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Can a dismissal be fair if the employer’s original reason was unsupported by the evidence, but other misconduct might have justified dismissal?

In Chand v EE Ltd [2026] it was held that this is not the case!

What happened?

• The Claimant, Chand, had worked for EE for 16 years.
• She was investigated over four incidents involving customer accounts, which EE treated collectively as suspected fraud.
• These instances included incorrect application of the staff discount, inappropriate use of customer account details, transactions being processed improperly and misuse of company systems.
• Although the Claimant accepted that mistakes had occurred, she denied acting dishonestly.
• EE dismissed her for gross misconduct on the basis of fraud. So she brought a claim.

• The Employment Tribunal found there were no reasonable grounds to believe the incidents amounted to fraud.
• However, it concluded that one incident constituted a serious breach of company policy and upheld the dismissal as fair on that alternative basis.

• The Claimant appealed this decision and the EAT found that her dismissal was unfair!
• It held that the Tribunal had made a mistake by relying on a policy breach when EE had dismissed Ms Chand for fraud.
• The fairness of a dismissal must be assessed by reference to the reason the employer actually relied upon at the time.
• An employer cannot retrospectively justify a dismissal by relying on an alternative reason that was not the basis of its decision.
• While an alternative reason may be relevant when assessing compensation, it does not automatically make the dismissal fair.

Why is this important?

This case highlights the importance of ensuring dismissal decisions are evidence-based and consistent with the reason relied upon. Employers should avoid overstatement and ensure their conclusions reflect the findings of the disciplinary process. Reason means facts or beliefs held at the time. No retro-fitting allowed.

What can HR learn from this?

• Ensure the reason for dismissal accurately reflects the evidence.
• Do not label conduct as fraud or dishonesty without sufficient supporting evidence.
• If findings change, reconsider the allegations and give the employee a fair opportunity to respond.
• Ensure the final decision and the reasoning behind it is clearly recorded.

Need help?

At PJH Law we specialise in employment law, call our office today on 01780 757589 or visit our website to get in touch!

We love receiving feedback like this. At PJH Law, our aim is simple: make employment law clear, provide timely advice and help our clients move forward with confidence.

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We’re proud to have helped this client achieve a positive outcome during what can often be a difficult and uncertain time.

At PJH Law, we provide practical, clear and supportive employment law advice, helping clients navigate workplace issues with confidence from start to finish.

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Can company culture be a PCP?

What happened?

Ms Burns was a senior technology executive with ADHD and dyslexia. She worked for Gitpod, a software company that was later acquired by OpenAI.

The case has attracted headlines because she allegedly lost her job after spending a night sleeping in a sauna during a work trip and is now pursuing compensation reportedly worth £76 million.

However, the real lesson for employers is much more interesting.

Gitpod operated a highly written working culture. Employees were expected to communicate, collaborate and manage their work primarily through written channels. Ms Burns argued that this put her at a disadvantage because of her ADHD and dyslexia.

When concerns were raised about her performance, she argued those issues were linked to her disabilities and that reasonable adjustments had not been made.

The Tribunal agreed.

What’s a PCP?

A Provision, Criterion or Practice (PCP) is simply a rule or way of working.

In this case, the PCP was arguably not a policy at all. It was the company’s culture. Employees were expected to absorb large amounts of written information, manage their own workload and communicate primarily in writing.

Lessons for HR

1. Company culture can be a PCP.
2. Performance concerns may be a symptom of an unmet reasonable adjustment need, not a capability issue.
3. The most obvious PCPs are often hidden in plain sight. “This is just how we do things” can be exactly the practice that puts a disabled employee at a disadvantage.

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We would like to extend a big thank you to all who attended, it was a pleasure to meet so many HR professionals, old friends and new, at our recent PJH Law seminar event and exchange ideas on the challenges and opportunities facing modern workplaces. Alongside discussions on navigating employment law issues with confidence, we explored the practical steps organisations can take to prepare for the significant changes being introduced by the Employment Rights Act 2025. With employment rights continuing to evolve, now is the ideal time for employers to review their policies, procedures and people practices ensuring they are ready for the future.

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Do employees have to disclose if they were dismissed for gross misconduct?

In Mr P Easton v Secretary of State for the Home Department (Border Force) [2025], the tribunal held that employees do.

What happened?

• Border Force issued prospective applicants with an application form which requested them to disclose their employment history.

• When applying for a role with Border Force, Mr Easton listed his employment as as working for the Home Office from ‘2002-2016’ and the DWP from ‘2016 to current’.

• He did not disclose a three month employment gap or a previous dismissal for gross misconduct.

• The application form stated that providing false information or withholding relevant details could lead to disciplinary action.

• After discovering his previous dismissal, Border Force carried out a thorough investigation and dismissed the Claimant for gross misconduct.

• Mr Easton brought a claim for unfair dismissal.

• Both the Employment Tribunal and EAT found the dismissal to be fair.

• The EAT agreed that the employer had reasonable grounds to conclude that Mr Easton had deliberately concealed relevant information.

• It also confirmed that a reasonable applicant would understand that an application form requesting employment history should disclose gaps in employment.

Why is this important for employers?

Application forms should request full employment dates and specifically ask applicants to explain any gaps.

Employers should check employment history and investigate discrepancies rather than treating applications as a tick-box exercise.

Where dishonesty is suspected, employers should conduct a thorough investigation, give the employee an opportunity to respond, and follow a fair disciplinary and appeal process.

Not every mistake or omission will amount to dishonesty or gross misconduct. Employers should consider whether the information was deliberately withheld and ensure any decision to dismiss falls within the range of reasonable responses.

Need help?

At PJH Law we specialise in employment law, call our office today on 01780 757589.

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