Frontline UK Employment Law Update Edition 39 2025 - Case Updates

1. Mr M Davies v White Doves Garages Limited [2025]
2. Shawcross v SMG Europe Holdings Ltd [2025] EAT 92
3. Miss J Clifford v British Airways plc [2025]
4. Alom v Financial Conduct Authority [2025] EAT 138

1. Mr M Davies v White Doves Garages Limited [2025] [LINK]

In this case, the Employment Tribunal (“ET”) confirmed that workplace "banter" can constitute unlawful harassment if it creates an offensive environment, even where the employee is merely in the vicinity of conversations and not a participant or the subject of them.

The Claimant, a motor trade professional with nearly 40 years' experience, was employed by the Respondent from 8 to 29 April 2024. From the outset, there were tensions between the Claimant and management. The Claimant openly criticised his manager, refused to follow processes unless he saw value in them, and was confrontational when challenged. Colleagues complained he was hard to work with, describing him as rude and condescending.

The Claimant worked in a communal office and was regularly exposed to language and conversations amongst colleagues which he considered inappropriate, overhearing them in the background whilst trying to work. The conversations included material of a sexual nature. On 26 April, management met to discuss the Claimant. They concluded he was unmanageable, was damaging team cohesion, and anticipated his dismissal. On 28 April, colleagues discovered that the Claimant had been making covert recordings of office conversations. Staff members contacted management stating they did not want to work with him.

At a dismissal meeting on 29 April, the Claimant raised concerns about discriminatory conduct in the workplace and sought to rely on the recordings. He was dismissed the same day for breaching trust by making these recordings, refusing to follow procedures, and contributing to a breakdown in working relationships.  The Claimant brought various claims in the ET.

The ET upheld his claims of harassment related to conduct of a sexual nature and sexual orientation. It dismissed claims of wrongful dismissal, detriment and dismissal for making protected disclosures, and victimisation.

The successful harassment claims were based on the Claimant's exposure to conduct he found offensive within a shared workspace, rather than any direct targeting. This demonstrates that employers should consider the impact of workplace conversations and "banter" on all employees who may overhear them in shared spaces, not just those directly involved. Importantly, the fact that a female colleague was present during some conversations and did not take offence, did not mean that the Claimant was not entitled to be offended. Harassment is assessed based on the effect on the complainant, not whether others found the comments acceptable or whether the individual objected at the time. Although not binding authority, the decision provides useful insight into how tribunals may evaluate informal workplace culture and language in the context of harassment claims.

2. Shawcross v SMG Europe Holdings Ltd [2025] EAT 92 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) dismissed the Claimant's appeal against a case management order preventing her from relying on privileged email correspondence between her former employer and its legal representative to support her victimisation complaint.

The Claimant had advanced complaints under the Equality Act 2010 including discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability and sex, and victimisation. Her victimisation complaint alleged that she was dismissed on 28 April 2023 as a detriment for having raised a grievance on 29 November 2022. Two days before her dismissal, on 26 April 2023, the Claimant was accidentally copied into an email chain of communications between the Respondent (her employer) and its legal representative. The chain consisted of seven emails sent on 25 and 26 April 2023.

The Claimant sought to rely upon the email chain to support her victimisation complaint, whilst the Respondent argued the emails were subject to legal advice privilege. The Claimant countered that the emails fell within the "iniquity exception" to privilege, arguing they showed that the Respondent sought to dismiss her through a dishonest sham process designed to disguise the true identity of the decision maker and the fact that the decision to dismiss had already been taken by 25 April 2023.

The ET concluded that the Claimant had not established that the emails were subject to the iniquity exception and directed that she could not rely upon them in evidence at the full hearing. 
On appeal, the EAT agreed. Objectively, and read as a whole, the correspondence did not amount to a discussion about fabricating a false position or acting in an underhand or iniquitous way. It found the advice was consistent with a solicitor encouraging its client to bring in a senior manager as "a fresh pair of eyes" to look at the case again before any decision to dismiss became final.

The legal representative had offered advice on the risk of immediate dismissal being found unfair and warned of the particular risk that the Claimant might argue dismissal was victimisation, but did not suggest such a complaint would be well-founded. Crucially, the employer never suggested to its solicitor that it wished to conceal the identity of the true decision maker or fabricate an ulterior reason for dismissing.

This case reinforces that the iniquity exception to legal advice privilege has a high threshold. The advice given was described as the sort that employment lawyers regularly have to give to clients and was within the normal scope of professional engagement. Even where parties may consider there is an overwhelming likelihood of dismissal, this does not automatically cross the threshold necessary to establish the iniquity exception. Employers can take comfort that routine employment law advice on managing dismissal processes, even where outcomes may seem predetermined, will generally remain privileged provided it does not involve actual dishonesty or fabrication.

