Case update: is it fair to dismiss an employee based on findings by an Employment Tribunal?

Bringing an Employment Tribunal claim involves plenty of risk: legal fees, time, publicity and an uncertain outcome. 

5/7/2019 12:00:00 AM

But one risk that parties may not anticipate is the impact that findings of dishonesty can have on their careers.

In a recent case, an equities analyst (whose role required FCA approval) was dismissed after losing a disability discrimination claim brought while he was still employed. The basis for his dismissal was that the Employment Tribunal had criticised his evidence, finding him to be evasive and misleading, and his employer took the view that those findings were incompatible with him performing a regulated role. The Employment Appeal Tribunal agreed that this was a fair reason for dismissal (although his dismissal was unfair on procedural grounds).

Although the case may appear helpful for employers, there are some important health warnings. First, in regulated businesses, it's not just claimants whose employment could be affected by an adverse finding – this applies equally to other witnesses. (Indeed, taking different approaches to witnesses for the employer and claimants could itself be unlawful victimisation). The risk of an adverse finding about the witness' credibility needs to be factored into litigation strategy from the outset. Second, although it's possible that such adverse findings could be a fair reason for dismissal of a non-regulated employee, the employee would need to consider carefully whether this was justified in an individual case, as the risk of a victimisation claim would be significant. Finally, employers need to consider carefully whether the Tribunal's findings stand on their own or require additional investigation; although further investigation wasn't needed in this case, it may be necessary in others.

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