When HR Crosses the Line: Who Really Makes the Decision to Dismiss?

By Maria Camara

Most employees facing disciplinary proceedings assume that the manager sitting opposite them will decide their fate. That seems reasonable enough. The manager hears the evidence, listens to the employee’s explanation and decides whether disciplinary action is justified.

But anyone with experience of workplace representation knows that matters are not always so straightforward. Human Resources departments often play a significant role behind the scenes. They advise managers, prepare documents, interpret policies and sometimes express strong views about what should happen. There is nothing necessarily wrong with that. Problems arise when advice becomes pressure, or when the person supposedly making the decision is doing little more than putting their name to somebody else’s conclusions.

The Employment Appeal Tribunal (EAT) has examined this question in Shing v University of the Arts London [2026] EAT 154. Its judgment, delivered on 12 October 2026, clarifies how far HR can legitimately become involved in disciplinary decisions.

The answer may disappoint those hoping for strict limits on HR influence. The EAT has confirmed that HR advisers can discuss the seriousness of misconduct and the appropriate approach to sanctions. They are not restricted to giving advice about law and procedure.

That is a significant clarification, though it does not mean HR can simply dictate the outcome of disciplinary proceedings.

A lecturer loses his job

Mr WYC Shing was a senior lecturer at the University of the Arts London. He had worked there since September 2006, giving him more than 14 years of service when he was dismissed in December 2020.

His dismissal followed a brief romantic relationship with a mature female student. Although he was not responsible for marking her work, the university considered that he had crossed important professional boundaries. During their association, he had offered her a ticket to New York. The student subsequently complained about his behaviour.

The disciplinary investigation did not establish sexual harassment. Nevertheless, the university concluded that Mr Shing had behaved inappropriately and dismissed him without notice.

Mr Shing disputed the decision. He argued that the relationship had involved two adults, that he had not deliberately acted improperly and that dismissal was excessive. He also complained that HR had improperly influenced the manager responsible for the decision.

There was a further allegation of race discrimination. Mr Shing, who is Chinese, pointed to two colleagues who had received lesser sanctions following complaints about their behaviour towards students.

The Employment Tribunal rejected his claims. He appealed, but the EAT upheld the original decision.

It is worth considering the underlying circumstances before turning to the legal arguments.

Universities have every reason to insist upon professional boundaries between lecturers and students. Even where both parties are adults, differences in status and authority may create difficulties. Students should be able to study without worrying that personal relationships might affect their treatment or academic opportunities.

Yet we should also be cautious about assuming that every breach of a professional boundary deserves dismissal. Employment law ought to leave room for proportionate responses, particularly where an employee has given many years of service and there is no finding of harassment.

Mr Shing’s length of service was substantial. The investigation had not established the most serious allegation. Those were matters worth weighing carefully.

The tribunal accepted that dismissal was within the range of reasonable responses open to the employer. Interestingly, it acknowledged that its own members would not necessarily all have chosen dismissal.

That illustrates something important about unfair dismissal law. A tribunal is not deciding whether it agrees with an employer’s decision. It is deciding whether that decision fell within the range of responses available to a reasonable employer.

There is a difference, and it is not always one that favours the employee.

The manager, HR and the dismissal decision

The most interesting part of the appeal concerned the part played by HR.

Mr Shing relied on an earlier judgment, Ramphal v Department for Transport [2015], which had raised serious concerns about HR interference in disciplinary investigations.

In that case, an investigating manager initially concluded that an employee’s misconduct warranted a final written warning rather than dismissal. Following substantial involvement by HR, the manager’s report changed. Findings favourable to the employee were altered or removed, and the recommended sanction became dismissal for gross misconduct.

The EAT was concerned that HR had gone beyond advising on procedure and had influenced the manager’s assessment of the evidence and the employee’s blameworthiness. It sent the case back to the Employment Tribunal to reconsider fairness.

For union representatives, the concern is obvious. If a manager is appointed to investigate allegations, the employee should be entitled to expect that the manager’s conclusions are genuinely their own.

There is something deeply unsatisfactory about a disciplinary process in which the hearing officer appears to exercise independent judgement while the real decisions are being shaped elsewhere.

Mr Shing argued that something similar had happened in his case.

The university’s HR adviser, Mr Culver, had corresponded with Professor Crow, the manager responsible for deciding the disciplinary outcome. HR had supplied template letters, prepared documentation and assisted with the dismissal process.

The EAT was not persuaded that this amounted to improper interference.

The evidence showed that HR had provided draft letters covering different possible sanctions, including warnings and dismissal. Professor Crow subsequently indicated that he was likely to dismiss Mr Shing. The relevant memorandum was then prepared for the Vice-Chancellor’s endorsement.