3. Miss J Clifford v British Airways plc [2025] [LINK]

In this case, the Employment Tribunal (“ET”) found that the Respondent had discriminated against the Claimant, a long-serving cabin crew member, by failing to make reasonable adjustments for her disability-related anxiety and dismissing her without properly exploring alternative roles.

The Claimant had worked for the Respondent for nearly 40 years. Following Covid-19 furlough and redundancy uncertainty, she developed anxiety, depression and work-related stress when asked to return to flying duties. The Respondent's medical service assessed her as unfit to fly, though she remained willing to work in a ground-based role. She proposed a phased return through ground duties at Gatwick (closer to home) to reduce travel-related stress. The Respondent rejected this as "not feasible" and instead offered a temporary "help hub" role at Heathrow, supporting passengers with reduced mobility. The ET found this environment too fast-paced and noisy, and noted the commute exacerbated the Claimant’s symptoms.

Despite medical advice supporting permanent ground duties and a gradual return, the Respondent maintained that fitness to fly was essential for continued employment. Medical professionals consistently recommended phased returns of between six weeks to three months, with the Respondent's own health service recommending nine weeks of ground duties. However, the Respondent offered only a three-week placement in recruitment, which the ET found insufficient for someone requiring a sustained rehabilitation period.

The Respondent ultimately dismissed the Claimant for incapacity in December 2022, with termination taking effect in March 2023. The ET held that the dismissal process failed to properly consider reasonable adjustments or explore suitable alternative roles.

The ET was critical of the inflexible approach, and found the Respondent had failed to take account of the Claimant's individual medical circumstances, instead attempting to apply a "usual" phased return approach rather than addressing her specific needs.

This case reinforces that employers should meaningfully consider alternatives to dismissal, particularly where medical evidence supports adjustments such as alternative duties, different locations, or phased returns. It highlights the importance of ensuring decisions are guided by medical evidence and where possible, avoid adopting an inflexible approach.

4. Alom v Financial Conduct Authority [2025] EAT 138 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) confirmed that the Claimant’s summary dismissal was not procedurally unfair despite procedural challenges, including non-disclosure of investigation interview transcripts, concerns about HR involvement in the disciplinary process, and evidence obtained via an overly broad search of the Claimant's work computer.

The Claimant was summarily dismissed by the Respondent for gross misconduct following two incidents: (1) an anonymous email he sent to a female colleague which was found to be harassing in nature, and (2) a breach of confidentiality relating to disclosure of an internal investigation report.

The Claimant brought claims in the ET alleging unfair dismissal, direct race discrimination, harassment related to race, and victimisation, all of which were dismissed. He appealed to the EAT on the grounds that the ET should have found his dismissal procedurally unfair because: 

• the Respondent did not provide him with transcripts of the investigative interviews with the female colleague;
• his line manager used a “script” prepared by HR during the disciplinary hearing, meaning the dismissal was predetermined; and 
• a disproportionate forensic search was carried out on his work computer which breached his Article 8 ECHR rights. 

The EAT dismissed the appeal, concluding that the dismissal was fair for the following reasons:

• Non-disclosure of the interview transcripts did not render the dismissal procedurally unfair, given that the Claimant was provided with sufficient information to defend himself against the charges of gross misconduct.
• The use of a “script” did not prejudge the outcome of the disciplinary process, as the Claimant’s line manager had come to his own conclusions after hearing the Claimant’s representations.
• Whilst the computer search may have been disproportionate, this did not affect the fairness of the dismissal, since the Respondent did not rely on the search in support of their decision to dismiss.

This case provides employers with clarity on the boundaries of procedural fairness in misconduct dismissals, particularly where employees challenge the process on multiple grounds. This decision confirms that tribunals will focus on whether the employee had sufficient information to respond meaningfully to the disciplinary allegations, rather than whether each piece of investigatory material was disclosed. 

The decision also addresses the role of HR in disciplinary processes, serving as a reminder that whilst HR scripts and guidance materials are common practice, such materials must not appear to dictate outcomes and decision-makers must retain genuine autonomy.

Finally, from a privacy perspective, the decision establishes that workplace monitoring or searches that may engage Article 8 ECHR rights will not necessarily undermine a dismissal if the results are not relied upon in the decision-making process. This provides employers with some reassurance when conducting workplace investigations, though they should remain mindful of employees' privacy rights.