A recent Employment Tribunal decision involving Barclays Bank serves as a reminder to employers: even where there is strong evidence of misconduct, a flawed process can lead to an unfair dismissal ruling and potentially costly consequences.
Case overview
In Nayfeh v Barclays Bank, a financial adviser was dismissed for gross misconduct in July 2024 following allegations of repeated inappropriate and sexual remarks to female colleagues. The comments, which included crude sexual propositions and derogatory statements, were in clear breach of the bank’s bullying and harassment policy.
Although the Tribunal accepts that the remarks likely warranted dismissal, it still found the dismissal to be procedurally unfair due to serious flaws in the investigation and hearing process.
Key procedural failures identified
Lack of thorough investigation – the disciplinary chair failed to interview other witnesses or explore the allegations beyond the initial accounts.
Significant delays – there was a four-month gap between the hearing and the dismissal outcome, and a three-month delay in communicating the appeal decision.
Expanded charges without notice – some allegations were amplified during the process without giving the employee a fair opportunity to respond.
Over-reliance on demeanour – the investigation placed undue weight on the employee’s demeanour rather than corroborating evidence.
Employment Judge Whitcombe concluded that, had a fair process been followed, stronger evidence for both guilt and innocence could have emerged.
Compensation impact
While the unfair dismissal claim succeeded, the tribunal reduced compensation by:
15% for claimant’s contributory conduct.
50% for the likelihood that a fair process would still have resulted in dismissal by the same date.
For employers to take away
This case highlights that procedural fairness is just as important as the substantive reason for dismissal. Even where misconduct appears obvious, employers must ensure they:
Conduct a robust investigation – speak to all relevant witnesses, gather documentary evidence, and avoid drawing conclusions prematurely.
Avoid unreasonable delays – communicate decisions promptly to prevent claims of unfairness.
Maintain transparency – share all allegations with the employee and give them a chance to respond.
Follow internal policies – deviating from your own disciplinary procedure increases the risk of adverse tribunal findings.
How Lawson West can help
At Lawson West, we specialise in guiding employers through complex disciplinary and grievance matters, ensuring every stage of the process is fair.
If you believe you have a situation where you require legal advice, please Contact Us on 0116 212 1000 and we will get in touch as soon as possible.
