b)	shall be determined in accordance with equity and the substantial merits of the case.” 

22.	In applying the provisions of section 98(4), it is important to consider the reasonableness of the employers’ conduct and not whether the Tribunal itself would have considered the dismissal to be a fair one.  It is not for the Tribunal simply to substitute its own decision as to what was the right course to adopt.  A Tribunal requires to bear in mind that there is usually a band or range of reasonable responses to the employee’s conduct; one employer might reasonably take one view whilst another might take another view.  An example would be that referred to by Lord Justice Ackner in British Leyland UK Ltd v Swift [1981] IRLR 91:
“As has been frequently said in these cases, there may well be circumstances in which reasonable employers might react differently.  An employer might reasonably take the view, if the circumstances so justified, that his attitude must be a firm and definite one and must involve dismissal in order to deter other employees from like conduct.  Another employer might quite reasonably on compassionate grounds treat the case as a special case.” 

23.	The task for the Tribunal is, accordingly, to apply the standard of the reasonable employer which is an objective standard indicative of the ways in which a reasonable employer in those circumstances and in that line of business, would have behaved (see: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439; Post Office v Foley and HSBC Bank v Madden [2000] IRLR 82).

24.	It also goes without saying that the Tribunal is bound to decide the case before them on the basis of the evidence and not on the basis of speculation. 

The Appeal 
25.	For the Respondents, Mr Connal in a clear and cogent submission advanced two principal arguments. 

26.	The first of these concerned the fact that the Tribunal had formed and adopted a view as to the significance of the delayed mail in question.  That was something that it was not, in the circumstances, entitled to do and their having done so under and in terms of their first two reasons for deciding as they did vitiated their conclusion that the dismissals were unfair.  By way of background, he drew our attention to there having been no mention of the mail having been “junk mail” at either the disciplinary hearings or the appeals.  That was not an approach that was urged on behalf of the Claimants at that stage.  On the contrary, their union had accepted that the Claimants had been guilty of gross misconduct by wilfully delaying mail and there had been no question of suggesting at that stage that the mail ought to have been regarded as being of lesser importance than other mail.  Nor was there any reliance placed on the mail being “junk mail” in the Claimants’ forms ET1. 

27.	Mr Connal explained that the Respondents proceed on the basis that their first obligation is to deliver all mail at the time when it should be delivered.  The Tribunal ought not to have embarked on the analysis that they did.  In so doing they failed to put the hypothetical reasonable employer, against whose reactions they required to test those of the Respondents, in the correct setting.  The Tribunal had also misunderstood the nature of the Respondents’ customers.  Capital One was its customer.  The Tribunal had only analysed matters from the point of view of the recipients of the mail, who were not its customers.  On the evidence, the Respondents were a business which treated all its mail in the same way.  It did not accord the Capital One mail a lesser status. 

28.	Mr Connal referred to the case of Post Office v Gallacher EAT/ 21/99.  In that case, the Employment Appeal Tribunal had indicated that the nature of mail delayed ought to have been put to one side as irrelevant. 

29.	Mr Connal’s second argument focussed on the fact that the Claimants had been guilty of gross misconduct in the form of wilful delay of mail.  He submitted that no Tribunal properly directing itself could, given that this was a case of wilful delay of mail, have concluded that dismissal was not an option available to the reasonable employer.  It was abundantly clear from the material before the Tribunal that employees’ attention was particularly drawn to the matter of wilful delay of mail, that it was a criminal offence, that it amounted to gross misconduct, that it was liable to lead to dismissal and that it was generally regarded as a very serious matter.  It was evident that the Respondents had gone to great lengths to make these matters plain to their employees.  He posed the rhetorical question:  if an employer goes to such lengths to make clear the offence and its consequences and an employee commits the offence, how is it possible to say that dismissal is not an option? 

30.	In support of his submission, Mr Connal referred to:  Meyer Dunmore International Ltd v Rogers [1978] IRLR 167, as an example of a case where had the employees been put on notice by the intimation of a clear rule about what conduct could lead to dismissal, the dismissal could have been expected to have been found to be fair;  The Distillers Company (Bottling Services Ltd) v Gardner [1982] IRLR 48, as another example of a case in which, to put themselves in position of being able to fairly dismiss for a particular type of misconduct, the employers needed to have spelt out the rule clearly to their employees; Siraj – Eldin v Campbell Middleton Burness & Dickson [1989] IRLR 208 as an indication of the reaction of the Inner House to the suggestion that it would have been open to a Tribunal to find that a dismissal was unfair in circumstances where the recognised policy was to dismiss for the misconduct in question, namely that it had to be concluded that dismissal was an option open to the employer;  and Scottish Midland Co-Operative Society Ltd v Cullion 1991 [IRLR ] 261 as another Inner House case where a dismissal was held to have been fair in circumstances where there was a body of evidence supporting the view that the particular type of misconduct in question was a serious matter liable to lead to dismissal. 

