Frontline UK Employment Law Update Edition 40 2025 - Case Updates

1. Zen Internet Limited v Stobart [2025] EAT 153
2. Commerzbank AG v Mr Damilare Ajao [2025] EWHC 2904 (KB)
3. O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust [2025] EAT 156
4. Golam Chowdhury v Network Rail Infrastructure [2025] EAT 132

1. Zen Internet Limited v Stobart [2025] EAT 153 [LINK]

In this case, the Employment Appeal Tribunal ("EAT") partly allowed the Respondent’s appeal against an Employment Tribunal (“ET”)'s finding that the dismissal of its CEO was procedurally unfair. The EAT upheld the unfairness finding, but the question of when a fair dismissal would have occurred under the Polkey principle was returned to the ET.

The Claimant was employed as the Respondent’s CEO from October 2018 to March 2023, having been recruited to drive significant revenue and profit growth. However, from 2020 to 2023, the Respondent made losses each year, despite the losses reducing annually. In February 2023, the founder and majority shareholder of the Respondent proposed swapping roles with the Claimant, stating he had "lost confidence in [the Claimant’s] ability to lead the business back to sustainable profitability". The Claimant did not accept the role swap (with substantially reduced remuneration), and he was subsequently dismissed due to performance concerns in March 2023.

The ET concluded that the reason for dismissal was capability, specifically the Claimant’s performance and capacity to achieve profitability. However, it considered the dismissal procedurally unfair because the Respondent had not followed its own procedures (which mirrored the ACAS Code of Practice). In particular, the Respondent had failed to follow a formal process to establish the facts, and the Claimant was not given the opportunity to answer the issues raised and put his case, nor appeal these findings.  The ET acknowledged sympathy for the Respondent dealing with a CEO in a senior leadership role, but, despite his seniority, the Claimant was still an employee subject to the company's policies and procedures. 

The ET considered whether the Claimant’s compensation should be adjusted to reflect the likelihood that he would have been dismissed fairly in any event, had a fair procedure been followed (the Polkey principle).  The ET decided that, had a fair procedure been followed, the Claimant would have been dismissed by no later than 31 May 2023 and should be compensated only for loss up to that date. 

The EAT dismissed the Respondent’s appeal against the unfairness finding. Whilst there is no absolute requirement that particular procedural steps must be taken in every capability case, and exceptional cases may exist where warnings would be "utterly useless", or cases where it would be unnecessary in light of an employee’s seniority, the EAT decided the ET had correctly found this was not such a case. 

However, it allowed the appeal on the Polkey finding which it decided was flawed on two grounds: 

1. The ET wrongly confined its consideration to the period from 17 March 2023 onwards, when it should have considered what would have happened from 24 February 2023 when concerns about the Claimant’s capability had crystallised; and
2. The ET failed to give adequate reasons for its conclusion that a fair dismissal would have taken place by 31 May 2023, without referring to any evidence to justify that timeframe.

The EAT returned the Polkey issue to the same ET for reconsideration.

This case reinforces that whilst there is no absolute requirement for an employee to be given warnings and opportunities to improve in every capability case, such steps remain the normal expectation and will help to mitigate potential legal risks on dismissal. The process and procedural steps may need to be tailored to the particular case. However, policies should be applied consistently and a senior position alone does not exempt an employer from following fair procedures. This case also confirms that when assessing what would have happened, had a fair procedure been followed, tribunals are not limited to looking forward from the date of dismissal but should consider the full picture of what would have occurred, had the employer acted fairly from the point the relevant concerns crystallised.

2. Commerzbank AG v Mr Damilare Ajao [2025] EWHC 2904 (KB) [LINK]

In this case, the High Court (“HC”) decided that a former employee was in serious contempt of court in making false statements of truth, giving false evidence on oath/affirmation, and that such falsities were designed to, and did, interfere with the due administration of justice. The proceedings were brought by the Claimant company against its former employee (the Defendant), arising from allegations he had made in Employment Tribunal (“ET”) proceedings.