There was no evidence that HR had instructed Professor Crow to dismiss, rewritten his findings to make the misconduct appear more serious or pressured him to abandon a lesser sanction.

That was the essential difference from Ramphal.

The EAT went further, however. It questioned the suggestion that HR advice must always be confined to law and procedure.

An organisation employing hundreds or thousands of people has a legitimate interest in maintaining consistent disciplinary standards. A manager dealing with a serious allegation for the first time may benefit from HR’s knowledge of previous cases. Advice about whether particular conduct amounts to misconduct or gross misconduct can be part of that process.

There is force in this reasoning. Employees should not face radically different penalties simply because one manager is more severe than another.

But consistency can also become a convenient justification for centralised control.

HR advisers are employed by the organisation, and their professional responsibilities may include protecting it from legal and reputational risks. Their advice is not necessarily neutral. Nor should we assume that a manager will feel entirely free to disregard the views of experienced HR professionals or senior executives.

That does not make HR advice improper. It does mean that independence should be judged by what actually happened, not simply by whose signature appears on the dismissal letter.

The EAT recognised this distinction. Undue pressure from HR, or anyone else outside the proper decision-making process, can still affect the fairness of a dismissal. Whether it does so depends on the facts.

The judgment therefore narrows an overly restrictive reading of Ramphal without removing the protection against improper influence.

A further complication in Mr Shing’s case was that Professor Crow had died before the original tribunal hearing. He could not be questioned about his reasoning. The tribunal had to reconstruct events from emails and other documents.

This made the written record especially important. The tribunal concluded that it demonstrated an independent decision, and the EAT found no legal error in that assessment.

Different employees, different punishments

Mr Shing’s race discrimination claim raised another question familiar to trade union representatives. Why do some employees lose their jobs while others, accused of apparently similar behaviour, receive warnings?

He identified two colleagues, referred to as G and H, who had faced disciplinary proceedings concerning their conduct towards students.

G had been investigated over several allegations, including inappropriate behaviour and misuse of authority. However, only two allegations were upheld. These concerned socialising with students shortly before assessing their work and discussing an investigation despite restrictions imposed during suspension.

G received a first written warning.

H had been investigated over inappropriate and unwanted messages to a student. The tribunal accepted that his conduct amounted to harassment, yet he received a final written warning rather than dismissal.

On the surface, that disparity might raise questions. Mr Shing had been dismissed even though sexual harassment had not been established in his case, while another lecturer whose behaviour was found to constitute harassment had retained his employment.

The university argued that the circumstances were materially different.

In G’s case, the allegations actually proved were considered less serious than Mr Shing’s misconduct.

H had acknowledged that his behaviour was wrong, apologised, sought counselling and demonstrated an understanding of professional boundaries. He had also stopped the unwanted messages when the student objected.

Mr Shing, by contrast, was considered insufficiently aware of why his behaviour was unacceptable. He had expressed regret, but the university was not convinced that he fully understood the professional issues involved.

The tribunal accepted these distinctions. It found that the different sanctions did not establish race discrimination, and the EAT agreed.

There is a reasonable legal argument here. Two cases may look similar at first glance but be very different once the evidence is examined. An employee’s disciplinary record, the seriousness of proven misconduct and relevant mitigation can all influence the sanction.

Nevertheless, I would sound a note of caution about placing too much weight on expressions of remorse.

Some people are naturally articulate and persuasive. Others struggle to explain themselves, particularly when under considerable stress. Cultural differences, language difficulties and personal communication styles may influence how an apology is expressed and received.

There is also a danger that employees who contest allegations will be treated more harshly because they refuse to admit wrongdoing.

An employee is entitled to defend themselves. Maintaining innocence should not automatically be interpreted as a lack of insight.

Where misconduct has genuinely been established, willingness to undertake training or accept guidance may be more useful evidence of future conduct than an eloquent apology delivered at a disciplinary hearing.

The tribunal was entitled to assess the particular evidence in Mr Shing’s case. The wider point remains important.

Disciplinary consistency is not achieved merely by comparing the labels attached to allegations. Nor should employers be allowed to explain away obvious disparities with vague claims that every case is different.

Differences in treatment require credible explanations.

Mr Shing had also brought an indirect race discrimination claim concerning the university’s policies on personal relationships and professional boundaries. He argued that language and cultural differences placed Chinese employees at a disadvantage. The original tribunal rejected that claim, finding insufficient evidence of the alleged group disadvantage or that difficulties understanding the policy had caused his conduct. This was not a substantive issue determined in the appeal.

What union representatives should take from the judgment

The practical significance of Shing is not that HR now has a free hand. It is that allegations of improper influence need to be supported by evidence.

