Fieldfisher LLP v Djamshid Rustambekov

In a misconduct dismissal case, an Employment Tribunal reviews whether the employer’s belief and investigation were reasonable. It must not decide the alleged misconduct afresh or replace the employer’s evaluation of the evidence with its own. The review must relate to the actual reason for dismissal, including each component of a composite reason. Evidence about a separate allegation that played no part in the dismissal cannot be used to reweigh the evidence supporting the operative reason.

Fieldfisher LLP employed Djamshid Rustambekov as a senior associate. It dismissed him for a composite misconduct reason: alleged sexual harassment of one colleague after an event in January 2023 and inappropriate conduct towards another colleague at a work event in July 2023. A separate alleged sexual assault involving the first colleague at the July event was investigated but did not form part of the stated reason for dismissal.

The Employment Tribunal at London Central held the dismissal unfair. It found that the first colleague had deliberately lied about part of the July incident and treated that finding as undermining her January allegation. Fieldfisher appealed, arguing that the Tribunal had substituted its own view of the evidence and misdirected itself on procedural fairness. The central issue was the proper boundary between review of an employer’s decision and a tribunal’s own assessment of the underlying evidence.

1. Appeal allowed. The Employment Tribunal’s liability judgment was set aside and the case remitted to a differently constituted Tribunal.
2. The dismissal reason was the employer’s genuine belief that the claimant had committed two acts of misconduct. Both were conduct reasons under sections 98(1) and 98(2) of the Employment Rights Act 1996. The alleged sexual assault in July 2023 formed no part of that reason. The section 98(4) assessment therefore had to address whether the employer acted reasonably in treating the actual dismissal reason as sufficient.
3. For a misconduct dismissal, the Tribunal asks whether the employer genuinely believed the employee guilty, held that belief on reasonable grounds, and carried out as much investigation as was reasonable. The assessment also asks whether the employer’s assessment of the evidence and decision fell within the band of reasonable responses, as explained in British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods v Jones [1983] ICR 17.
4. The Tribunal crossed the boundary between review and substitution. It found that the first colleague had deliberately lied about the separate July allegation, relying on a third party’s description of CCTV footage. It then treated that finding as having a “negative pull” on the January allegation and reassessed the employer’s evidence, including the colleague’s account, a witness’s evidence and WhatsApp messages. The Tribunal’s task was to decide whether the employer had reasonable grounds for its belief after reasonable inquiry, not to reach its own conclusion on that evidence. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 concerned an asylum tribunal acting as primary fact finder, a materially different role. The Tribunal’s approach was also contrary to the principle in Morgan v Electrolux Limited [1991] ICR 369 that a tribunal must not substitute its own evaluation of evidence before the decision-maker.
5. That error led to the Tribunal’s erroneous conclusion that the employer lacked reasonable grounds to find the January misconduct. The EAT did not determine the separate perversity ground. It also considered it unnecessary to determine the procedural fairness ground, while observing that relying on procedural matters unrelated to the actual dismissal reason was an error under section 98(4). Whether there was material procedural unfairness on a matter forming part of the dismissal reason remained for the remitted hearing.

1. Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal’s liability judgment and remitted the case to a differently constituted Tribunal. [2026] EAT 99 .
2. Employment Tribunal (London Central): Held that the claimant’s dismissal was unfair. The decision was set aside on appeal; no citation for the Tribunal’s judgment is stated.