The Defendant brought various ET claims against his employer and six individual respondents, including a colleague. All claims were dismissed by the ET.

The Claimant company subsequently brought contempt proceedings alleging that the Defendant had knowingly made false statements and given false evidence to the ET, particularly concerning allegations of sexual harassment against his colleague, and had manufactured a "work diary" to corroborate his claims. The Claimant alleged these false allegations caused the colleague to develop a serious psychiatric illness. 

When assessing the evidence and coming to its conclusion, the HC accepted the Claimant’s witness evidence in its entirety. In contrast, the evidence of the Defendant contained ‘such discrepancies, inconsistencies and impossibilities’ that it was ‘quite incapable of acceptance’ and that his evidence was ‘untrue, and deliberately so’. The HC concluded that there was not a ‘shred of truth’ in any of the allegations made against the Defendant’s colleague, and that the false allegations were a deliberate attempt to ‘deceive the Tribunal into awarding him damages, compounded by the lies which the Defendant has told to this court’. The HC also found that later entries were added into his work diary to bolster his ET claim. 

It concluded that the Claimant had proven, to the criminal standard, that the Defendant was guilty of serious contempt of court on multiple grounds. The Defendant was sentenced to 20 months in prison and ordered to pay £150,000 towards the Claimant’s costs.

This case illustrates the importance of integrity in court proceedings and the serious consequences which follow where there is dishonesty under oath. Cases like this are rare (particularly in the employment world), as the criminal standard of proof is high and a claimant may incur significant costs which may not be recoverable. However, this case is a good reminder to document and retain written contemporaneous evidence and follow comprehensive and objective internal processes where there are allegations of harassment, as this helped the employer (in this case) demonstrate what had actually occurred.

3. O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust [2025] EAT 156 – [LINK]

In this case, the Employment Tribunal ("ET") considered whether the use of a formal procedure to investigate disciplinary allegations disadvantaged a disabled employee whose PTSD affected her ability to recall events and whether an informal process would have been a reasonable adjustment.

The Claimant was employed by the Respondent as a ward manager from 2009 until her dismissal for misconduct on 30 March 2021. She was dismissed for failing to work her weekly contracted hours on certain occasions during September to December 2018, and to have claimed overtime for hours not worked on one occasion.

The Claimant was absent from work from late March 2019 until September 2019 following an operation and was only informed about the formal disciplinary investigation (in relation to her working hours) after her return to work in October 2019. After concluding its investigation and disciplinary process, the Respondent dismissed the Claimant in March 2021. 

The Claimant raised a number of complaints in the ET, including unfair dismissal and disability discrimination. The Claimant was disabled (for the purposes of the Equality Act 2010) as a result of PTSD, anxiety and depression. The ET concluded that the use of a formal procedure to investigate the misconduct allegations disadvantaged the Claimant because there was considerable delay before her version of events was sought. This prejudiced her ability to defend herself because her disability made it difficult for her to recall things. 

The ET decided that a reasonable adjustment would have been to have use an informal procedure at the start, and to have discussed any issues with the Claimant immediately or shortly after they were identified in early 2019.  However, it decided that this particular claim was out of time. 

On the unfair dismissal claim, the ET expressed concern that issues were not discussed with the Claimant when they were first identified in January 2019, at a time when her memory was fresh. The loss of opportunity to speak to the Claimant between January and March 2019 was, in the ET’s view, significant. However, it concluded that the delay (part caused by COVID-19 and the Claimant's ill health) did not in itself render the dismissal unfair, and the Respondent had followed a reasonably fair procedure.

