EAGA Plc v Tideswell - Tribunal's decision showed "substitution mindset" [2011] EAT

When considering whether a dismissal was fair, a tribunal must not reach a decision by making its own findings and then assessing the employer's action in the light of such findings, nor in reliance on what it would itself have done.

Mr Tideswell was a cavity wall insulation installer. Following a fatal accident EAGA had instructed that all its employees must be hooked onto their ladders at all times with a safety harness; EAGA had a "zero-tolerance" policy on this and breach would be viewed as gross misconduct. Mr Tideswell was seen at work unsecured to his ladder - and dismissed for gross misconduct. EAGA rejected Mr Tideswell's evidence that he could not be seen from where he was allegedly spotted, and statements from his colleague and the property owner that he was hooked on, preferring that of the managers.