'Zero Tolerance': A Case Study In Fairness From Nayfeh v Barclays Bank UK Plc

In the twelve months since employers were placed under a positive duty to prevent sexual harassment, there has been a palpable shift in tone across workplaces. Many organisations have rewritten their policies, made training mandatory, and embraced a new vocabulary of "zero tolerance." This kind of language is not merely symbolic. Instead, it signals to staff, regulators and the public that harassment will not be ignored.

But as the recent case of Nayfeh v Barclays Bank UK Plc demonstrates, the line between a strong cultural stance and a fair legal process can be a thin one. When an investigation becomes too focused on proving guilt rather than finding truth, "zero tolerance" can turn into a form of procedural blindness, and, as Barclays discovered, that can be just as damaging as doing nothing at all.

A complaint without witnesses

Mr Nayfeh had been with Barclays for nine years, working as a financial guide in the bank's mortgage team. He was an experienced employee, and by all accounts had a clean disciplinary record. That stability came to an abrupt end when a younger female colleague made a complaint that he had made sexually inappropriate remarks to her.

Her account was simple but serious. She alleged that he had asked, "If I show you my willy, will that make us friends?" and, on another occasion, "Why don't you buy yourself some sexy underwear?" She also recalled him saying, "What's the youngest a 40-year-old can go with?"

Mr Nayfeh admitted that last comment, but insisted it had been said in a different context, as a clumsy, conversational aside during a discussion about her partner. The rest, he denied outright. There were no witnesses, no written evidence, and no messages exchanged between them.

He was suspended while Barclays investigated.

From investigation to escalation

The investigation began in the usual way. The complainant was interviewed, as were Mr Nayfeh and several colleagues. No one could corroborate the specific remarks, although one colleague noted that Mr Nayfeh could sometimes be "close to the line" in his humour, without being overtly sexual.

Despite this lack of corroboration, the investigator concluded that it was "likely" that all three alleged comments had been made. That assessment became the foundation of the disciplinary process. Though, in time, the scope of the allegations would grow wider than either party anticipated.

When Mr Nayfeh was called to a disciplinary hearing, his letter of invitation listed not three allegations but five, including two that had never been investigated or put to him. Although the chair opened the hearing by clarifying that the discussion would focus on the original three, the eventual outcome letter dismissed him for all five.

The process took more than four months from hearing to outcome, despite assurances that the decision would follow within a fortnight. During that time, Mr Nayfeh remained suspended, cut off from his team and the daily routines of working life.

When the decision finally came, he was dismissed for gross misconduct. Barclays said that his behaviour was incompatible with its values and zero-tolerance policy.

He appealed. The appeal officer reviewed the file and even spoke again to the complainant – but he did so privately, without informing Mr Nayfeh or giving him the chance to respond to what was said. The original decision was upheld.

The tribunal's verdict

At tribunal, Barclays accepted that Mr Nayfeh had been dismissed for conduct, which was a potentially fair reason. The issue was not why he was dismissed, but how.

The tribunal found that the investigation and disciplinary process were "seriously flawed" and "fell well outside the range of reasonable responses." It was, in short, unfair.

The reasons were numerous. The investigation, said the tribunal, had been one-sided. The investigator had sought additional evidence of Mr Nayfeh's past behaviour but had not explored whether the complainant might have misremembered or misunderstood what had been said — a crucial omission, given that she had a medical condition that sometimes caused her to "zone out."

The disciplinary chair, meanwhile, had misinterpreted several firm denials as partial admissions. The decision-making process had also been infected by procedural drift: allegations that had never been investigated became grounds for dismissal, and the appeal compounded the error by withholding new evidence from the employee.

The delay of four months for an outcome that was promised in two weeks, was both unjustified and harmful. The fact that Mr Nayfeh had been suspended on full pay was "no answer," the tribunal said, because the damage to his reputation, professional standing, and sense of dignity could not be undone by pay alone.

In a profession like financial services, a dismissal for sexual harassment can effectively end a career. For that reason alone, the tribunal held, Barclays was under an obligation to exercise special care and fairness in reaching its conclusions. That duty had not been met.

The dismissal was ruled unfair.

A misstep in the name of zero tolerance

The tribunal's judgment did not ignore the broader context. It acknowledged that Barclays, like many employers, had strengthened its approach to harassment in the wake of legislative and cultural change. It accepted that the bank had clear policies, that it trained its staff, and that its intention was to uphold the highest standards of behaviour.

