EAT: Employment Appeal Tribunal Sets Aside Ruling Over Sacking of Associate

• The Employment Appeal Tribunal (EAT) has set aside a ruling that Fieldfisher unfairly dismissed senior associate Djamshid Rustambekov.
• Rustambekov was dismissed in November 2023 following allegations of sexual harassment and inappropriate conduct towards colleagues.
• The EAT found the original employment tribunal (ET) wrongly substituted its own view of witness credibility for that of the firm's decision-maker.
• The ET's assessment of a key witness's dishonesty was based on a third-party description of CCTV footage, which the EAT deemed an inappropriate basis for overturning the employer's original assessment.
• The case has been sent back for re-determination by a different employment tribunal.

A tribunal must not substitute its own view of reasonableness, nor its own evaluation of the evidence that was before the decision-maker.

Fieldfisher, a prominent law firm, dismissed senior associate Djamshid Rustambekov in November 2023 following an internal investigation into allegations of misconduct. The firm concluded that Mr. Rustambekov had sexually harassed one colleague and behaved inappropriately towards another. A more serious accusation also surfaced during the inquiry, alleging that Mr. Rustambekov sexually assaulted a woman, identified as C1, in January 2023.

The partner responsible for the dismissal decision acknowledged that certain aspects of C1's account regarding the moments immediately preceding the incident were inaccurate. However, the partner determined that these inaccuracies did not constitute deliberate falsehoods. Despite this assessment, an employment tribunal (ET) subsequently disagreed, finding no basis for the partner's conclusion and asserting that C1's perceived dishonesty entirely undermined her allegation. Consequently, the ET ruled that the disciplinary process had been flawed, leading to an unfair dismissal.

Fieldfisher challenged the employment tribunal's decision, bringing the matter before the Employment Appeal Tribunal (EAT). In a significant development, the EAT, presided over by Lord Fairley, allowed the firm's appeal, effectively setting aside the earlier ruling that Fieldfisher had unfairly dismissed Mr. Rustambekov. This decision, in the case of *Fieldfisher LLP v Djamshid Rustambekov*, marks a crucial re-evaluation of the initial tribunal's approach.

The EAT found that the original tribunal had made a fundamental error by substituting its own assessment of the evidence for that of the partner who made the initial dismissal decision. This intervention by the Employment Appeal Tribunal sets aside the ruling over the sacking of the senior associate, highlighting the boundaries of a tribunal's review powers in such cases.

Lord Fairley, in his judgment, identified several critical flaws in the employment tribunal's reasoning. He noted that the ET had relied on evidence pertaining to an incident that was not a part of the stated reasons for Mr. Rustambekov's dismissal. More significantly, the EAT president determined that the ET had improperly replaced the decision-maker's conclusion regarding C1's credibility with its own. The original decision-maker had the direct benefit of speaking with C1, allowing for a nuanced assessment of her account.

In stark contrast, the employment tribunal's view on C1's truthfulness was based solely on a third-party description of CCTV footage. Lord Fairley explicitly stated that this was an insufficient foundation for overturning the initial assessment, which had deemed C1 merely unreliable rather than intentionally untruthful. He emphasized a core legal principle: a tribunal must not substitute its own view of reasonableness, nor its own evaluation of the evidence that was before the decision-maker. This, he concluded, was precisely what the employment tribunal had done in this case. This substitution, he found, led the ET to its mistaken finding that Fieldfisher lacked reasonable grounds for concluding Mr. Rustambekov had committed one of the acts of misconduct for which he was dismissed.

Given that the employment tribunal's erroneous conclusion was a material component of its rationale for determining the dismissal was unfair, the EAT ruled that the entire judgment must be set aside. Lord Fairley's decision means that the case will now be remitted for a fresh determination by a newly constituted employment tribunal.

This outcome emphasizes the importance of tribunals adhering strictly to their role of reviewing the reasonableness of an employer's decision, rather than re-hearing the case and substituting their own judgment for that of the employer. The Employment Appeal Tribunal sets aside the ruling over the sacking of the Fieldfisher associate, ensuring the legal process for such complex employment disputes follows established procedural guidelines.

Source: Original reporting via Legal Cheek.