In McCafferty v Royal Mail the EAT confirmed that the two lay tribunal members were entitled to find that the dismissal of an employee for alleged dishonesty was fair, even though the employment judge disagreed. There was a reasonable basis on which to conclude there had been fraud and that the employer’s response was within the band of reasonable responses. The employment judge had substituted her own views for that of the employer, whereas the lay members reached their decision on the facts of the case, drawing on their ‘valuable common sense and knowledge’, and had applied the right statutory test. In giving its judgment the EAT expressed concerns about the change in the law which now allows an employment judge to hear unfair dismissal cases sitting alone.
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