The Claimant was dismissed for gross misconduct. This decision was downgraded to serious misconduct after an internal appeal but the dismissal decision still stood. The ET found that the dismissal was unfair saying that prior warnings should have been given for serious misconduct and the Respondent appealed.

The EAT allowed the appeal. The ET had unduly restricted its assessment of the fairness of the dismissal for the purposes of section 98(4) ERA by assuming as a general rule that a finding of conduct short of gross misconduct meant dismissal for a first offence was necessarily unfair; section 98(4) made no such prescription and the ET had failed to demonstrate it had correctly approached the question of fairness, alternatively, it had impermissibly substituted its view as to the appropriate sanction for that of the reasonable employer in the particular circumstances of the case.