The EAT case of Nejjary v Aramark Ltd is a reminder that when assessing the reasonableness of a dismissal, tribunals must not take into account factors which did not feature in an employer’s decision to dismiss.

Mr Nejjary was employed as a hospitality manager by Aramark Ltd, a company which provides hospitality services to Goldman Sachs. He was dismissed for gross misconduct relating to three separate incidents involving failure to check arrangements for events. An internal appeal subsequently discounted two of these incidents but held that one incident of failure to check a booking sheet for a breakfast meeting was sufficient on its own to amount to gross misconduct, since Mr Nejjary’s actions had brought Aramark’s reputation into disrepute.

The employment tribunal found that Mr Nejjary’s summary dismissal for failing to check a booking sheet would normally be outside the range of responses of a reasonable employer. However, since he had had previous written and verbal warnings arising out of similar circumstances, the tribunal held that his dismissal was fair. Mr Nejjary appealed, on the basis that the tribunal had introduced factors which had not formed part of the company’s decision to dismiss.

The EAT emphasised that the reason for dismissal considered by the tribunal must be the employer’s actual reason, not reasons for which the employee might otherwise have been dismissed. A tribunal cannot substitute a reason which was not used by the employer in its decision-making process. It must look at what was in the mind of the employer at the relevant time. Since the tribunal had found in this case that dismissal for a single incident was not a reasonable response, the EAT substituted a finding of unfair dismissal.