Chunxiu Zhao v Govia Thameslink Railway (GTR) Limited

Under section 98(4) of the Employment Rights Act 1996, fairness in a conduct dismissal is assessed against the range of reasonable responses, including the employer’s investigation, procedure and sanction. The tribunal must assess the substance of the disciplinary process as a whole, including any appeal, and whether the employee had a fair opportunity to answer the actual charge. There is no universal requirement for an initial investigation meeting in a particular form. Imperfectly framed allegations do not necessarily make dismissal unfair where the employee understood their substance and could respond.

Ms Zhao worked for Govia Thameslink Railway as a station sales clerk. The employer summarily dismissed her after she emailed HR to object to a colleague being assigned to her station, saying that he and an existing colleague were both Indian and would form a clique. The Employment Tribunal dismissed her ordinary unfair dismissal complaint, along with other claims, and refused reconsideration.

Her appeal to the Employment Appeal Tribunal concerned only ordinary unfair dismissal. She argued that she had not been fairly notified that the email was alleged to be discriminatory and that the tribunal had failed to address her explanation for referring to the colleagues’ shared race. The central issue was whether the tribunal erred in finding the dismissal fair under section 98(4) of the Employment Rights Act 1996.

The appeal was dismissed.

1. Under section 98(4) of the Employment Rights Act 1996, the question was whether the employer acted reasonably in treating conduct as a sufficient reason for dismissal. In conduct cases, relevant matters include whether the employer genuinely believed misconduct had occurred, had reasonable grounds for that belief, and carried out an investigation reasonable in all the circumstances. The range of reasonable responses applies to the process as well as to the decision to dismiss. The EAT drew on British Home Stores v Burchell [1980] ICR 303 and Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588; [2003] ICR 111.

2. Fairness is assessed by considering the substance of the disciplinary process from beginning to end, including the appeal, and in light of the conduct that was the reason for dismissal. The employer is not required in every case to conduct an initial fact-finding investigation, or to do so in a prescribed way. The relevant question was whether Ms Zhao had a fair opportunity across the process to defend the actual charge. The EAT applied Taylor v OCS Group Limited [2006] EWCA Civ 702; [2006] ICR 1602.

3. The ACAS Code states that an employee should receive sufficient written information about alleged misconduct and its possible consequences to prepare for a disciplinary meeting. It also recognises that an investigatory meeting will be necessary only in some cases. The EAT held that the tribunal was entitled to assess the documents and process as a whole, rather than treat the absence of a written invitation to the investigation meeting as automatically unfair.

4. The tribunal had identified shortcomings in how the allegations were framed. Read as a whole, however, the investigation report and its enclosures allowed it to find that Ms Zhao understood the substance of the allegation that her email was discriminatory. She had discussed the email during the investigation and disciplinary process, and had a further opportunity to answer the allegation on appeal. The tribunal had considered the relevant evidence, and its conclusion that she had a fair opportunity to respond was neither erroneous nor perverse.

5. The tribunal also did not err in accepting the employer’s interpretation of the email. Ms Zhao’s stated concern was that the two colleagues would form a clique because both were Indian. Her assertion that she would have expressed a similar concern about any two colleagues sharing a race or religion did not displace the tribunal’s finding that the employer could reasonably regard the email as race-related.

6. The EAT observed that an employer’s failure to follow its own procedure in some respect does not necessarily make a dismissal unfair. The appeal was dismissed on both grounds.

• Employment Appeal Tribunal — The appeal was dismissed: Chunxiu Zhao v Govia Thameslink Railway (GTR) Limited, [2026] EAT 101 .
• Employment Tribunal (Croydon) — Dismissed the complaints, including ordinary unfair dismissal. The reconsideration application was refused.