Our December 2025 edition provides an important update on last week’s budget and the UK government’s decision to cancel its flagship policy commitment to introduce day-one unfair dismissal rights. We also provide news of a consultation on reforming non-competes, as well as the usual round-up of recent interesting case law, including cases on vexatious litigants, and when false allegations and fabricated documentation can land you in prison.

Case law updates

ET claims – vexatious litigants: In the latest case in a long-running saga, the Attorney General has been granted a permanent Restriction of Proceedings Order (RPO) against notorious serial claimant Dr Christian Mallon on the basis that he is a vexatious litigant. The Employment Appeal Tribunal (EAT) concluded that it was both appropriate and proportionate to treat Dr Mallon as a vexatious litigant for “habitually and persistently, and without reasonable grounds, initiating litigation in the employment tribunal”. Dr Mallon had a lengthy history of applying for jobs, believing that he has submitted as many as 4,000 job applications, and then bringing a discrimination claim thereafter. He admitted not keeping track of how many claims he had started, estimating at least 60–70, and the EAT described his applications as “hopeless”, noting that he had not taken heed of warnings issued to him by employment judges, written decisions, or cost orders made against him. Noting the time and cost implications for both respondents and the tribunal system in dealing with his “completely baseless allegations”, the EAT concluded that an RPO was the only way to stop his campaign of litigation. An RPO is not a bar to litigation, but Dr Mallon must now apply to the EAT for permission to continue or initiate Employment Tribunal (ET) proceedings. (The Attorney General v. Dr Christian Mallon)

Constructive unfair dismissal – affirmation of breach: A long delay between an employer’s alleged breach of contract and an employee’s subsequent decision to resign does not necessarily mean the employee has “affirmed” the contract by treating it as valid and giving up their right to terminate it and bring a constructive unfair dismissal claim. In this case, there was a six-month gap between the alleged breach and the subsequent resignation, but in the intervening period, the claimant had been actively engaging and negotiating with her employer (with trade union representation in support) to try to resolve a dispute regarding the non-payment of sick pay. The EAT concluded that the delay was due to a genuine attempt to resolve the breach rather than an affirmation of the contract. (Barry v. Upper Thames Medical Group)
 
ET claims – contempt of court:  Acting as a cautionary reminder to witnesses in ET proceedings, a claimant (Mr Ajao) has been found criminally liable and imprisoned for contempt of court for knowingly and deliberately making false statements of truth and giving false evidence under oath. The ET found there was “not a shred of truth” in the claimant’s claims, which included serious allegations of sexual harassment and sexual assault by a colleague, and that he had created documentation to bolster his claims. While a finding of contempt of court claims is rare, this demonstrates how deliberate attempts to deceive the court, including making false allegations and producing fabricated documentation can have serious ramifications. (Commerzbank AG v Ajao)

ET claims – reconsideration: A recent EAT decision confirms that, in most cases, fresh evidence will be sufficient to allow a party to apply to the original ET for a liability decision to be reconsidered. In this case, the claim turned on whether the claimant had been offered employment – his associated claims being rejected largely due to the ET’s assessment of the claimant’s credibility and its preference for the employer’s evidence that no such offer had been made. However, the claimant subsequently found an email, which had not been disclosed as part of the initial proceedings, offering him the job. The ET denied a request to reconsider its judgment, concluding that the email had not been deliberately concealed and accepting the sender’s evidence that they genuinely had no recollection of sending it. The EAT accepted the claimant’s appeal, and the case has now been referred to a new ET to be reheard from scratch. Aside from a clarification of reconsideration rules, the case highlights the importance of a proper disclosure exercise. (Mayanja v. City of Bradford Metropolitan District Council)

Whistleblowing: Employees who blow the whistle are protected from dismissal and detriment for doing so, with employers being vicariously liable for the acts of their employees who subject a whistleblower to detriment. However, the law has been unclear whether this extends to situations where the detriment in question is dismissal. The Court of Appeal has considered this technical issue, concluding that a dismissal can constitute a form of detriment, meaning employers can be vicariously liable for the actions of individuals who subject whistleblowers to a detriment by dismissing them. However, that is unlikely to be the end of the matter, meaning there are now two conflicting Court of Appeal decisions on this issue, which can only be resolved by legislation or a decision of the Supreme Court. (Rice v. Wicked Vision)

TUPE – insolvency: A company that rescued part of another business in financial difficulties did not inherit employees under TUPE and was not liable for their dismissal, an exception to the automatic transfer and protection from dismissal provisions applying because the company was subject to terminal insolvency proceedings (a winding-up petition having been made and a provisional liquidator appointed). The case stands as a useful reminder of a limited exception in the TUPE rules that applies in respect of terminal insolvency proceedings, and demonstrates how these exceptions apply from an early stage in the insolvency process. The affected employees can claim some outstanding payments and compensation from the National Insurance Fund. Note that this exception to TUPE is narrow and would not have applied if an administrator rather than a liquidator had been appointed. (Secretary of State for Business and Trade v. Sahonta)

Personal injury claims: An ET does not have jurisdiction to hear personal injury claims brought by employees; however, it can award damages for psychiatric injury arising from discrimination at work. A recent EAT decision has been looking at issues of causation and medical evidence for the purposes of assessing compensation in circumstances where the claimant had a pre-existing psychiatric condition. Whereas the ET had concluded that it was not possible to determine whether the employer had exacerbated the personal injury without expert medical evidence, the EAT found that it should have done its best on the evidence available to make a finding regarding what injury was attributable to the employer. (A and B v. C Ltd)