‘Erroneous conclusion’
The Employment Appeal Tribunal (EAT) has set aside a ruling that Fieldfisher unfairly dismissed a senior associate for sexual misconduct, finding that the original tribunal wrongly substituted its own view of the evidence for that of the partner who made the decision to sack him.
Djamshid Rustambekov, a senior associate in Fieldfisher’s dispute resolution team, was dismissed in November 2023 after the firm concluded that he had sexually harassed a colleague and acted inappropriately toward a different colleague.
A third, more serious allegation — that Rustambekov sexually assaulted one of the women, referred to as C1, in January 2023 — also emerged during the firm’s investigation. The partner who decided to dismiss him accepted that part of C1’s account of what happened immediately before the incident was false, but concluded it was not a deliberate lie.
The employment tribunal (ET) disagreed, finding there was no basis for that conclusion and that the “negative pull” of C1’s dishonesty “wholly undermined” her allegation. It ruled the disciplinary process had been defective and that the dismissal was unfair.
Fieldfisher appealed to the EAT. In Fieldfisher LLP v Djamshid Rustambekov, Lord Fairley, president of the EAT, allowed the appeal, finding the ET had relied on evidence about an incident that “formed no part of the reason for dismissal”.
The judge found that the tribunal had wrongly substituted its own conclusion about C1’s credibility for that of the decision-maker, who had the benefit of speaking to C1 directly. The ET’s view, by contrast, rested on a single third-party description of CCTV footage, which Lord Fairley said was “not an appropriate basis” for overturning the original assessment that C1 was merely unreliable rather than deliberately untruthful.
Concluding that the ET’s judgment must be set aside, Lord Fairley said:
“[A] tribunal must not substitute its own view of reasonableness is that it must not substitute its own evaluation of the evidence that was before the decision-maker. That, however, was exactly what the tribunal did in this case. That substitution led it to its erroneous conclusion that the respondent did not have reasonable grounds to conclude that the claimant had committed one of the acts of misconduct for which he was dismissed. As that conclusion was a material part of to the tribunal’s reasons for concluding that the dismissal was unfair, its judgment to that effect was set aside.”
The case has been remitted for re-determination by a differently constituted employment tribunal.
