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Our November 2026 edition provides guidance for employers on the enhanced obligations to prevent harassment at work effective from 30 October 2026, including new guidance from the Equality and Human Rights Commission and Acas. We also provide updates on the new rules on trade union access agreements and the employment-related impact of the Autumn Budget, including plans to reform post-termination restriction use. Finally, we provide a round-up of interesting case law.
Case law update
Compensation – mitigation of loss: Employees claiming compensation for loss of earnings after being unfairly dismissed are required to make reasonable attempts to mitigate their loss by finding alternative employment. In this case, the claimant chose to prioritise growing a business over seeking new employment, and the Employment Tribunal (ET) found that the claimant had unreasonably failed to mitigate their loss. The Employment Appeal Tribunal (EAT) overturned the appeal, finding that the ET had incorrectly placed the burden on the employee to show that they had mitigated their loss. The EAT provided a helpful reminder that the burden is on the employer to show that an employee has acted unreasonably and not on the employee to show that they have acted reasonably. With the cap on unfair dismissal compensation being removed on 1 January 2027, arguments about mitigation will become more prevalent, and this case is a helpful reminder to employers that the burden is theirs to discharge. (Kirkland v. Mason t/a Hawthorn Education Services)
Harassment: An EAT decision this month reminds us that, for a harassment claim to succeed, the act complained of must not only have had the purpose or effect of violating dignity or creating a hostile, intimidating, or offensive environment, but it must also have been reasonable to regard the conduct as having had that effect. In this case, when the disabled claimant was returning to work after a long-term sickness absence due to anxiety and depression, she was told by occupational health that the Access to Work scheme was not for her, as it was for people in wheelchairs. While this comment was related to her disability and she felt harassed, it was found on the facts that it was unreasonable for the comment to have had this effect. Although her mental health was a factor to consider in this analysis, it did not automatically mean her reaction was reasonable. (McManus v. British Airways)
Unfair dismissal – decision-making: In a dismissal process, it is common for HR to attend the hearing to provide support and guidance to the decision-maker. In this case, the claimant argued unsuccessfully that the extent of HR involvement rendered the dismissal unfair. In a helpful case for employers, the EAT rejected the argument that HR involvement in advising on a decision to dismiss and an appropriate sanction necessarily rendered the dismissal unfair. While the decision ultimately rests with the disciplinary chairperson, who should not be pressured or influenced by someone else, the EAT recognised that HR plays an important role in ensuring consistency of approach. In this case, HR had not crossed the line into improper involvement. (Shing v. University of the Arts London)
Wrongful dismissal: In this case, an ET found that an employee who was summarily dismissed for gross misconduct two weeks before accruing the qualifying service for unfair dismissal was wrongfully dismissed. The claimant was subject to a performance improvement plan (PIP) but was ultimately dismissed without notice for gross insubordination. The ET was satisfied that performance concerns justified a PIP and that the claimant’s performance and conduct may have resulted in his eventual dismissal, but at the time of his dismissal, summary dismissal could not be justified based on his conduct. Evidence revealed that the employer acted because “time was of the essence”, something for employers to be mindful of as the unfair dismissal qualifying period is set to reduce to six months from January 2027. (Rossi v. Cell Therapy Catapult Ltd)
Neurodiversity: In an interesting reasonable adjustments case involving a neurodivergent job applicant, an EAT decision highlights how interviewers should not assume that a neurodivergent candidate will feel or react in the same way as a neurotypical candidate, in this case, in their response to stress. The case also highlights how standard competency-based interviews may not be suitable for some neurodivergent candidates, and that employers should consider whether there is an alternative way to assess suitability for a role. It also clarifies that an employer should not simply take someone’s requested adjustments at face value; while these are clearly relevant, an employer does not necessarily discharge its duty to make reasonable adjustments by making only the requested adjustments if other adjustments would be reasonable to alleviate a known disadvantage. (Bryce v. Coventry City Council)
Tribunal procedure – strike out: The EAT has upheld a decision to strike out a claim in circumstances where there was no reasonable prospect that the claimant, a litigant in person with post-traumatic stress disorder that was exacerbated by the litigation, could attend a final hearing in the foreseeable future. Alternatives had been considered, but in the absence of any other suitable arrangements, and after a detailed consideration of the background and medical position, it was reasonable for the ET to conclude that a fair hearing was no longer possible. (D v. Greater Glasgow Health Board)