Employment Law Update - October 2025

In this month’s bulletin, we explore three recent cases. The first two cases remind employers of the Tribunal’s “in the round” approach to determining whether a dismissal is unfair and the third case is another development in the case law on personal liability for those who are involved in dismissing whistleblowers. There is also a useful lesson to those who use scripts for disciplinary hearings.

Unfair Dismissal – the use of scripts and other procedural issues  

In Alom v Financial Conduct Authority, the EAT reminded employers that the test for unfair dismissal is whether a dismissal falls within a range of reasonable responses, with this range applying to the procedure that is adopted as well as the substantive decision.

The Claimant was dismissed for sending an anonymous email to a colleague that was found to be harassment. He denied sending the email, but did accept that if he had sent it, it would have amounted to gross misconduct.

The Tribunal found that it was a decision open to the employer to find that the Claimant had sent the email and that a decision to dismiss was reasonable, notwithstanding some minor procedural issues.  

The Claimant appealed on a number of grounds, and in particular in respect of procedural failings by the employer. The EAT did not uphold his appeal:

• The Claimant complained that he had not been provided with a full transcript of the interviews that took place with the person accusing him of harassment. The EAT found that fairness requires that the employee is provided with “sufficient information” to enable them to respond to the charges. The EAT concluded that in this case, the Claimant had been provided with “sufficient information” and that it was not a strict requirement that he be provided with a full transcript of all interviews
• The Claimant complained that his employer had breached his Article 8 right to privacy by searching his computer. The EAT concluded that even if the search of his computer amounted to a disproportionate infraction of his right to privacy:
  • That was not a free-standing complaint he could bring to the Employment Tribunal
  • The results of the computer search were not material to the decision to dismiss, so did not lead to the dismissal being unfair
• The Claimant claimed that the use of a script for the disciplinary hearing indicated that a decision had already been made. The EAT disagreed and said that the evidence provided by the dismissing officer and the transcript of the hearing indicated that he had not pre-judged the matter

The EAT therefore found that the Claimant had been fairly dismissed.

Whilst this decision reflects the principle that not every procedural defect will make a dismissal unfair, particularly if they have no material impact on the ultimate decision, there are some valuable lessons in this decision for employers going through disciplinary processes. 

The use of scripts for disciplining officers is one of note.  In this case, as is not uncommon, a script had been prepared by HR, but the phrasing of some of the questions in the script drew particular scrutiny and came close to suggesting a view had already been formed as to the guilt of the Claimant. Whilst the EAT commented that scripts may be of use to guide a disciplinary meeting, those drafting them should ensure they do not pre-judge issues. It is also important to note that scripts (and any earlier drafts of such scripts) will be disclosable documents and will be made available to claimants who make unfair dismissal claims.

---

Unfair Dismissal – an “end-to-end approach from Tribunals”

In Ashley v Walk the Walk Family Support Service Community, the EAT explored two grounds of appeal. One probably of more interest to employment lawyers and one of particular interest to employers.

Unfair dismissal – assessment “from end-to-end”

The Claimant was the Chief Executive Officer of a not-for-profit community interest company. A number of conduct issues were investigated (relating to bullying, financial record-keeping and data protection irregularities). Mr Ogden (one of the directors of the employer) took a lead role in the investigation and was also found by the Tribunal to be the dismissing officer. 

The Claimant was offered the right to appeal, but did not see the appeal through to its conclusion.

The Tribunal’s decision included the following comment: “We were concerned with Mr Ogden’s role, and that of other directors, in both the investigation and the claimant’s dismissal. There was no clear distinction of the separate strands of investigation and dismissal to this disciplinary process. Had the claimant responded to the allegations with more than a cursory rejection then the respondent might have been in trouble on this point. However, we note that the appeal was offered before a wholly independent human resources consultant, so the respondent was keen to correct this procedural irregularity.”

The Tribunal found that the Claimant was fairly dismissed, but she appealed on the ground that, whilst it is established case law that an appeal by way of re-hearing could remedy a procedurally unfair dismissal, in her case the appeal had not actually happened, so the mere offer of an appeal could not remedy the defect of having the same investigating and disciplining officer.

The EAT rejected the appeal. It found that:

• Whilst it is recommended that there be separate investigating and disciplining officers, this is not an absolute rule. The Tribunal had expressed concern about what happened in this case and referred to it as a procedural irregularity, but its wording was not such as to amount to a finding of unfair dismissal on this ground alone
• The whole process should be looked at in the round or “end-to-end”. In this case, the Respondent had offered an appeal, had allowed it to be pursued out of time, agreed to all of the requests from the Claimant (including the identification of three external independent HR consultants suitable to conduct the appeal) and the appeal had only not taken place because the Claimant said that she had run out of money to pay her solicitors and did not want to proceed further

Where disciplinary issues occur at a senior/board level, it can often be difficult to have entirely separate investigating, disciplining and appeal officers. Organisations should try to do so, but we are reminded here that where it is impossible to do so, there may be other fair ways of dealing with the process.

