Our April 2026 edition highlights the important Employment Rights Act 2025 (ERA 25) reforms taking effect this month, including a new duty to keep records about holiday and holiday pay. We also provide an update on the new statutory rates and limits, the government’s plans to introduce mandatory disability and ethnic pay gap reporting for larger employers, and our usual round-up of interesting case law.
Case law update
Indirect sex discrimination: An Employment Appeal Tribunal (EAT) has ruled that it was lawful, and not discriminatory, for an employer to require employees to work flexibly and on weekends, even though this placed women employees at a disadvantage due to the “childcare disparity”. In this case, the claimant worked a fixed number of hours on fixed days of the week, relying on family for childcare of her three children. When her employer changed its policy requiring the claimant and her colleagues to work occasional weekends, she repeatedly refused and was dismissed after a lengthy consultation and grievance process. Her employer was able to justify its requirement for flexibility as it needed a pool of staff to cover a 24/7 service. It was also relevant that, despite the inconvenience of occasional weekend working, none of the other community nurses (of whom there were 278) left employment as a result of the changes. (Dobson v. North Cumbria Integrated Care NHS FT)
Racial harassment: In a claim hitting the headlines, an Irish employee has won her claim of racial harassment after her manager regularly shouted “potato” at her in a mock Irish accent and used language such as “paddy” and “pikey” despite her repeatedly telling him that she did not find it funny and asking him to stop. This lasted for six months, and the Employment Tribunal (ET) was satisfied that the behaviour created a hostile, offensive, and humiliating environment for her, and that it was reasonable for someone of Irish heritage to be offended by the comments. She was awarded £13,000 for injury to feelings as part of a larger award also covering financial losses after she was dismissed. The case is a helpful reminder of the importance of setting clear standards of expected behaviour and how so-called “banter” can prove costly. (Hayes v. West Leeds Civils Ltd)
Whistleblowing: To qualify as a protected disclosure, one of the requirements is that the disclosure is made in the public interest and that the belief behind it is reasonable. The question in this case was whether the public interest requirement can be met in circumstances where a disclosure is motivated by personal factors. In this case, the ET found that the disclosure was also motivated by a desire to discredit the person overseeing the claimant’s work when her performance was under review. The EAT has ruled that a disclosure can still be in the public interest even if there are also personal motivations for making it. (Bibescu v. Clare Jenner t/a Jenners)
Compensation: A claimant who won her claim of unfair constructive dismissal, direct sex discrimination, and sex and sexual harassment has successfully appealed against the decision to deduct 35% of her compensation on the grounds that she might have left her employment anyway (e.g., due to restructuring and evidence that she was contemplating moving on). The EAT ruled that the original ET had failed to carry out the required exercise of determining the counterfactual had the discriminatory conduct not occurred, and had no proper basis for making a 35% deduction. (KJ v. British Council)
Restriction of proceedings: The EAT has granted a restriction of proceedings order (RPO) against a claimant, Sandra Messi, after she was deemed to have habitually and persistently issued vexatious ET claims without reasonable grounds. She had issued over 50 ET claims, typically alleging discrimination, whistleblowing detriment, or unpaid wages arising from unsuccessful job applications or short engagements, all of which were either struck out, dismissed due to non-attendance at hearings, or withdrawn. The RPO does not preclude the claimant from ever bringing another claim, but rather acts as a filter, requiring judicial approval to continue. (Attorney General v. Messi)