On appeal, the Employment Appeal Tribunal (“EAT”) considered that the ET’s reasoning in relation to the unfair dismissal claim was legally flawed. It had considered the loss of opportunity to speak to the Claimant during the initial three-month period as significant but then merely described this failure as "unfortunate", which did not fairly reflect its own earlier findings about the seriousness of the failure to speak to the Claimant promptly, and the impact of this delay (contrary to the ACAS Code of Practice) on her ability to defend herself in the disciplinary process. The EAT returned the case to the ET for reconsideration of both the unfair dismissal finding and its finding that the reasonable adjustments claim was out of time. 

This decision highlights the importance of addressing conduct issues promptly with employees, which is particularly important where employees may have an underlying condition affecting their memory or recall. This case is a helpful reminder that the ACAS Code of Practice requires matters to be dealt with promptly, and to therefore be mindful that delays may disadvantage a disabled employee. Where an employee has a disability that may affect their ability to participate in formal procedures, employers should consider whether using informal procedures could be a reasonable adjustment.

4. Golam Chowdhury v Network Rail Infrastructure [2025] EAT 132 [LINK]

In this case, the Employment Appeal Tribunal ("EAT") considered the duty to make reasonable adjustments and whether employers have a duty to redeploy a disabled employee even if they do not meet the essential criteria for the role.

The Claimant worked as a Customer Service Assistant at London Bridge Station and suffered from plantar fasciitis, an inflammatory condition affecting mobility. Shortly after he started work in March 2020, and for a series of extended spells until his dismissal, he suffered recurring symptoms of his illness and was absent from work on sick leave. 

After his initial absence, the Claimant was temporarily assigned to a helpdesk role and after a further absence, he was placed on the Respondent’s redeployment register. He applied unsuccessfully for three internal roles at the Respondent (HR administrator; document controller; and stores co-ordinator) before being dismissed on capability grounds in August 2021. 

The Claimant brought claims in the ET alleging failure to make reasonable adjustments and discrimination arising from disability. He claimed that the Respondent ought to have redeployed him into an alternative role (either one of the three roles he had applied for or, alternatively, a receptionist role, or a helpdesk role by “bumping” another member of staff), given longer to find redeployment before dismissal, provided him with additional training, supported with job applications, or permitted him to work split shifts. The Claimant also argued that the decision to dismiss arose in consequence of his disability, and was not proportionate, so it was unlawful. 

The ET was critical of the Respondent’s management of the deployment programme and concluded that the duty to make reasonable adjustments during the Claimant’s redeployment search was engaged. However, after assessing the roles, the ET dismissed the Claimant’s claim on the grounds that appointment to the alternative roles was not a reasonable adjustment because the Claimant did not meet the essential criteria for each respective role. It also rejected the claim that the decision to terminate should have been deferred as a reasonable adjustment. Further, the Claimant’s assertions regarding training were too vague and the ET was not satisfied that any training would have made up for his ‘lack of essential competence’ for the roles. Finally, it concluded that the decision to dismiss was proportionate, as any potential lesser measure was already addressed in the reasonable adjustment claims.

The Claimant’s appeal was dismissed and the EAT concluded that:

• The ET correctly determined that redeployment to the HR administrator or data controller roles would not have been a reasonable adjustment as the Claimant did not meet essential criteria for those roles (particularly the requirement for experience in an entry-level role).
• No amount of training would be able to make up for the Claimant's lack of successful prior experience in specialist fields or would have made any difference to the Claimant’s inability to meet the essential criteria.
• Allocation to a helpdesk role would not have been an effective adjustment because the Claimant would still have to stand and walk for lengthy periods in that role, which he could not do.

This case provides clarity on the boundaries of reasonable adjustments in capability dismissals. It confirms that there is no obligation on employers to offer or create a role that the employee is not qualified for or is unable to carry out. Whilst the question of whether an employer ought reasonably to have put an employee into a given role is an objective question for the ET, a relevant consideration will be whether the employee met essential role requirements. 

The decision also addresses the role of training as a reasonable adjustment. Where there is a significant gap between an employee's abilities and the requirements of alternative roles, and no amount of training would make up for a lack of successful prior experience in specialist fields, training is unlikely to be a reasonable adjustment.