Zhao v Govia Thameslink Railway: EAT upholds fairness of dismissal despite imprecisely framed charges

An employer that never spelled out in its disciplinary charges that an email was alleged to be discriminatory has nonetheless dismissed fairly, the Employment Appeal Tribunal has held, because the substance of the accusation was unmistakable to the employee throughout.

In Zhao v Govia Thameslink Railway (GTR) Ltd [2026] EAT 101, handed down on 10 July 2026, His Honour Judge Auerbach dismissed an appeal against the decision of an employment tribunal sitting at Croydon, which had rejected complaints of protected disclosure detriment, victimisation and unfair dismissal.

One email, twelve years of service

Ms Zhao worked as a Sales Point Assistant at Carshalton Beeches station from July 2021, having joined the operator in 2010. In July 2022 she emailed a member of the HR recruitment team objecting to the possible appointment of a colleague to the station's gateline, writing that he would form cliques with another member of staff because both came from India.

An investigation already under way into an unrelated altercation was widened to encompass that email. The investigating manager's report was, in the tribunal's own words, not a model of clarity, framing the allegations by reference to policy provisions breached rather than the factual conduct alleged, with inconsistent appendix numbering. The charge as formulated never stated that the email was said to be discriminatory. The words "due to him being of Indian origin" first appeared in the dismissing manager's outcome letter.

Ms Zhao was summarily dismissed in January 2023 for gross misconduct. Her appeal was rejected. Both managers recorded her lack of insight and her statement that she would send the same email again.

Notice of the substance, not the label

The appeal, on grounds settled by ELAAS counsel after a rule 3(10) hearing, contended that the tribunal had failed to take into account five features going to whether the claimant was fairly on notice of the charge: no written invitation to the investigatory meeting, the absence of any allegation of discrimination in the report or the disciplinary invitation, and her statements at the hearing that she had not been told the email would be considered.

HHJ Auerbach accepted that the tribunal had needed to ask whether the claimant had a fair opportunity to answer the charge in its discriminatory character, that being the reason she was dismissed. He also accepted that the tribunal would have done better to spell out at paragraph 250 what it took the "sting" of the allegation to be. Neither concession availed the appellant.

Section 98(4) of the Employment Rights Act 1996 does not require an initial fact-finding investigation to be conducted in any particular way, and the ACAS Code requires an investigatory meeting only in some cases. The report attached the email itself, the minute of the interview in which the investigating manager had asked why the colleague's country of origin mattered and whether the claimant would object to any other Indian employee, and the anti-harassment policy relied upon. The charge concerned a single undisputed email whose content, as the tribunal put it, spoke for itself.

Applying Taylor v OCS Group [2006] ICR 1602, fairness falls to be assessed across the end-to-end process. Although the tribunal did not cite Taylor, its treatment of a separate email, which it held any earlier unfairness in relation to had been cured on appeal, demonstrated that the principle was in mind.

The second ground, that the tribunal ignored the claimant's contention that she would have written the same email about colleagues of any shared nationality or religion, rested on a false premise. The two propositions were not opposites. Her stated concern was that the two colleagues would exclude her because she did not share their race. That the same objection would have arisen had they shared some other race or religion was no answer.