Employment tribunal and court judgments | February 2025

The Claimant applied for his role as a Border Force officer with the Respondent in May 2019. Prior to this, the Claimant had worked for the Department for Work and Pensions since September 2016, and before this had worked for the Home Office from 2002 to 2016.

The application form for the Border force role included a free-text box in which applicants could input their employment history. The form did not set out guidance for what specifically should be included. In this text box the claimant only provided the years he was employed in his previous roles, rather than listing the specific months he started and ended each role. He did not disclose the fact that there was a three-month gap between his government roles, nor that he had previously been dismissed by the Home Office for gross misconduct in June 2016.

Upon discovering the Claimant’s previous dismissal and omission, the Respondent dismissed the Claimant for gross misconduct, which led to the Claimant bringing a claim for unfair dismissal. The employment tribunal found that his dismissal was fair, and the Claimant subsequently appealed this decision.

The Claimant contended that the application form was ambiguous, lacking specific direction on how it should be completed, and therefore it was up to each candidate on what information they considered relevant and should be included. Upon weighing up the evidence, the Employment Appeal Tribunal ultimately dismissed the appeal on the basis that it considered the tribunal had sufficiently scrutinised the process the Respondent followed, concluding that the decision to dismiss fell within the band of reasonable responses.

Despite the outcome, this case serves as a reminder for employers that their application forms should be clearly worded to inform candidates exactly what information must be included in order to mitigate the risk of employees withholding information. This is particularly important with the upcoming Employment Rights Bill, as day one rights such as unfair dismissal will be introduced (subject to some form of statutory probation period, however the details of this currently remain unclear), which means employers may see an increase in unfair dismissal claims which are factually similar to the present case. Watertight instructions on application forms will reduce the number of claims brought, saving your business time and costs. Whilst the employer ultimately won in this case, substantial legal fees and operational costs would have been incurred which could otherwise have been avoided had clear guidance/expectations been set out.

The claimant, Miss Graham, was employed by Eddie Stobart Limited as a planner. In October 2021, she informed her employer that she was pregnant. Just over six months later in May 2022, she was made redundant while on maternity leave and was unsuccessful in securing an alternative role.  Miss Graham submitted a grievance, but due to an email firewall issue, her employer never received it. Miss Graham submitted several claims to the Employment Tribunal, including maternity discrimination. The Employment Tribunal agreed that Miss Graham had been subjected to maternity discrimination and awarded £10,000 for injury to feelings.

On appeal, the EAT found the Employment Tribunal’s reasoning inadequate and the award excessive. It determined Miss Graham’s distress was relatively limited and substituted the award with £2,000 plus interest.

This decision underlines the necessity for claimants to provide sufficient evidence when assessing injury to feelings to ensure awards fall within the correct Vento band. Tribunals should be assessing the claimant’s description of their injury, the duration of emotional distress, the impact on work and personal life, and the visibility and severity of discrimination. While the impact on the claimant’s life, including professional and personal effects, is key in determining the appropriate award, awards must compensate for harm rather than punish the employer.