As we start 2026, our January edition provides important updates on changes to UK law resulting from the Employment Rights Act 2025, as well as a new consultation on non-financial misconduct in financial services and changes to statutory sick pay eligibility taking effect from 6 April 2026. We also include the usual round-up of recent interesting case law, including cases on whistleblowing, access to workplace toilet and washing facilities, and the risks associated with employers issuing claims against their employees.
Case law updates
Whistleblowing: A claimant who blew the whistle after resigning from his role and who subsequently had arbitration proceedings brought against him by a charity linked to his employer for an alleged breach of a confidentiality agreement has been permitted to proceed with his whistleblowing detriment claim by the Court of Appeal. The case largely revolves around the scope of judicial proceedings immunity (JPI), a principle that protects those involved in legal proceedings from being sued for things said or done during the litigation. The case establishes that an employer can lawfully initiate proceedings against an employee provided that the proceedings are legitimately unrelated to any protected disclosures made, and are not motivated by retaliation. (Rogerson v. Erhard-Jensen and Ontological/Phenomenological Initiative Ltd)
Insolvency: An employee has been denied access to the central national insurance fund to recover a basic award for unfair dismissal from his insolvent employer because the Employment Tribunal (ET) had not made an award in his favour. The employer became insolvent shortly after filing its ET3 defence, after which the proceedings were stayed (which is standard procedure when a party becomes insolvent), and the administrator refused to permit the stay to be lifted, so there was no scope for the ET to make a finding. Permission has been granted to appeal to the Court of Appeal (CA), and in the meantime, the EAT has urged administrators and liquidators of insolvent employers to consent to ET proceedings where this allows employees to claim from the central fund. (Chaudhry v. Paperchase Products Ltd)
Access to workplace toilet and washing facilities: The ET has found that it was neither sex discrimination nor harassment of female employees to permit access to workplace toilet facilities based on chosen gender rather than biological sex. In reaching this conclusion, the ET analysed the meaning of “men” and “women” in the context of the regulations that govern access to workplace toilet, washing, and changing facilities – these sit separately from the Equality Act 2010 (EqA) and so did not necessarily mean that these terms had the same biological meaning as the Supreme Court found to apply for EqA purposes earlier this year. Although it is a non-binding ET decision that is likely to be appealed, the ET also emphasised the importance of a proper consultation exercise with staff when implementing or changing access to facilities. (Kelly v. Leonardo UK Ltd)
Gender reassignment: A non-binary employee has failed with their claim of gender reassignment discrimination on the basis that they did not have the protected characteristic of gender reassignment. The ET’s analysis, based on the Supreme Court’s decision in For Women Scotland, is that gender is binary and that gender reassignment requires an intention to move from one sex to another. This decision runs contrary to other pre-Supreme Court cases, where non-binary people have been protected under gender reassignment provisions of the EqA, and so this issue will need resolving in the higher courts. The claim was brought after the claimant’s colleagues repeatedly used incorrect pronouns and referred to them by their birth name, and, irrespective of the legal analysis, employers are encouraged to foster inclusive workspaces where individuals’ gender identity is respected. (Lockwood v. Cheshire and Wirral NHS Foundation Trust)
Discrimination: The EqA prohibits someone from instructing, causing, or inducing another person to discriminate. In a long-running dispute, the CA has dismissed a claimant’s appeal, agreeing with earlier decisions that Stonewall (the charity supporting the LGBTQ+ community) had not induced the claimant’s barrister’s chambers to discriminate against the claimant in their response to her expressing gender-critical beliefs on Twitter. While Stonewall did complain about the content of the tweets, these were a protest and were not influential on the investigation and subsequent action taken; this rested entirely with the chambers. (Bailey v. Stonewall and Garden Court Chambers)