Where an employee claims that a dismissal for misconduct was unfair, the tribunal has to consider whether the employer carried out a reasonable investigation and, at the time of the dismissal, genuinely believed on reasonable grounds that the employee was guilty of misconduct. In many cases the tribunal must then go on to consider whether dismissal was a reasonable penalty.

In EAGA Plc v Tideswell, the Tribunal and the EAT accepted that dismissal was a reasonable sanction for the conduct alleged to have occurred. Following a fatal workplace accident, an insulation installation company had introduced a zero tolerance policy on certain safety measures. Under this policy it was classed as gross misconduct if an employee using a ladder failed to wear a safety harness and clip it onto the ladder. Two company managers saw the employee working on a site apparently in breach of this requirement and, after a disciplinary hearing and appeal, which centred on the evidence of the two managers, the employee was dismissed for gross misconduct.

The Tribunal decided that it was suspicious that the managers happened to be passing the site and that they could not honestly have formed the view that they did. They upheld the unfair dismissal claim. But the EAT held that the wrong question had been addressed by the Tribunal. They should have asked whether the person who took the decision to dismiss was reasonable in concluding that the witnesses were honest, not whether they were in fact honest.