This case arose from the dismissal of a railway worker for his failure to observe trackside safety rules. The EAT upheld the Tribunal's finding that the dismissal was unfair and referred to a comparator who had not been dismissed for breaching safety rules arising from the same incident. The EAT held that, while the Tribunal did not cite any statute or authority, thus creating a risk of error, it nevertheless upheld the appellant on BHS v Burchell [1978] IRLR 379.

The EAT‟s comments on this merit recital here:

"So, the first stage is always to find by way of BHS v Burchell whether the employer had reason to believe there were infractions and secondly, to decide what the response is... As to comparators, the proper approach is to look at section 98(4) which by its invocation of “equity and the substantial merits” caters for fair dealing by an employer of employees in the same circumstances. We decided this in a compromised appeal CFS v Bashir UKEAT/0057/12 para 3, but now apply it in a contested appeal. There is no difference between unreasonably and irrationally."

Read the full EAT decision here.