Unfair dismissal, race discrimination, and whistleblowing: three cases employers need to know

Can a tribunal substitute its own view of a dismissal decision?

A tribunal must not substitute its own assessment of the evidence for that of the manager who actually made the dismissal decision. The Employment Appeal Tribunal made that point on 4th August 2026 in Fieldfisher LLP v Djamshid Rustambekov [2026] EAT 99, allowing the law firm's appeal.

Mr Rustambekov, a senior associate in Fieldfisher's dispute resolution team, was dismissed following a disciplinary process into alleged sexual misconduct, and initially succeeded in an unfair dismissal claim. Lord Fairley found the original tribunal had relied on an incident that formed no part of the actual reason for dismissal, and had improperly preferred its own view of a witness's credibility over that of the partner who conducted the disciplinary process and had spoken to the witness directly. The case was remitted to a freshly constituted tribunal. Employers should keep this ruling in mind when defending unfair dismissal claims: a tribunal's role is to assess whether the decision-maker's reasoning was reasonable, not to re-run the investigation itself.

When does workplace stereotyping amount to race discrimination?

Attributing a generic national or ethnic “profile” to an employee's conduct can amount to direct race discrimination. The Employment Appeal Tribunal confirmed this on 4th August 2026 in Johnson and Johnson Medical Ltd v Fayokun [2026] EAT 118.

Marcus Pilgerstorfer KC, sitting as a Deputy High Court Judge, upheld the Employment Tribunal's finding that a senior manager had directly discriminated against Ms Fayokun by repeatedly linking her conduct to stereotypes about “Nigerian” working traits. The employer's challenge to the substantive discrimination findings failed, but its appeal on the tribunal's decision to extend time for those complaints succeeded, and that issue was remitted for fresh consideration. Employers should treat generalised comments linking an employee's conduct to their nationality or ethnicity as a clear discrimination risk, regardless of intent.

When can a tribunal refuse interim relief in a whistleblowing case?

A tribunal cannot refuse interim relief simply because the facts are disputed; it must properly assess whether the claimant has a “pretty good chance” of success on the merits. The Employment Appeal Tribunal made that clear on 10th August 2026 in Duffy v BXTR 3 Ltd (t/a House of Gods) [2026] EAT 119.

Mr Duffy, a hotel worker who said he was dismissed for raising safety concerns, had been refused interim relief by a Glasgow tribunal. Recorder Fraser Butlin held the tribunal had wrongly treated the existence of factual disputes as decisive, rather than carrying out the summary assessment required under section 129(1) of the Employment Rights Act 1996. Employers facing interim relief applications in whistleblowing cases should be aware that disputed facts alone will not defeat a claimant's application; the tribunal must still weigh the merits.

If you have and questions about the points raised here, please get in touch and see how our employment team can help on 01635 896 336 or email employment@fentonelliott.co.uk

Disclaimer: The content of this website article is for general awareness and insight. This is not legal or professional advice and readers should not act upon the information provided, they should seek professional advice based on their own particular circumstances. The law may have changed since this article was published.