The Claimant worked for the respondent as a delivery lorry driver. A manager reported that, when driving his car on the motorway, accompanied by his wife, both of them had seen the Claimant driving his van on the same stretch of motorway and smoking at the wheel. Following an internal disciplinary investigation and process the Claimant was found to have been smoking whilst driving, which was a serious breach of the Respondent’s procedures, and dismissed. He lost his claim for unfair dismissal at the ET but the ET did find that he had been wrongfully dismissed. The Respondent appealed.

The EAT allowed the appeal. At the hearing in the ET the Claimant gave evidence in person and denied that he had been smoking. Neither the manager nor his wife gave evidence to the ET. The ET concluded that it therefore could not find as a fact that the Claimant had been smoking. The EAT ruled that the ET had erred 1) by concluding that, in the absence of either the manager or his wife giving evidence in person, it was precluded from making such a finding; and 2) by failing to evaluate the hearsay evidence of the statements that had been gathered from them in the internal investigation.