But noble intentions are no defence to procedural unfairness. The judgment sends a quiet but powerful message that the duty to prevent harassment cannot be met by lowering the standards of fairness owed to those accused of it.

Mr Nayfeh was not vindicated in full. The tribunal found that he had contributed to his own dismissal by 15%, because the comment he admitted ("What's the youngest a 40-year-old can go with?") was plainly inappropriate. The remark, the judge said, was "reckless" and "liable to make others feel uncomfortable." It breached the standards that Barclays had made clear through its training and policies.

Even so, the tribunal stressed that a single comment, however misguided, does not automatically justify dismissal. Zero tolerance is a moral stance, not a substitute for the legal test of reasonableness. Employers still have to prove, on the balance of probabilities, that misconduct occurred and that dismissal was a proportionate response.

The human cost of procedural drift

What makes the Nayfeh case significant is not simply that Barclays lost the case, but why. The tribunal's reasoning went beyond the technicalities of procedure. It recognised the human consequences of delay, confusion and poor communication, and the sense of being judged without being heard, or punished for charges one never had the chance to answer.

It is striking how many of the failings in this case were avoidable. The chair could have paused the hearing to investigate new allegations properly. The appeal officer could have shared the complainant's additional evidence before making his decision. The employer could have maintained the scope of the case within the boundaries of what had actually been investigated.

None of these steps would have undermined Barclays' zero-tolerance message. On the contrary, they would have strengthened it – showing that the organisation not only condemns harassment, but also upholds fairness as a core value in its response.

Turning policy into practice

The lesson here is not that zero tolerance is misplaced, but that it must be underpinned by procedural integrity. Employers who wish to act swiftly against harassment need to ensure that speed does not come at the expense of scrutiny. A credible investigation must test both sides of the story with equal diligence, especially where there are no witnesses. That means recording evidence carefully, questioning assumptions, and being prepared to pause a disciplinary process if new allegations emerge.

It also means investing in training, not only for employees but for managers who carry the heavy responsibility of deciding careers. As Nayfeh shows, the law now expects decision-makers to understand fairness as more than an abstract idea; it is a discipline that can be learned, measured, and demonstrated.

Finally, the case reminds employers that policy language such as "zero tolerance," "gross misconduct," "summary dismissal" carries legal weight. Declaring intolerance of harassment is right and necessary. But a dismissal must still be justified on evidence, proportionate to the conduct, and rooted in a process that could withstand tribunal scrutiny. When policy and fairness are properly aligned, the result is not hesitation, but confidence. It highlights that an employer can act decisively and defend its decisions with integrity.

Relearning what fairness means

In an age when employers are under increasing scrutiny for how they handle misconduct, Nayfeh is a cautionary tale about balance. The new statutory duty to prevent harassment is proactive: it requires employers to create environments where misconduct is less likely to occur. But when it does occur, the old principles still apply.

Fairness is not optional. It requires that allegations be tested, evidence weighed, and both sides heard without bias. It demands that decision-makers separate moral outrage from legal judgment. And it insists that even where dismissal feels justified, it must still be shown to be reasonable and procedurally sound.

For employers, that means training managers not just in the language of inclusion and respect, but in the mechanics of justice – how to investigate, how to listen, and how to decide.

Zero tolerance, not zero judgement

The temptation in modern HR culture is to treat zero tolerance as synonymous with automatic dismissal. But in law, the opposite is true. The higher the moral stakes, the greater the need for procedural care.

Zero tolerance should mean zero indifference to misconduct, not zero consideration of evidence, context or intent. When a complaint arises, the investigator's job is not to confirm guilt but to discover what actually happened. That may require uncomfortable nuance, especially where there are no witnesses and both accounts are plausible.

A fair process, documented transparently and carried out impartially, protects everyone: the complainant, the accused, and the employer. It preserves trust in the outcome, whatever that outcome may be.

Fairness under a positive duty

The positive duty to prevent harassment will not make cases like Nayfeh disappear. If anything, it will make them more visible. As employers strive to meet new expectations of accountability, they must ensure that the drive to act does not eclipse the duty to act fairly.

Barclays' experience is a reminder that procedural fairness is not a technical formality, it is the heart of justice at work. A fair process does not excuse misconduct, but it ensures that any finding of misconduct can withstand moral, professional and legal scrutiny.

For employers, the real challenge in this new era is not deciding whether to take harassment seriously, but how to take it seriously without abandoning fairness.

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