Employment tribunal and court judgments | October 2025

• Mr Alom was accused by his employer FCA of sending an anonymous, harassing email to a colleague and for breaching confidentiality principles in a separate email to managers.
• Mr Alom denied that he ever sent the email, however the FCA concluded he was the author as the email contained information that only he could have known.
• Mr Alom sued the FCA for unfair dismissal, discrimination and victimisation after being dismissed for gross misconduct.

In respect of his unfair dismissal claim, the claimant contended that the decision to dismiss was defective as interview transcripts had not been disclosed and a forensic computer search was relied upon, as well as arguing that the decision to dismiss was predetermined and HR had influenced the outcome.

The ET found it reasonable for the FCA to believe Mr Alom was the author and deemed the dismissal fair and based solely on his conduct.

The Claimant appealed.

The EAT tribunal upheld the ET’s ruling and confirmed that the dismissal was entirely fair. The EAT also provided some useful commentary and clarity on the following key points:

• Interview transcripts: Minor procedural flaws in workplace disciplinary investigations don’t singlehandedly mark a dismissal as unfair. In this instance, Mr Alom claimed the investigation was unfair because he was not provided with full interview transcripts. The EAT disagreed, noting that the transcripts concerned unrelated matters that were not pursued. As long as the employee has been provided with adequate information about the allegations under consideration, that suffices.
• Computer search: Mr Alom claimed some material had been obtained through a computer search that may have breached his Article 8 ECHR Rights (that is the right to respect for private and family life, home, and correspondence), which made the dismissal unfair. However, the EAT confirmed that because this evidence was not relied upon during the disciplinary process this did not influence the fairness of the dismissal.
• HR script: Although the decision maker in this case used an HR-prepared script, the EAT found no evidence of pre-determination or undue influence.

This case serves as a timely reminder to employers that minor procedural flaws in a disciplinary process will not, in themselves, render a dismissal unfair. Tribunals will focus on the substantive fairness and underlying reasons for dismissal, rather than allowing technical or overly pedantic arguments to undermine a just outcome. It still pays, however to seek to make pre-prepared scripts legally privileged where possible by involving your employment lawyers in the preparation of them (and/or make internal scripts explicit in terms of spaces left for decisions that need to be reached by the manager responsible).

• The Claimant, an embryologist, had made protected disclosures.
• This led to a dispute with her line manager who began a disciplinary process.
• The Claimant was later dismissed following allegations of misconduct, and contended that her dismissal and subsequent treatment were linked to having raised whistleblowing concerns.
• The investigation hearing, which ultimately led to the Claimant’s dismissal, was heard by a different manager who was new to the employer’s organisation and was unaware of the protected disclosures. In reaching the decision to dismiss, the decision maker instead relied heavily on material which had been prepared by the Claimant’s line manager.
• The Claimant subsequently brought a claim for automatic unfair dismissal against the company employer, as well as a claim of detriment directly against her line manager, the individual who dismissed her, and her employer.

The Employment Tribunal dismissed her claim of automatic unfair dismissal but determined that liability for whistleblowing detriment attached to both the employer and the dismissing manager, notwithstanding that the manager had acted in good faith.

Both parties appealed.

The judgment was overturned.

The EAT decided that when considering detrimental dismissal, there cannot be a ‘composite’ approach, whereby the motive of one individual is combined with act/doing of another. Personal liability only arises where the same individual both commits the act and possesses the proscribed intent. The EAT held that combining one individual’s actions (the dismissing manager) with another’s motives (the liner manager) would be improper, as it could render innocent decision-makers personally liable. As a result, the EAT held that the dismissing manager was not in fact personally liable for whistleblowing detriment.

The EAT has sent part of the case back to the Employment Tribunal to consider whether the earlier manager had intentionally interfered with the process or covered up the real reason for the dismissal.

This decision offers reassurance that managers who act in good faith and exercise independent judgment will not face personal liability. However, employers may still be held accountable (through vicarious liability) where others within the organisation have acted improperly or attempted to conceal the true reason for a dismissal.

Employers should ensure that disciplinary and whistleblowing procedures are conducted independently, transparently, and with clear documentation throughout. It is also essential to ensure that investigations are handled by individuals who have no involvement with the case. Likewise, employees who suspect a link between protected disclosures and any action taken against them should make that clear, and provide details, in the relevant processes.