31.	Mr Connal observed that the facts of the case were largely not in dispute, particularly the extent to which the Respondents took a serious view of wilful delay of mail.  He did though take issue with the Tribunal’s characterisation of the first Claimant’s breach of the rule as “technical”.

32.	For the first Claimant, Mr Steel submitted that the Tribunal had applied the correct tests, particularly those laid down in BHS v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones.  They had to establish what was within the width of the band of reasonable responses and they had done that.  They were entitled to take into account all five of the matters set out in their given reasons.  He, accordingly, submitted that they were correct to take account of the nature of the mail delayed and that was so notwithstanding the fact that that was not something which was founded in the course of the disciplinary hearings or the appeals.  He said that he believed that a reasonable employer would have taken the nature of the mail into account.  In considering it relevant, the Tribunal were doing the job which, as an industrial jury, they required to do.  It was generally known that there was something known as “junk mail”.  That was, therefore, something which was within the common knowledge of the reasonable employer. 

33.	When asked about the employer’s responsibility to his customer, Mr Steel responded by submitting that the hypothetical reasonable employer did not have the actual employer’s usual terms of business and did not have a particular contract of employment.  It was not necessary to equate the reasonable employer with these Respondents.  The reasonable employer did not have any particular business or contracts of employment.  It was not necessary to look at the particular business in question; it was envisaged that the Tribunal would step back from the facts of the case.  No authority was referred to in support of these propositions.

34.	Further, Mr Steel submitted that gross misconduct did not necessarily amount to a breach of the trust inherent in the employment relationship; it did not necessarily follow that the relationship was so destroyed as to require dismissal.  Thus put, he seemed to suggest (wrongly) that the dismissal would only be justified if the employee had breached the implied term of mutual trust and confidence in something of a reversal of the case that is often presented by a claimant who claims that he has been unfairly constructively dismissed.  He went on to submit that it was not enough for the Respondents to show that the Claimants were guilty of misconduct; they had to show that the dismissal was fair.  Although, when his attention was drawn to the fact that section 98(4) does not place any onus on the employer, he accepted that that was so, it seemed from the way in which his submissions continued that it was indeed the first Claimant’s position that there was an onus on the Respondents to establish fairness. 

35.	As regards the decision in the case of Post Office v Gallacher, he submitted that it fell to be explained by reference to the distinction to be drawn between misconduct justifying termination  per se and gross misconduct going to the root of the contract . 

36.	Mr Steel made some mention of the need for a dismissing employer to treat employees consistently under reference to the finding that the Respondents’ appeals manager had said that he had experience of cases where there been wilful delay of mail but the employees concerned had not been dismissed and to the case of Post Office v Fennell [1981] IRLR 221 (a case in which, unlike the present case, there were quite specific and detailed findings as to the particular treatment given to particular employees in similar circumstances to the Claimant).  However, he accepted that that matter was not relied on by the Tribunal as one of the reasons for them finding the dismissals to have been unfair and no discrete argument on the point was advanced. 

37.	Mr Steel referred to McGregor v Intercity East Coast Ltd 1998 SC 440, Spook Erection v Thackray 1984 IRLR 116, and Weir and Robertson v Stewart UKEATS/005/06/RN, the first two for the proposition that this Tribunal can only interfere with the decision of the Employment Tribunal if it has misdirected itself in law, entertained the wrong issue, proceeded on a misapprehension or misconstruction of the evidence, or taken into account irrelevant matters or reached an extravagant decision that no reasonable Tribunal properly directing itself could have arrived at, and the last for the proposition that judgment of the reasonableness of an employer’s response in a misconduct case is very much a matter for the Tribunal.  

38.	For the second Claimant, Mr Wilson said that he accepted that the Tribunal had to do more than pay lip service to the principles set out in, for instance Iceland Frozen Foods v Jones  but they had done so.  He submitted that although in some respects the Tribunal judgment was not happily worded, they had not erred.  They had not failed to recognise that Capital One were the Respondents’ customers.  They took account of their likely reaction.  That the mail in question was junk mail was but one of the five factors on which they relied.  They had to consider what would be the position of a reasonable employer and that was what they had done.  He accepted that the hypothetical reasonable employer was a person in the position of the Respondents with their knowledge, differing from Mr Steel in that respect.  If, however, matters were put in context, it was well known that the nature of the mail was that it was junk mail.  It was not as if it was first class mail that had been delayed.  It was not going to harm Capital One if it was delivered a day late nor was it going to harm the recipient.  It was unsolicited mail and that was a mitigatory factor. 

