The Claimant, who was a Royal Marine volunteer reservist, was dismissed after he had committed to undertake a voluntary seven-week training exercise abroad which was not something that the Respondent, a small employer, could accommodate. The ET found that the dismissal was fair and that there was nothing in the evidence to indicate that if the Claimant had been warned that he would be dismissed if he insisted on going to the exercise, he would have changed his mind. Holding a meeting before the decision to dismiss was made would not have made any difference to the outcome. The Claimant appealed on the bases that 1) the Tribunal erred in that it conflated matters that were relevant to a Polkey reduction with matters that were relevant to substantive unfairness; and 2) the Tribunal erred when it stated that there was nothing in the evidence to indicate that if the Claimant had been warned that he would be dismissed if he insisted on the exercise, he would have changed his mind.

The EAT dismissed the appeal. Reading the judgment as a whole it was clear that the ET had the correct test under section 98(4) ERA 1996 in mind and had applied it correctly. Furthermore, the ET had made an express finding of fact that by the time of the dismissal meeting, the Claimant had already decided that he would be attending the exercise.