In Nejjary v Aramark Ltd the EAT allowed an appeal from a decision of an employment tribunal which had rejected a claim for unfair dismissal from a hospitality manager summarily dismissed for gross misconduct.  The dismissal was based on a single incident - failure to check a booking sheet, leading to a complaint from a customer.  Both the dismissing manager and an appeals officer relied on that incident, and no other prior matter, as having brought the employer's reputation into disrepute and justifying dismissal. 

The Tribunal found that summary dismissal for one incident of failing to check a booking form would normally be outside the range of reasonable responses for an employer.  However, because the employee had previous warnings arising out of similar failures to follow procedures for checking arrangements, dismissal was a reasonable response in this case. 

Allowing the complainant's appeal, the EAT pointed out that the “reason” for dismissal with which the unfair dismissal legislation is concerned is the employer’s actual reason for dismissal, not the reasons for which the employee might conceivably have been dismissed.  In this case the employer did not refer to the other matters (in either the dismissal letter or the appeal decision letter) as reasons for the dismissal and evidence given by the manager who made the dismissal decision revealed that he did not have any other incidents in his mind at the time.  Nor were the incidents referred to in the employer's ET3 defence to the tribunal claim.  Tribunals are not allowed to substitute their views for that of the employer when assessing fairness and equally they cannot supply an additional reason for dismissal which the employer had not in fact adopted at the time - even if the employer could have done so.