In Samuel Smith Old Brewery v Marshall the EAT concluded that two pub managers who were dismissed before their employer had completed a grievance appeal, were not unfairly dismissed. The EAT therefore overturned the Tribunal finding of unfair dismissal. The Claimants ran a pub near Doncaster on behalf of the brewery. The brewery asked the Claimants to cut staff hours from 84 hours to 45 in light of difficult trading conditions. They refused to implement this measure and raised a grievance on the grounds that the change would mean that they would have to work additional hours.

The grievance meeting took place and the brewery confirmed the instruction to reduce staff hours. The Claimants again failed to comply and appealed the decision. The brewery then instigated disciplinary proceedings against the couple. They failed to turn up for the disciplinary hearing despite numerous dates being offered. This meeting took place a week before their grievance appeal was due to be heard.

The couple were dismissed for gross misconduct. An Employment Tribunal upheld their unfair dismissal claim but on appeal the EAT held that the Employment Tribunal had used the benefit of hindsight as opposed to considering the real information available to the employer at the time. There was no obligation on the employer to wait for the grievance appeal to take place and the dismissal was therefore fair.