Unfair Dismissal and the “Curing” Effect of Internal Appeals: When an ET Need Not Spell It Out

Case: Argence-Lafon v Ark Syndicate Management Ltd [2026] EWCA Civ 1039
Court: England and Wales Court of Appeal (Civil Division) (Laing LJ, Warby LJ)
Date: 4 August 2026
Appeal from: Employment Appeal Tribunal (His Honour Judge James Tayler) [2025] EAT 125

1. Introduction

The appellant employee (a senior underwriter) brought Employment Tribunal (“ET”) claims for (i) whistleblowing detriment under Employment Rights Act 1996 (“ERA 1996”) s.47B, (ii) automatically unfair dismissal for whistleblowing under s.103A, and (iii) ordinary unfair dismissal under s.98. His employment had transferred to the respondent employer under TUPE 2006.

The ET dismissed the whistleblowing claims but upheld ordinary unfair dismissal. The employer cross-appealed to the EAT. The EAT allowed the cross-appeal, reasoning that the ET had not factored the internal appeal into its fairness analysis and that the internal appeal might have remedied (“cured”) defects; it remitted the unfair dismissal claim to the ET.

The Court of Appeal’s focus was narrow: permission was granted only on the ground challenging the EAT’s decision to allow the cross-appeal and order a remission.

Key issue

• Whether the EAT erred in law by treating the ET’s failure to expressly discuss the internal appeal in its unfair dismissal conclusions as an error, and by concluding the internal appeal could arguably cure the identified unfairness.

2. Summary of the Judgment

The Court of Appeal allowed the employee’s appeal. It held that:

• The ET’s reasons must be read as a whole, against the background of pleadings and issues; the ET was not obliged to spell out the (limited) relevance of the internal appeal where it added nothing material to the decisive unfairness found.
• While an internal appeal may sometimes address a procedural defect (e.g., surprise at a new allegation), that point was only one strand of the dismissal here and could not cure the separate and substantial unfairness identified by the ET concerning the performance/PIP strand, particularly the lack of reasonable investigation.
• The EAT impermissibly treated an omission of explicit reference to the appeal as a legal error, despite extensive ET findings about the appeal and without appreciating that the appeal did not (and could not) remedy the ET’s core findings on unfairness.

Practical result: the EAT’s interference with the ET’s unfair dismissal decision and its order for remission were unjustified in law.

3. Analysis

3.1 Precedents Cited

(a) Taylor v OCS Group Limited [2006] EWCA Civ 702; [2006] ICR 1602 (“Taylor”)

The EAT relied on Taylor to argue that the fairness of a dismissal must be assessed by looking at the whole process, including any internal appeal, and that the appeal may in some cases correct earlier defects.

The Court of Appeal accepted the orthodox proposition stated in Taylor but held it did not assist the EAT on the facts:

• The ET was not shown to have misunderstood this law; in a routine unfair dismissal case, an ET is not expected to cite Taylor unless the point is substantively in issue.
• The EAT’s reasoning overlooked that the appeal’s potential “curing” effect was, at most, relevant to one alleged defect (surprise over an allegation of breakdown of trust and confidence), and did not engage with the ET’s separate findings of unfairness about the performance/PIP handling.

(b) Union of Construction and Allied Technicians v Brain [1981] ICR 542

Via Taylor, the Court emphasised Donaldson LJ’s point that whether an employer acted reasonably is “always a pure question of fact” and that the tribunal must consider the matter “in the round” and without legal technicalities. The Court used this to reinforce:

• The ET’s role as an “industrial jury” in applying ERA 1996 s.98(4);
• Appellate restraint: an appellate tribunal should not re-run the merits under the guise of a legal error.

3.2 Legal Reasoning

(a) Reading ET reasons “as a whole”

The Court of Appeal reiterated a core appellate discipline in employment cases: an ET’s reasons are sufficient if they explain to the parties who won and why, and they must be read holistically. The EAT’s approach was criticised as overly formalistic: it treated the absence of an explicit sentence (“we considered the appeal and it made no difference”) as determinative, despite:

• the ET’s detailed factual findings about the appeal process; and
• the context that the employer had not squarely advanced, as a developed issue, that the internal appeal cured the earlier shortcomings.