39.	Regarding the involvement of the second Claimant, it was minimal.  Whilst she accepted that she had breached the code of conduct and was guilty of wilful delay of mail, she only made a helpful offer.  Given that the Respondents had a range of sanctions available to them, that each fact established by the Tribunal including the nature of the mail, was mitigatory, given that the mail was only going to be delayed for one day, given that the second Claimant was honest about her involvement, given her six year unblemished record and given that it was not her responsibility to deliver the mail, she was to be seen as misguided but with good intentions and the conclusion reached was the only logical one open to the Tribunal. 

Discussion 
“Junk Mail”
40.	Considering each of the Respondents’ arguments in turn, we will deal firstly with the issue of whether or not the Tribunal were entitled to take into account the nature of the delayed mail.  In doing so, we note that that matter was central to the first of their reasons and was an integral part of the second.  Much emphasis was placed by the Tribunal and by the Claimants’ solicitors before us, on the mail in question being “junk mail”.  It was not, for instance, as important as first class mail.  The Tribunal gave consideration to the attitude of the recipients of such mail, who it refers to as “customers” and concluded that it was inconceivable that it would bother them that it was delayed.  That was assumption on their part; there was no evidence from any recipient of such mail.  Further, the Tribunal found it to be improbable that Capital One would have been concerned about the delay of the mail.  There was no evidence from Capital One.  That was, accordingly, a conclusion that was reached without there being any evidential basis for it and we do not see that it was the only conclusion that could be reached in the circumstances.  Had they been asked, Capital One might have expressed concern that they were not getting the service that they were paying for.  We do not see that the Tribunal were entitled to assume that they would not be bothered about it. 

41.	It is striking that the Tribunal look at matters almost wholly from the point of view of what would be the attitude of the recipients of such mail to it being delayed.  They wrongly refer to such persons as “customers”.  But they are not the customers in relation to such mail. The relevant customer was Capital One who had contracted with the Respondents to have the mail delivered on a particular basis and in so doing had provided the Respondents with a contract which, on the Tribunal’s findings, was profitable.  Further, if the attitude of the recipient of mail was relevant, that would mean that in every case where it was thought that a recipient was not keen to receive an item of mail whether it was unsolicited “mailsort” mail, first class mail or otherwise, then the approach could legitimately be taken that the rules regarding refraining from wilful delay did not have to be taken seriously;  employees such as the Claimants would be able, on the Tribunal’s approach, to make value judgments on the importance to the recipient of items of mail.  The Claimants accepted that first class mail would fall to be regarded differently and the “nature of the mail” reason could not have applied to them yet there must be many items of non-“junk” mail that recipients might reasonably be thought not to be in any hurry to receive ranging from bills to catalogues.  The Claimants’ approach simply cannot be right. 

42.	As against the lack of concern of the recipients that is focussed on by the Tribunal, the accepted evidence regarding the unqualified and absolute nature of the rules about wilful delay of mail that were drawn up the Respondents, agreed with the relevant trade union and effectively and clearly communicated to employees such as the Claimants created a clear picture of an employer who considered it of the greatest importance that mail is delivered when it should be delivered and that it is not a feature of their business that they seek to distinguish for themselves as between mail that “matters” and mail that does not.  That was also the factual position in the case of Post Office v Gallacher and it is instructive that in that case the Employment Appeal Tribunal plainly considered that it would have been wrong of the Tribunal to consider the importance or otherwise of two particular items of mail when considering whether or not an employee who wilfully delayed mail was fairly dismissed. 

43.	We are not persuaded by the arguments advanced on behalf of the Claimants under this head.  Insofar as resort was had to the submission that the Tribunal were only carrying out their “industrial jury” function, it is important to remember that all juries are constrained by an obligation to determine the issues before them on the evidence and by having regard only to material that is relevant. Being in a jury – like position is no excuse for relying on matters outwith the evidence or on the irrelevant.  Nor are we persuaded that the reasonable employer would have regarded the mail in question as being of lesser importance even if it could be said that he would have known that such mail is, in common parlance, referred to as junk mail.  It is plain from the relevant authorities to which we have already referred that the hypothetical reasonable employer, contrary to what was suggested by Mr Steel, falls to be clothed with the facts and circumstances surrounding the actual employer in the case.  In this case, that means clothing him not only with the fact that of the business being one of selling postal services to customers but with all the features of this case regarding the Respondents’ attitude to the importance of not distinguishing between different types of mail and the importance of delivering mail on time together with the extent to which that attitude was backed up by the content and communication to employees of the code of conduct, particularly regarding wilful delay of mail. 