When I look at disciplinary cases from a representative’s perspective, one of the questions that matters most is whether the process has genuinely been open-minded. Was the employer investigating what happened, or assembling a justification for a decision already taken?

That distinction can be difficult to establish. An employer may follow every formal step while still approaching the case with a predetermined outcome.

A disciplinary invitation is issued. The hearing takes place. The employee is allowed to speak. A dismissal letter follows. On paper, the procedure looks respectable.

Yet the real issue may lie in the emails exchanged before the hearing or in changes made to an investigation report.

Where improper influence is suspected, representatives should examine drafts, correspondence, internal recommendations and any unexplained changes in findings or sanctions. The timing of communications can be revealing.

Did the investigator originally recommend a warning? Who suggested changing it? Was new evidence discovered, or did somebody simply take a different view of the desired outcome?

Were mitigating circumstances removed from the final report? Did senior management express expectations about the result? Was the employee given an opportunity to answer any new or more serious allegation?

Such questions are more productive than simply objecting to HR’s presence.

Relevant documents may sometimes be obtained through a subject access request, although exemptions and restrictions can apply. Where tribunal proceedings are underway, disclosure may provide a more effective means of obtaining material relevant to the issues in dispute.

Representatives should also study the employer’s disciplinary procedure. If it forms part of the employment contract, additional legal obligations may arise.

The Supreme Court’s decision in Chhabra v West London Mental Health NHS Trust [2013], considered in Shing, concerned interference with a process governed by particular contractual safeguards. The EAT made clear that those circumstances cannot automatically be applied to every workplace.

Even where the disciplinary procedure is not contractual, however, the employer must still comply with the statutory requirement of fairness.

That obligation is not satisfied merely by producing the right paperwork.

For an employee facing dismissal, the consequences are considerable. Losing a job can mean losing financial security, professional standing and confidence. Years of service may be swept aside by one decision.

Employers should therefore be expected to demonstrate that dismissal was genuinely considered necessary, rather than simply the easiest way of bringing an uncomfortable situation to an end.

Fairness is more important than appearances

Shing v University of the Arts London is a significant decision, although its implications should not be exaggerated.

It confirms that HR can properly advise managers about the seriousness of disciplinary allegations and the treatment of comparable cases. Such advice may help employers achieve consistency.

It does not authorise HR to manipulate evidence, impose predetermined outcomes or exert undue pressure on those responsible for disciplinary decisions.

Mr Shing ultimately failed because the tribunal accepted that the university had reached a reasonable decision through a fair process. His discrimination claim also failed because the circumstances of the colleagues he identified were materially different.

Whether dismissal was the best response to his conduct is another question. The original tribunal itself acknowledged that its members might not all have made the same decision.

That is perhaps the most troubling feature of the case from a worker’s point of view. Employment law allows employers considerable discretion, even where dismissal seems harsh.

Trade unions cannot remove that discretion, but we can insist that it is exercised fairly. We can challenge weak evidence, expose inconsistency, demand disclosure and ensure that employees have a genuine opportunity to defend themselves.

There is nothing objectionable about HR offering professional advice. The difficulty begins when advice becomes direction and the supposed decision-maker ceases to exercise independent judgement.

The test of a fair disciplinary procedure is not how many letters were sent, how many meetings were held or whether every box on a checklist was ticked.

It is whether the employee was genuinely heard, the evidence was fairly assessed and the outcome was reached without improper influence.

That is the standard every employer should be expected to meet.

Legal references: Shing v University of the Arts London [2026] EAT 154; Ramphal v Department for Transport [2015] UKEAT/0352/14; Chhabra v West London Mental Health NHS Trust [2013] UKSC 80; Employment Rights Act 1996, section 98; Equality Act 2010, sections 13, 19 and 23.

Autistic Job Applicant’s Stress Misjudged: Tribunal Warned Against Making Assumptions About Disability

An employment tribunal was wrong to assume that an autistic job applicant was not stressed simply because he appeared confident during an interview. The Employment Appeal Tribunal has ordered part of his discrimination case to be heard again. The decision raises important questions about how employers assess disabled candidates and whether traditional recruitment methods give everyone a fair opportunity.

By Maria Camara

How can an interviewer tell whether someone is stressed?

They might look for nervousness, hesitation or visible discomfort. Someone who answers questions confidently and stands up for themselves might be assumed to be coping perfectly well.

But people do not all experience or display stress in the same way. What appears calm on the outside may conceal considerable anxiety.

This was central to the Employment Appeal Tribunal’s decision in Bryce v Coventry City Council [2026] EAT 153, delivered on 9 October 2026.

The appeal tribunal found that the original employment tribunal had wrongly relied upon assumptions about how people normally behave when deciding whether an autistic job applicant had experienced stress.

