Fieldfisher v Rustambekov: EAT overturns unfair dismissal ruling in harassment case

The Employment Appeal Tribunal has set aside an Employment Tribunal's finding that a City law firm unfairly dismissed a former senior associate over allegations of sexual harassment and inappropriate conduct, ruling that the tribunal had improperly substituted its own assessment of the evidence for that of the employer.

In Fieldfisher LLP v Djamshid Rustambekov [2026] EAT 99, the Hon. Lord Fairley, President, allowed Fieldfisher's appeal and remitted the case to a differently constituted tribunal, finding that the original panel had strayed beyond its proper role when evaluating the reasonableness of the firm's decision to dismiss.

Mr Rustambekov, a senior associate in Fieldfisher's dispute resolution department, was dismissed in November 2023 following a disciplinary process that considered three separate allegations. The first concerned a colleague, referred to as C1, who said Mr Rustambekov had repeatedly pressed her to cancel her taxi and return to the office with him after a work event in January 2023. The second concerned a different colleague, C2, who said he had placed his hand on her waist and waited for her outside a toilet at a later event in July 2023. A third allegation, that he had sexually assaulted C1 in a disabled access toilet at that same July event, was investigated but ultimately not upheld as part of the reason for dismissal, though it featured heavily in the surrounding evidence.

The Employment Tribunal found the dismissal unfair. Central to its reasoning was a finding that C1 had deliberately given false evidence about what happened immediately before the toilet incident, a conclusion it drew largely from a third party's written description of CCTV footage from the venue, since the original footage itself was never released to the employer or seen by the tribunal. Having made that finding, the tribunal reasoned that this "negative pull" on C1's credibility undermined the separate January 2023 allegation, ultimately concluding the employer lacked reasonable grounds for its findings on that incident.

Lord Fairley held this reasoning to be flawed in two respects. First, the tribunal had made its own credibility findings about an allegation that formed no part of the actual reason for dismissal, based on a single piece of secondhand evidence, when the dismissing partner had reached a more nuanced conclusion after speaking to C1 directly. Second, and more significantly, the tribunal had misapplied the Supreme Court's guidance in MA (Somalia) v Secretary of State for the Home Department, a case concerning an immigration tribunal acting as primary fact-finder, to a wholly different task under section 98(4) of the Employment Rights Act 1996. That provision required the tribunal only to assess whether the employer had reasonable grounds for its belief, following the established principles in British Home Stores v Burchell, not to reach its own conclusions about what had actually happened.

Lord Fairley emphasised that the employer had three sources of evidence supporting its findings on the January 2023 incident, including contemporaneous WhatsApp messages between C1 and a witness describing Mr Rustambekov's behaviour as "creepy", and that it was not for the tribunal to substitute its own evaluation of that material. Because the flawed finding on the January incident was central to the overall conclusion of unfairness, the judgement could not stand. Grounds relating to perversity and procedural fairness were not determined, the matter instead being remitted in full for rehearing.