In determining the claims of wrongful dismissal, the EJ had to determine as a matter of fact what had taken place. The EJ held that Mr Khan had assaulted a colleague. The assault took place in a small office. The EJ held that Mr Ali had been present in the office when the assault occurred and did not intervene to prevent it. The EJ concluded that the assault by Mr Khan was an act of gross misconduct and, accordingly, Mr Khan was not wrongfully dismissed. The EJ concluded that Mr Ali’s presence and failure to intervene was not sufficient to constitute gross misconduct, and so he was wrongfully dismissed. Both men were found to have been dismissed unfairly. The Respondent appealed against the finding of wrongful dismissal of Mr Ali and the unfair dismissal decisions, and Mr Khan cross-appealed against a finding that he was not wrongfully dismissed.

The EAT dismissed the appeal and cross-appeal. Having considered all the material before them, and the submissions of counsel, standing back, the EAT have concluded that this was precisely the type of case where the EAT should not intervene. The EAT should not be second guessing the factual findings of the ET on what will necessarily be only a part of the material that the tribunal considered.