The claimant had worked for the respondent for some 9 years and was required to wear PPE. For 8 years he changed out of his PPE just prior to clocking out. During a year's absence the respondent changed the policy so staff had to change in their own time. The new policy was not explained to him when returned to work so he carried on as before, believing he had a contractual right to act as he did. The respondent disagreed and a disciplinary process began during which he continued with his behaviour and was subsequently dismissed.

In the ET, the judge concluded there was no contractual term entitling the claimant to change out of his PPE prior to the end of his shift and the instruction to act in accordance with the new policy was reasonable. However, in the light of the judge's own findings, her conclusions about the fairness of the procedure and dismissal, and that they fell within the band of reasonable responses, were perverse and could not stand, stating at [70]

"In particular, it was an evident oversight not to consider the finding that the Claimant had a genuine, but mistaken belief of the Claimant about the lawfulness of his employer’s instruction. We also consider that it was perverse to reject, summarily, the criticism advanced by the Claimant that he had had no time to consider the outcome of the appeal against his final written warning and to change his actions before further disciplinary proceedings were initiated." .