(b) Two-strand dismissal: why the internal appeal could not do the work the EAT assumed

The ET found two main reasons for dismissal: (i) failure to engage with the PIP/objectives, and (ii) allegations (made via solicitors in the grievance appeal) amounting to a breakdown of trust and confidence.

The Court accepted that, by the time of the internal appeal, the employee was no longer “ambushed” by the trust-and-confidence point; so, in principle, an appeal might address that particular procedural criticism.

But the Court held this missed the decisive point: the ET’s unfairness findings were also anchored in a distinct performance/PIP strand, including that no reasonable investigation was conducted into whether the disputed objectives were appropriate for a formal PIP in the circumstances (notably, the prior absence of personal objectives/appraisals and the dramatic uplift demanded). On the ET’s findings, the internal appeal:

• did not undertake (and could not substitute for) the missing investigation; and
• therefore could not cure the unfairness the ET had identified on that strand.

(c) Appellate restraint and the limits of EAT intervention

The Court stressed that appeals to the EAT (and onward) are on points of law. Where an ET has made permissible evaluative findings under s.98(4), an appellate tribunal must not:

• infer a misdirection merely from brevity in the ET’s conclusions;
• re-characterise an ET’s reasoning by focusing on an “oversight” label rather than the substance of the findings; or
• order remission on the basis of a speculative possibility that an appeal might have changed the outcome, where the ET’s findings show it could not.

3.3 Impact

(a) Practical guidance for unfair dismissal litigation

• Internal appeals remain relevant to overall fairness, but their curative reach is fact-sensitive and strand-specific: an appeal may fix some defects, but not others—especially not an investigative gap the appeal does not fill.
• Parties should plead and argue the “appeal cures defects” point clearly if they want it to feature materially in the fairness assessment. Boilerplate pleading that “the overall process was fair” may be insufficient to make the appeal determinative.
• ET reasoning need not be formulaic: if the ET’s findings make clear why dismissal was unfair, an ET does not commit an error of law by failing to add an express paragraph addressing the appeal, unless the appeal is truly decisive to the reasoning.

(b) Institutional impact: controlling unnecessary remittals

The decision is also significant as a reminder that remittal should not be driven by an appellate tribunal’s preference for more explicit drafting where, read fairly, the ET’s reasons already disclose a lawful path to the result.

4. Complex Concepts Simplified

• ERA 1996 s.98(4) (“band of reasonable responses” territory): the ET asks whether the employer acted reasonably in treating its reason as sufficient to dismiss, considering equity and the substantial merits. This is a fact-sensitive evaluative judgment.
• Internal appeal “curing” defects: an appeal can sometimes correct earlier procedural unfairness (e.g., by giving a fair hearing later), but only if it genuinely addresses the defect. It cannot cure shortcomings it does not confront (e.g., absence of a reasonable investigation).
• Protected disclosures and “detriment” (context only): although whistleblowing failed here, the ET’s unfair dismissal finding was separate; a dismissal can be unfair even if it is not for a prohibited whistleblowing reason.
• PIP (Performance Improvement Plan): a formal process setting performance targets and review. In unfair dismissal cases, fairness often turns on whether targets were reasonable, clearly communicated, supported, and investigated before dismissal.

5. Conclusion

Argence-Lafon v Ark Syndicate Management Ltd confirms that while an internal appeal is part of the overall dismissal process, appellate bodies must not assume that an appeal can “cure” unfairness where the ET’s findings show the appeal did not address the core defect (here, a lack of reasonable investigation underpinning the performance/PIP rationale). The judgment is also a pointed reaffirmation of appellate restraint: ET reasons are read as a whole, and brevity or a missing express reference to the appeal is not, without more, a legal error justifying remission.