The claimant was involved in two incidents in 2013 – the first involved using abusive language to a manager and refusing to follow a reasonable request; the second was a breach of the employer's editorial guidelines. His employer brought disciplinary proceedings arising from the incidents and he was given a final written warning, live for 12 months. He was told that his behaviour amounted to gross misconduct.

Shortly afterwards, the employer started a series of further investigations against the claimant, culminating in further disciplinary charges relating to alleged misconduct. After a disciplinary hearing the claimant was summarily dismissed.

At the subsequent unfair dismissal hearing, the Tribunal concluded that the final written warning was "manifestly inappropriate". The employer's disciplinary procedure defined misconduct as including such matters as poor attendance, failure to observe policies and procedures, abusive behaviour and unreasonable refusal to follow an instruction issued by a manager; examples of gross misconduct included assault, theft, serious negligence, endangering life, gross dereliction of duty, discrimination or harassment, or serious breach of confidence. Nevertheless, the Tribunal concluded that the dismissal was not unfair.

The EAT agreed that the final written warning ought not to have been imposed. Neither of the two incidents constituted gross misconduct – either on the basis of the employer's own disciplinary procedure or by generally accepted standards.

As to whether the decision to dismiss was nevertheless reasonable, the Tribunal had to assess to what extent the employer had relied on the final written warning. If it had treated the warning as no more than background or as indicative of the standard to be expected of an employee, and if in reality it dismissed for the misconduct alleged in the new disciplinary proceedings, the Tribunal could be entitled to find that the dismissal was fair. But if the employer had attached significant weight to the warning, for example starting from the position that the employee would be dismissed for any significant misconduct because he was already subject to a final written warning, then it was difficult to see how the employer’s decision could have been reasonable.

But the Tribunal hadn’t taken this approach. Instead, it simply asked whether, if the claimant had been given a written warning, instead of a final written warning, the decision to dismiss would then have been fair – a significantly different question. The EAT sent the case back to the Tribunal to make a fresh decision.