Background
Fieldfisher LLP dismissed Djamshid Rustambekov, a senior associate in its Dispute Resolution Department, for misconduct in November 2023. The firm genuinely believed that he had sexually harassed one colleague in January 2023 by repeatedly urging her to cancel her Uber, and that he had behaved inappropriately toward another colleague at a July 2023 work event by following her to the toilets and placing his arm around her waist.
A separate allegation that Rustambekov sexually assaulted the first colleague at the July event was not proved and formed no part of the reason for dismissal. The Employment Tribunal nevertheless relied heavily on its finding that the colleague had deliberately given false evidence about part of that alleged incident. Applying what it called the “negative pull” of that lie, the Tribunal concluded that Fieldfisher lacked reasonable grounds for believing the January allegation and held the dismissal unfair.
The Court’s Holding
The Employment Appeal Tribunal allowed Fieldfisher’s appeal and set aside the unfair-dismissal judgment. It held that the Tribunal had improperly substituted its own evaluation of the evidence for that of the employer. Under section 98(4) of the Employment Rights Act 1996 and the established misconduct-dismissal test, the Tribunal’s task was to decide whether Fieldfisher held its belief on reasonable grounds after a reasonable investigation, not to decide the allegations afresh.
The Tribunal also erred by importing reasoning from an asylum case concerning a primary fact-finder’s treatment of lies. The sexual-assault allegation was not part of Fieldfisher’s reason for dismissal, and the Tribunal was not entitled to use its own credibility finding about that allegation to displace the employer’s assessment of the January incident. Fieldfisher had considered the first colleague’s account, a witness’s evidence, and contemporaneous WhatsApp messages.
Because that substitution materially affected the unfair-dismissal ruling, the EAT set it aside. The EAT did not determine the separate perversity ground and did not finally decide whether relevant procedural defects made the dismissal unfair. It remitted the claim for redetermination by a differently constituted Employment Tribunal.
Key Takeaways
- An Employment Tribunal reviewing a misconduct dismissal must assess whether the employer’s evaluation fell within the range of reasonable responses; it must not conduct its own evaluation of the underlying evidence.
- Evidence concerning an allegation that formed no part of the employer’s reason for dismissal cannot be allowed to distort the statutory assessment of that reason.
- Any remaining question of material procedural unfairness relating to the actual grounds for dismissal must be decided by the newly constituted Tribunal on remittal.
Why It Matters
The decision reinforces the boundary between reviewing an employer’s disciplinary decision and retaking that decision. Even where an Employment Tribunal identifies credibility concerns, it must apply those concerns through the statutory reasonableness framework rather than substitute the factual conclusions it would have reached itself.
The judgment also underscores that fairness under section 98(4) must be assessed by reference to the employer’s actual reason for dismissal. Procedural failings concerning collateral allegations are not enough unless they bear materially on that reason.