Agreed Lists of Issues

It is common for Employment Tribunals to adopt an agreed list of issues during the case management process in order that all parties attend the final hearing with a clear understanding of what the issues are.

It is not uncommon for issues to arise then at the final hearing when new advocates, or a different judge, consider that the issues are actually different to those set out in the list of issues and we have seen a number of cases in recent years as to the extent to which the Judge hearing the case is bound by an earlier agreed list of issues.

The Claimant argued that in this case, the Tribunal should have revisited and amended the List of Issues in order to discharge its duty to determine the case in accordance with the law and the evidence.

The EAT dismissed the appeal and found that:

• The Claimant was legally represented when the List of Issues was agreed at a preliminary case management hearing
• The Claimant was legally represented at the full tribunal hearing, at which the List of Issues was discussed at the outset and there was no application at that stage to amend the List
• This case did not fall into the exceptional category in which it would have been in the interests of justice and necessary to revisit the List of Issues.

---

Whistleblowing – no personal liability for a dismissing officer who did not know of the whistleblowing

In Henderson v GCRM Ltd, the EAT was asked to make a decision that related to two important elements of whistleblowing law that have arisen due to recent cases:

• The first principle is that where an employee is unfairly dismissed because they are a whistleblower, the individual dismissing officer can be personally liable for subjecting the whistleblower to a detriment by dismissing them. This principle arose in the Court of Appeal’s decision in Timis & Anor v Osipov and was important because the employer in that case was insolvent. The decision of the Court of Appeal left the individual directors who dismissed the whistleblower personally liable for considerable compensation
• The second principle is that a dismissal can be an automatically unfair dismissal because it relates to an act of whistleblowing even when the dismissing officer was not aware of the whistleblowing. This scenario arose in the case of Royal Mail Group Ltd v Jhuti in which the Supreme Court upheld a decision of automatic unfair dismissal where a senior manager who was aware of the whistleblowing had manipulated the investigation process such that it led to the dismissal of the whistleblower

The recent case of Henderson v GCRM found the Court of Appeal having to deal with a combination of these two principles: where a dismissing officer is not aware of the whistleblowing, but the dismissal was unfair because another manager had manipulated the process to secure the dismissal of the whistleblower, can the unknowing dismissal officer be personally liable?

The facts of the case were that a whistleblower was subject to a disciplinary investigation. This investigation was initiated by her line manager and conducted by Ms Young. The whistleblower was invited to a disciplinary hearing, with the hearing to be conducted by her line manager. The hearing date changed and responsibility for the hearing passed to a different manager. 

This different manager was not aware of the whistleblowing and, as far as she was concerned, dealt with the allegations on their merits and decided to dismiss.

The Claimant alleged that she had been automatically unfairly dismissed, on the basis that she was dismissed because of her protected disclosure, citing the principle in Jhuti and arguing that even though the dismissing officer was not aware of the protected disclosure, she had nevertheless been influenced by the acts of the line manager and therefore the reason for her dismissal was the protected disclosure.

The Tribunal agreed and found that in the circumstances, even though the dismissing officer was not aware of the protected disclosure, the reason for the dismissal was the protected disclosure. It reached this decision because:

• The line manager had initiated the disciplinary investigation and had been the originally intended disciplining officer
• The dismissing officer relied heavily on the documents and guidance provided by Ms Young and the line manager
• The dismissing officer spoke to the line manager during an adjournment in the disciplinary hearing

The Tribunal concluded that Ms Young and the line manager were themselves motivated to initiate and then to conduct a disciplinary investigation against the claimant, and to interact with the dismissing officer, because the claimant had made a protected disclosure.

The EAT were then asked to consider whether the dismissing officer should be personally liable for the detriment of dismissing the Claimant (in the same way as the dismissing officer had been found personally liable in Timis v Osipov).

The EAT concluded that the Jhuti principle should not be extended to make the dismissing officer personally liable in this case.  It concluded that it was not the intention of parliament to impose potential unlimited liability upon innocent individuals who have not been personally motivated by a protected disclosure (because they were not aware of it). The law already provided remedies to claimants against the company (for unfair dismissal) and against individuals who sought to manipulate decision-makers (for unlawful detriment). There is no need to provide a further remedy against an innocent decision-maker.

This decision is a useful reminder of the intricacies of whistleblowing claims and the need to ensure that if an individual has made a protected disclosure, care should be taken to ensure that no undue influence is in the hands of those motivated to take action against a worker who has made a protected disclosure.