The Claimant was dismissed by reason of misconduct. He had a prior record of around 25 years’ unblemished service, but had then received a final written warning. The conduct leading to the dismissal had occurred during the currency of that warning, although the dismissing officer did not taken it into account. An issue arose at the full merits hearing as to whether the dismissing officer had given consideration to the Claimant’s length of service. His counsel contended that, notwithstanding that his witness statement said he did, in light of the dismissal letter not mentioning it, and his answers to questions in cross-examination the ET should find as a fact that he did not consider it, and should find that this made the dismissal unfair. The ET dismissed the Claimant's claim of unfair dismissal saying that the Respondent had expressly considered long service but did not consider it to be a sufficiently mitigating factor. The Claimant appealed.

The EAT allowed the appeal. The ET stated that it accepted the dismissing officer’s evidence that he had considered length of service, but did not sufficiently address the argument that he had given contradictory oral evidence on that point. Given the importance that the Claimant had attached to this issue as a point going specifically to fairness, the ET's otherwise thorough and meticulous decision was deficient in this regard.