The Claimant, who had worked for the Respondent housing association for more than 14 years, faced an allegation of having made homophobic comments to a tenant. The Respondent's investigation found the allegation to have been proven against the Claimant, and he was summarily dismissed. In unfair dismissal proceedings commenced by the Claimant, the ET did not accept that the Respondent's Chief Executive held a genuine belief that the Claimant had made homophobic comments as had been alleged, and it concluded that the Claimant's complaint of unfair dismissal was well founded. The Respondent appealed on a number of grounds, including that the ET's finding on lack of genuine belief regarding the Claimant's conduct was perverse, and attacking the ET's findings on the question of fairness.

The EAT held that, although the ET stated that it was aware of the different tests to be applied, to the determination of unfair dismissal on the one hand, and to the questions of contributory conduct and breach of contract on the other, the findings made did not reveal a practical application of the band of reasonable responses test. Accordingly, the EAT upheld the appeal in its entirety, and remitted the matter to a fresh ET for rehearing.