The Claimant was dismissed for gross misconduct a few months after receiving a final written warning for capability reasons. The ET found that he had been unfairly dismissed concluding that the Respondent had not discharged the burden upon it to prove the reason for the Claimant's dismissal was his conduct. The ET found that the final written warning for poor performance against the Claimant, after 20 years of unblemished employment, indicated a degree of hostility regarding his continued employment. The Respondent appealed.

The EAT allowed the appeal. The ET's conclusion on reason was not supported by its findings of fact. The ET had, further, fallen into the substitution trap in respect of fairness of investigation, process and as to sanction. In the light of the conclusions reached on the liability appeal, the ET's Remedy Judgment would also be set aside.