An employment tribunal made an ‘erroneous substitution…of its own view of the evidence’ when finding international firm Fieldfisher LLP was wrong to dismiss a senior associate, an appeal has found. 

Djamshid Rustambekov, a senior associate in Fieldfisher’s dispute resolution department, was dismissed following the firm’s disciplinary process, which found he had sexually harassed a colleague and acted inappropriately toward a different colleague. 

Rustambekov brought a claim of unfair dismissal against the firm and the employment tribunal found in his favour. Fieldfisher appealed to the Employment Appeal Tribunal.

In Fieldfisher LLP v Djamshid Rustambekov, EAT president Lord Fairley allowed the appeal and set aside the employment tribunal’s finding. He found the ET had ‘relied upon evidence about an incident that formed no part of the reason for dismissal'. 

The judgment said the ET erred in substituting its own conclusion for that of the firm about the complainant’s credibility in relation to one of the incidents investigated. ‘That step in reasoning was inappropriate,’ it added. ‘The allegation of sexual assault ultimately formed no part of the reason for the dismissal.’

Finding that the ET’s judgment must be set aside, the judge said the tribunal had failed ‘to recognise the limits of its fact-finding role’. A tribunal ‘must not substitute its own evaluation of the evidence that was before the decision-maker’.

He added: ‘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 sexually harassed [a colleague] in January 2023. Since that conclusion was a material part of to the tribunal’s reasons for concluding that the dismissal was unfair, its judgment to that effect must be set aside.’

The case was remitted back to the ET for re-determination by a differently constituted tribunal.