The Claimant had previously worked for the Respondent for more than 30 years until she was dismissed by reason of redundancy, which led to her bringing unsuccessful ET claims. She applied for a newly advertised position with the Respondent and, when she was told that she was "significantly overqualified for the role", she submitted a claim of victimisation, relying on her previous ET claims as protected acts. The ET upheld her claim, and the Respondent appealed on a number of grounds, including (1) that the judge appeared to fall asleep twice during the cross-examination of the Claimant and so the Respondent did not receive a fair trial, and (2) that the ET failed to properly evaluate the Respondent's explanation that it genuinely believed the Claimant was overqualified, in which case the Claimant was not victimised.

The EAT held that (1) there was a real possibility that the fairness of the trial was affected, on account of the judge having fallen asleep on two occasions, and (2) the ET had failed to come to a specific conclusion about the extent to which it accepted the Respondent's explanation for its conduct. Accordingly, the matter would be remitted for hearing by a fresh ET.