Olivier Argence-Lafon v Ark Syndicate Management Limited

In deciding fairness under section 98(4) of the Employment Rights Act 1996, an employment tribunal must assess the dismissal process as a whole, including any internal appeal. It need not separately spell out the appeal’s effect where its reasons, read fairly and as a whole, show why the appeal did not alter the result.

An appeal may be relevant to a defect in notice of an allegation. It cannot, on the facts found, remedy a separate basis of unfairness where the employer failed to investigate disputed performance objectives and the appeal did not address that failure. Appellate courts must respect the tribunal’s fact-sensitive assessment unless there is an express misdirection or clear evidence of one.

The appellant, a senior underwriter whose employment transferred to the respondent under TUPE, brought claims for whistleblowing detriment, automatic unfair dismissal and ordinary unfair dismissal. The Employment Tribunal dismissed the whistleblowing claims but upheld the ordinary unfair-dismissal complaint.

The Employment Appeal Tribunal, [2025] EAT 125, dismissed the employee’s appeal on the whistleblowing issues. It allowed the employer’s cross-appeal on ordinary unfair dismissal and remitted that claim to the tribunal, holding that the tribunal had failed to consider whether the internal appeal affected fairness.

Permission was granted only on the employee’s challenge to that ruling. The central issue was whether the tribunal had erred in law by not expressly considering the internal appeal when deciding that the dismissal was unfair.

1. Appeal allowed. The Employment Appeal Tribunal erred in treating the Employment Tribunal as having failed to consider the internal appeal. The tribunal’s reasons had to be read as a whole, against the pleaded case, agreed issues and detailed factual findings.

2. An appeal from an Employment Tribunal is confined to law. Absent an express misdirection, or the clearest evidence of one, an appellate court must assume that the tribunal understood and applied the law. The tribunal was not required to state matters that were apparent from its reasons read fairly and in context.

3. Taylor v OCS Group Limited [2006] EWCA Civ 702 establishes that the statutory fairness inquiry concerns the dismissal process as a whole, including a relevant internal appeal, whether that appeal is described as a rehearing or a review. That principle did not require a separate analysis of the appeal in this case.

4. The appeal could potentially have mattered to the lack of advance notice of the allegation that trust and confidence had broken down. But dismissal also rested on the separate performance and PIP strand. The tribunal had found that the employer had not reasonably investigated whether the disputed objectives were appropriate and that such an investigation might have produced a different result.

5. The internal appeal did not investigate or otherwise address that distinct performance strand. The tribunal was therefore entitled, as an industrial jury, to find the dismissal unfair under section 98(4) of the Employment Rights Act 1996. Its omission of an express reference to the appeal in its conclusions was not an error of law. The EAT’s contrary ruling and remittal could not stand.

• Court of Appeal (Civil Division): Allowed the employee’s appeal and rejected the Employment Appeal Tribunal’s conclusion that the Employment Tribunal had erred by failing to consider the internal appeal.

• Employment Appeal Tribunal: In [2025] EAT 125 , dismissed the employee’s whistleblowing appeal, allowed the employer’s cross-appeal on ordinary unfair dismissal, and remitted the unfair-dismissal claim.

• Employment Tribunal: Dismissed the whistleblowing detriment and automatic unfair-dismissal claims, but upheld the complaint of ordinary unfair dismissal.