The EAT considers the role of HR where an employee is dismissed

By Anna Harbinson, Lawyer

Background

Mr WYC Shing was employed by the University of the Arts London (UAL) as a Senior Lecturer in architecture and spatial design. He was summarily dismissed for gross misconduct after entering into what the university considered an inappropriate relationship with a mature student on the BA Honours Interior and Spatial Design course, referred to in the proceedings as EA. The relationship was briefly romantic during the course of which Mr Shing offered EA a ticket to New York. EA complained to the Respondent about the behaviour of the Claimant. Although EA had never been his allocated student and he had never been responsible for assessing or marking her work, UAL concluded that his conduct breached professional boundaries expected of academic staff. During the disciplinary process, Mr Shing accepted that he had made "unintentional errors" and acknowledged the professional boundaries policy. 

Mr Shing brought claims of race discrimination and unfair dismissal. He argued that, as a Chinese employee, he had been treated more harshly than two colleagues who had faced disciplinary allegations involving personal/romantic relationships with students but received lesser sanctions.

He also argued that the university's HR team had become improperly involved in the decision-making process, relying on the principles outlined in Ramphal v Department for Transport, namely that ‘undue pressure’ by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.

The Employment Tribunal rejected his claims, finding that the comparators were not in materially similar circumstances and that there had been no improper HR influence. Mr Shing appealed to the Employment Appeal Tribunal (EAT). 

Outcome

The EAT dismissed the appeal in its entirety. It held that the tribunal had been entitled to find that the two proposed comparators were not suitable comparisons because their misconduct was materially different from Mr Shing's conduct. One colleague's allegations were less serious, while the other had demonstrated significant remorse, accepted responsibility and had a long disciplinary-free record. The tribunal was therefore entitled to conclude that neither case supported an inference of race discrimination. 

The EAT also rejected the argument that the tribunal should have constructed a hypothetical comparator. It held that doing so would have been an artificial exercise because there was no evidence that race played any role in the dismissal decision. The claimant's case depended entirely on comparisons with the two named colleagues, and the tribunal's findings on those comparisons effectively disposed of the discrimination claim. 

On the unfair dismissal claim, the EAT reaffirmed that Ramphal v Department for Transport does not establish a blanket rule preventing HR from advising during disciplinary processes. Instead, the question is whether HR exerts improper influence over the decision-maker. In Mr Shing’s case, the tribunal had found that the dismissal decision had been made by the relevant manager and HR drafted the letter communicating that decision, with no evidence of undue pressure from HR. The EAT therefore upheld the tribunal's conclusion that the dismissal was fair.

Comments / Key takeaways

This decision will be welcomed by employers facing allegations of inconsistent disciplinary treatment. The EAT confirmed that employees seeking to rely on comparators in discrimination claims must demonstrate that the circumstances are genuinely comparable. Superficial similarities in allegations will not suffice where there are significant differences in conduct, seriousness or mitigating factors. For trade unions and workplace representatives, the case underlines the importance of identifying truly comparable cases when arguing discriminatory treatment.

The judgment also provides useful clarification on the role of HR in disciplinary processes. The EAT emphasised that employers are entitled to seek HR guidance on disciplinary procedures and consistency of sanction across an organisation. The decision suggests that sensible HR involvement designed to promote fairness and consistency will not, without more, render a dismissal unfair. Whether it amounts to undue pressure or improper influence depends on the circumstances of the particular case. For trade unions and workplace representatives this case highlights that challenges based on HR involvement are likely to succeed only where there is evidence that HR has crossed the line from providing advice into influencing the substantive outcome of the disciplinary process. 

Shing v University of the Arts London 2026 EAT 154.