The Employment Appeal Tribunal have delivered judgment in the case of Pasha v Home Office [2026] EAT 42, a case concerning the extent to which imperfections and delays in disciplinary investigations can render a dismissal unfair for the purposes of section 98 of the Employment Rights Act 1996.
Facts
The Claimant, an Immigration Enforcement Officer employed by the Home Office from 1991 until February 2022, was dismissed for unauthorised searches on Home Office systems concerning her own relatives and individuals connected to a colleague who had asked her to make searches. The searches spanned June 2006 to August 2017 and included multiple “look-ups” after a June 2013 departmental announcement of a zero-tolerance policy against accessing records without a legitimate business need, with “inappropriately looking up information” identified as gross misconduct. In 2015 the claimant searched the records of the relatives of a junior colleague at that colleague’s request; in 2017 she attempted further searches; in 2010 she had emailed a Pakistan customs official who was an old school friend with what the employer deemed to be operational information; and in 2013 she looked up her then husband’s in‑laws while facing difficult personal circumstances .
Employment Tribunal’s decision
Following a two‑day hearing in June 2023 at Watford, the Tribunal (EJ Burns) dismissed the unfair dismissal claim, finding the decision to dismiss fell within the range of reasonable responses. The Employment Judge accepted there were procedural shortcomings, including the decision‑maker undertaking investigative steps and not disclosing certain post‑hearing enquiries, but concluded these did not cause material unfairness or affect the outcome. He rejected the claimant’s contention that her searches met a “legitimate business need,” holding that accessing records concerning family members or colleagues’ contacts for private or unassigned purposes could not constitute a legitimate business need, particularly where claimed authorisations were not established. Arguments about inconsistent treatment compared to comparators failed due to lack of evidential foundation, and delays in the process did not render dismissal unfair on the facts found.
The appeal and the EAT’s decision
On an appeal limited to specified grounds after a Rule 3(10) hearing, HHJ Barklem dismissed the appeal in full on 17 March 2026. The EAT held there had been substantive compliance with the ET’s statutory duty to have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. The ET had identified and weighed the specific departures; any failure to cite the ACAS Code expressly was not an error of law, and the procedural defects were not materially unfair. As to the non‑disclosure of post‑hearing checks with two specific individuals, the EAT upheld the Tribunal’s view that these enquiries were essentially a “nil return” which could only have assisted the Claimant if they had uncovered authorisation for the look ups, and their late disclosure did not vitiate the process. On comparators, the EAT agreed that the claimant had not provided the necessary evidential basis, and it was not an error to proceed without further analysis beyond the limited case referenced to the decision‑maker’s own experience and HR checks for consistency.
The EAT disagreed that the Claimant had alleged below that the dismissing officer acted in bad faith or was biased as a key plank of her case; this had not been alleged in the pleadings or in evidence and had not been put to the decision‑maker in cross-examination. Therefore, the Tribunal was entitled to proceed on the basis there was no dispute the Respondent had a genuine belief in gross misconduct. On delay, the EAT endorsed the Tribunal’s assessment that COVID‑related and other factors explained much of the timing, that prejudice to the claimant was not shown to be material, and that delay did not undermine the seriousness attached to breaches of the 2013 zero‑tolerance policy. On the “legitimate business need” ground, the EAT agreed that accessing records connected to family or colleagues for unassigned purposes could never be a legitimate business need and that, absent proven authorisation, the misconduct was established.
Key takeaways
The EAT’s decision reaffirms that tribunals need not recite the ACAS Code verbatim where the substance is addressed, and that immaterial procedural flaws will not usually render a dismissal unfair. Post‑hearing checks by a decision‑maker, even if procedurally imperfect, will not prevent a dismissal being fair, particularly where they could only have operated in the employee’s favour and did not change the evidential picture. Comparator inconsistency arguments require some evidence; mere assertion will not suffice.
Tom Kirk acted for the Home Office, the successful Respondent to the appeal, instructed by Naomi Jenkins of TLT LLP.
A link to the full judgment can be found here.
