Our June 2026 edition provides a round-up on interesting case law and legal updates, including confirmation that the unfair dismissal reforms will go ahead from 1 January 2027, various developments around single sex spaces, and cases providing helpful clarity around compensation reductions in unfair dismissal cases for contributory fault and reinstatement. We have also seen consultations launched on strengthening rights for carers and on shaping the detail of the proposed reforms to zero hours contracts.

 Case law update

Discrimination: The Employment Appeal Tribunal (EAT) has provided some pithy guidance for Employment Tribunals (ETs) on the burden of proof in discrimination claims, setting out the questions that should be asked: (i) what is the act of alleged discrimination towards B?; (ii) who is the alleged discriminator (A)?; (iii) did A do the act to B?; and (iv) are there facts from which the ET could decide, in the absence of another explanation, that A did the act to B because of the relevant protected characteristic? If, following a logical analysis, there are facts from which the ET could decide, in the absence of another explanation, that A did the act to B because of the relevant protected characteristic, then there will be an inference of discrimination and the burden will be on A (or their employer) to prove that the acts were not done to B because of the relevant protected characteristic. The EAT went on to clarify that unfair, unreasonable, or even appalling treatment does not necessarily justify any inference of discrimination. (Clifton Diocese v. Parker)

Whistleblowing: A recent EAT decision provides a helpful reminder that to constitute a “qualifying disclosure” for whistleblowing purposes, the disclosure must have sufficient factual content and be sufficiently specific about the alleged wrongdoing, and that the role and circumstances of the person making the disclosure will be relevant to whether they had a reasonable belief that the wrongdoing being alleged had occurred. In this case, a sales manager argued she had been dismissed for making a protected disclosure that patient safety was at risk due to the absence of written contracts in place with the parties supplying medical appliances to patients. However, the EAT concluded this was not a qualifying disclosure – her allegations were general in nature with no evidence or explanation of how the lack of contracts and the risk to health and safety of patients were linked. Further, even if there had been a sufficient disclosure of information, on the evidence, the claimant’s seniority and state of knowledge meant the original ET had been entitled to conclude that she did not have a reasonable belief in the connection. (Capeling v. TFX Group Ltd)

Equal pay: When assessing whether work is of “equal value” for equal pay claims, the Court of Appeal (CA) has approved a decision to focus on the content of job training manuals, rather than detailed witness statements and job descriptions. Although a departure from the usual approach, the CA was satisfied that in this case, the training documentation was more objective evidence of the reality of the requirements and demands of the relevant roles. (Tesco Stores Ltd v. Element)

Discrimination – workplace facilities: A female claimant has succeeded with her claim of discrimination and harassment on grounds of sex and her gender critical beliefs because of her employer’s policy to allow staff to use single sex toilet and washing facilities in line with their gender identity once they fully presented in that gender role. It was accepted that the claimant, who is Muslim and suffers from PTSD from experiencing male sexual violence, was disadvantaged by the policy and the ET was critical that her employer had not explored less discriminatory options, such as providing gender-neutral facilities. The ET also found that the policy amounted to unwanted conduct towards the claimant, with the reasonable effect of violating her dignity and creating an intimidating environment. (LS v. NHS England)

Unfair dismissal – contributory fault and reinstatement: The EAT has been considering the approach to reinstatement and reductions in compensation for contributory fault after a finding of unfair dismissal. In this case the claimant was summarily dismissed after posting details of a workplace grievance on social media. The dismissal was unfair (the claimant had not committed gross misconduct in circumstances where he had not been sent a copy of the internet usage policy or guided on social media use, the employer had not asked him to take the post down, and where there was little evidence of any adverse impact of the posts on the employer) and the ET ordered reinstatement and a 10% reduction in compensation for contributory fault due to his conduct, including subsequent posts made both before and after the date of his dismissal. On appeal, the EAT explained that an employee’s conduct will be relevant to whether it is just and equitable to order reinstatement, but not to whether it is practicable for the employer to comply with a reinstatement order. Further the ET had made an error in not focussing on whether the employer genuinely and rationally believed at the date of the hearing that reinstatement was not practicable, and instead making its own conclusions on what was practicable. In respect of compensation, the EAT clarified that there is a different approach in respect of basic and compensatory awards – in analysing a reduction to the basic award, the ET should consider blameworthy conduct in the period up to the date of dismissal (or notice of dismissal), whereas in analysing any reduction to the compensatory award, conduct up to the appeal outcome may be taken into account. This highlights the importance of having a clear timeline of events where arguments of contributory fault are being made. (DHL Services v. Ignatowicz)

Fixed term workers: A fixed term employee who was excluded from a training opportunity was not less favourably treated because of his fixed term status. The claimant was engaged on an 18-month fixed term contract but had not been told of a training course designed for his level to progress to the next stage of his career. The claimant subsequently became a permanent employee but later resigned, bringing claims for constructive unfair dismissal and less favourable treatment as a fixed-term employee. Aside from his claims being out of time, they were found to have no merit in circumstances where the claimant had shown no interest in progressing to the next career level, was imminently due to leave, was experiencing personal difficulties, and resigned for a better paid role. Whereas the original ET had said the time and cost of a fixed term employee attending the training course meant his exclusion was objectively justified, the EAT clarified that cost alone cannot justify discriminatory treatment but may be a factor forming part of a wider legitimate aim. (Komeng v. National Highways Ltd)

ET compensation: A claimant’s state benefits (specifically his personal independence payments (PIP)) could legitimately be set off against his award for unfair dismissal and disability related harassment – there was a sufficient correlation between the PIP benefit and the unlawful discrimination suffered by the claimant, and no rule in law preventing the deductions being made. The claimant also lost an argument that the PIP should be set off against notional care costs rather than lost earnings as these losses had not been claimed for. (Foat v. DWP)

Employment status: In a case highlighting the holistic approach needed to assess employment status, the first-tier tax tribunal has concluded that football referees’ individual match contracts were not contracts of employment. Whilst the Supreme Court had already determined that the tests of both mutuality of obligation and control were met, pointing towards employment, the multi-factorial test (e.g., looking at all the other factual background and context) was referred back to the tribunal, which concluded that there were insufficient hallmarks of an employment relationship. (Professional Game Match Officials Ltd v. The Commissioners for HMRC)