44.	We are satisfied that, in taking into account the nature of the mail delayed, the extent of that delay, the likely attitude of the recipients and the assumed attitude of Capital One, the Tribunal erred.  That was all material which was irrelevant (and in the case of the assumed attitude of Capital One, unfounded) and in relying on it in reaching their decision the Tribunal erred in law.  

Wilful Delay of Mail – Dismissal as an Option 
45.	Turning to the second argument advanced on appeal, we are satisfied that it was indeed plain that this was a case where gross misconduct had occurred in circumstances where the employer had made it abundantly clear to employees that wilful delay of mail was a serious matter liable to lead to dismissal.  We agree with Mr Connal that the Tribunal were not entitled to downgrade the severity of the offence by labelling it as merely “technical”.  It was not “technical”.  It was wilful delay which, in terms of the Respondents’ code of conduct was gross misconduct, as the Claimants had been made well aware.  Just as the failure to follow the correct till procedure during a test transaction involving only a small amount of money in the Scottish Midland Co-Operative case did not fall to be ignored as merely technical, we do not see that such an approach was justified in this case.  A further comparison can be drawn as between that case and the present one in that the employee was well aware that breach of till procedure was regarded by her employers in a serious light and there were strong mitigating factors.  At paragraph 13, the Lord Justice Clerk said:
“It is plain from what the Industrial Tribunal say that any breach of till procedure was regarded by the appellants as a serious matter, and the appellants had always so categorised it.  It cannot be suggested that it was unreasonable for them to do so.  There was a whole body of evidence supporting the view that a breach of this kind, whether dishonest or not was a serious matter and it was recognised that it was liable to lead to dismissal.  The Respondent herself stated that failure to follow till procedures was very serious.  All the matters which were favourable to the Respondent including her length of service, her absence of disciplinary record, and the fact that only a small sum of money was involved, were considered both by the appellants and in turn by the Industrial Tribunal.”

46.	The Inner House was not, accordingly, persuaded that dismissal was not an option that was open to the Respondents in that case notwithstanding the sympathetic mitigatory factors which existed.  Virtually all that is said in that passage could be applied mutatis mutandis to the present case apart from the reference to a small sum of money having been involved.  In the whole circumstances of the case, we cannot see that dismissal ceased being an option that was open to a reasonable employer and, accordingly, to the Respondents.  Indeed, the Tribunal do, at one point, appear to have possibly accepted that that was so;  at paragraph 38, they state:
“Royal Mail had a very wide range of sanctions open to it but it decided on the most severe.” 

47.	Their jump thereafter to the conclusion that the Respondents response fell outwith the range of reasonable responses is though one which we are satisfied involves the Tribunal substituting its own judgment, probably for reasons of sympathy, for that of the reasonable employer.  It seems plain that they indicate what their choice within the range of responses would have been rather than acknowledging that at the point of considering fairness, they require to remember the width of the range.  In this case, they required to do so bearing in mind the context of the Respondents having made it quite plain in advance what a serious view would be taken of wilful delay of mail.  We are satisfied that that context was such as to leave intact the option of dismissal and can find nothing in the Tribunal’s judgment which was such as to cause the cessation of that option.  Had there been some feature of the case that did so, then the Tribunal could have been expected to explain how and why that was.  The absence of any such explanation serves to reinforce the impression that there was none, that it remained open to the Respondents to dismiss the Claimants but that the Tribunal felt that they would not have done so in similar circumstances. 

48.	Contrary then to what was argued on behalf of the Claimants, we are satisfied that the Tribunal did no more than pay lip service to the principles which they required to have in mind. 

49.	As in the Gallacher case, the Tribunal’s reasoning in this case appears to amount to a conclusion that greater sympathy should have been afforded to the Claimants and that the Respondents should not have opted for the most severe of the penalties that was open to them. However, looking at the fact that the Claimants committed acts of gross misconduct notwithstanding the clear provisions of the code of conduct of which they were well aware and that there was no unfairness in the disciplinary or appeals procedure we can only conclude that the Tribunal reached a view that was not open to them. 

Disposal 
50.	The Tribunal’s errors in respect of both matters addressed on appeal vitiate their decisions in respect of both Claimants.  In these circumstances, the appeal falls to be allowed and the applications dismissed.