• The appellants had successfully defended Employment Tribunal claims brought by a Claimant who alleged employee or worker status.
• The Tribunal found that the Claimant was, in fact, self-employed.
• Following their success, the appellants sought a wasted costs order against the Claimant’s barrister, alleging that his conduct during proceedings had been improper or negligent.

The ET refused the application, finding that while there were some shortcomings in the barrister’s conduct, these did not meet the high threshold required for a wasted costs order. The appellants appealed the order.

The EAT rejected the appeal and highlighted that although the barrister’s handling of the case was not perfect, it did not amount to conduct that was improper, unreasonable, or negligent. The ET had correctly applied the high bar for wasted costs – which requires behaviour “akin to an abuse of process” – and its decision was sound and within its discretion. The EAT reaffirmed the high threshold for granting wasted costs orders against legal representatives.

This case reinforces that wasted costs orders are reserved for truly exceptional cases involving serious misconduct by a representative. Minor errors, poor judgment, or weak arguments will not usually meet the threshold. Wasted costs orders should only be considered and pursued where there is clear evidence of unreasonable or improper behaviour, and not simply because the other side’s case was unsuccessful.

This case has helped shed some light on whether (and if so when) people working through their own personal service company (PSC), are considered to be employees or workers.

• Ms Maclean, the Claimant, worked at PELC’s urgent treatment centres from August 2018 in a role responsible for assessing patients and directing them to appropriate care.
• PELC had contracted with Ms Maclean through her PSC on the basis that she was self-employed.
• Ms Maclean terminated her arrangement with PELC in March 2023.
• Ms Maclean brought claims against PELC for which she needed to establish that she had the employment status of either an employee or worker of PELC (notwithstanding what her contract with PELC asserted).
• Ms Maclean argued that her PSC was simply a payment mechanism set up at PELC’s request and that she was, in real terms, working personally for PELC.

The ET agreed with Ms Maclean and found that she was both a worker and employee for the following reasons:

• The contract was in fact between PELC and Ms Maclean personally (not between PELC and her PSC).
• Ms Maclean was personally required to do the work herself; the ET decided that there was no genuine right to send a substitute notwithstanding that there was a right to do so drafted into the agreement. The ET felt it was impractical given Ms Maclean’s role, and it was never used.
• Ms Maclean was integrated into PELC’s organisation and subject to its control.
• There was a mutual obligation (i.e. an obligation on PELC to offer work and on Ms Maclean to accept it) each time she accepted work.

PELC Ltd appealed to the EAT.

The EAT agreed that the contract was with Ms Maclean personally, but found the tribunal’s reasoning for classifying her as a worker and employee was unsupported.

The EAT concluded that there was no mutuality obligation throughout the relationship. Evidence showed PELC was not obliged to offer work, and Ms Maclean was free to decline it, with shifts allocated via a bidding system and no regular shift pattern. Ms Maclean did not get every shift she asked for and there was no assurance given to Ms Maclean about getting a minimum number of working hours, etc.

The EAT also felt that the Tribunal was wrong to conclude that Ms Maclean was contracted to provide the services personally and/or that the substitution clause was impracticable. The fact that a right of substitution clause has not been used and/or that any substitute would need to meet some knowledge and professional qualifications does not make it disingenuous.

The case was therefore sent back for reconsideration.

Genuinely self-employed people have very few employment rights. Parties may start out on the premise of self-employment (which often the individual finds attractive for tax reasons) but this may be challenged where the relationship changes over time and/or the individual thinks they have been mistreated and they may seek to argue that, for employment purposes, they were a worker (which requires a contract for personal service with someone not running their own business) and/or an employee (which requires a contract for personal service with someone not running their own business over whom the other contracting party has control and where there is some obligation to offer work and for it to be accepted).

In order for the paperwork to correctly match to the employment status for employment rights purposes. You should ensure that contract terms are clear, carefully reviewed, and truly reflect the working relationship in practice. Clauses relating to substitution and flexibility must be assessed with care, as tribunals will look beyond the written terms to the reality of how the arrangement operates on the ground.