The case provides an important reminder that disability discrimination cannot always be assessed by applying conventional expectations about behaviour.

What happened?

Mr Bryce, who has Asperger’s syndrome and dyslexia, applied for a team manager position in Coventry City Council’s revenue services department.

Asperger’s syndrome is a term historically used to describe a form of autism and is now generally included within the wider autism spectrum.

Mr Bryce informed the council about his disabilities before his interview in February 2022.

The council agreed to several adjustments. His interview was scheduled at the end of the working day so that additional time could be allowed if necessary. He received the interview questions 24 minutes beforehand, and interviewers agreed to repeat or rephrase questions when required.

Eight candidates competed for two positions. Mr Bryce received the lowest score and was unsuccessful.

He brought claims under the Equality Act 2010, arguing that the interview arrangements had placed him at a disadvantage and that his disability had contributed to his rejection.

The original employment tribunal dismissed his claims in October 2023.

He appealed.

The problem with judging appearances

One of Mr Bryce’s arguments was that his disabilities caused him stress in unfamiliar situations, including job interviews.

The original tribunal accepted that he generally experienced such difficulties. However, it concluded that he had not been stressed during this particular interview.

Its reasoning relied heavily upon the observations of an experienced interviewer, Mr Stinton.

Mr Stinton considered that Mr Bryce appeared confident. He had explained the adjustments he needed and had refused a request to share his computer screen during his presentation.

The interviewer believed that someone experiencing stress might agree to something they did not want to do rather than refuse.

The Employment Appeal Tribunal identified a fundamental problem with that reasoning.

The interviewer was making assumptions based upon how neurotypical people might behave.

Neurotypical generally describes people whose neurological functioning follows patterns regarded as typical.

An autistic person may experience stress without displaying the signs another person expects to see.

The appeal judge, Her Honour Judge Joffe, found that the tribunal had accepted the interviewer’s assessment without considering whether someone with Mr Bryce’s disabilities might express stress differently.

It had also preferred the interviewer’s impressions, despite his lack of specialist expertise in Mr Bryce’s conditions, over Mr Bryce’s own evidence about how interviews affected him.

That conclusion could not stand.

The appeal judge also found that, if the original tribunal had instead concluded that Mr Bryce experienced stress but that it made no material difference to his performance, it had failed to explain that finding adequately.

What does discrimination arising from disability mean?

Mr Bryce’s successful appeal concerned section 15 of the Equality Act 2010.

This deals with discrimination arising from disability.

In plain English, it means treating someone unfavourably because of something resulting from their disability.

For example, a disabled employee might have difficulty concentrating or communicating in particular circumstances. If an employer penalises them for the resulting behaviour, that may amount to discrimination even where the employer is not deliberately targeting the disability itself.

An employer may have a defence if it can demonstrate that the treatment was a proportionate means of achieving a legitimate aim.

That means showing that the decision served a genuine and lawful purpose and was justified in the particular circumstances.

In Mr Bryce’s case, the central question is whether stress arising from his disabilities contributed to the council’s decision not to appoint him.

That question has not yet been finally determined.

Why did his reasonable-adjustments appeal fail?

Mr Bryce also argued that the council had failed to make reasonable adjustments to the interview process.

Employers have a legal duty to take reasonable steps to remove or reduce substantial disadvantages experienced by disabled applicants and employees.

A substantial disadvantage is one that is more than minor or trivial.

Mr Bryce had difficulty quickly recalling examples of his experience and explaining how he met the requirements of the role.

He argued that interviewers should have used closed questions, ultimately proposing questions requiring only yes-or-no answers.

The appeal judge accepted that the wording of questions could affect how quickly someone with his disabilities could respond. On that point, the original tribunal’s reasoning had been wrong.

However, the council had already followed guidance from the National Autistic Society by asking specific questions about relevant experience.

The judge agreed that asking only yes-or-no questions would have prevented the interviewers from properly assessing whether Mr Bryce possessed the skills required for the management position.

His reasonable-adjustments appeal therefore failed.

There was nevertheless another important legal clarification.

The original tribunal had suggested that the council could simply accept the adjustments requested by Mr Bryce without considering anything further.

The appeal judge explained that this was not necessarily correct.

An employer’s duty is not automatically limited to the adjustments a disabled applicant specifically requests.

Employers may need to consider other reasonable measures to address a disadvantage of which they are, or should be, aware.

What was the exact outcome of the appeal?

Mr Bryce succeeded in challenging the tribunal’s treatment of his disability-related stress, but he did not win his discrimination claim outright.

The Employment Appeal Tribunal ordered a fresh hearing before a different tribunal, which must reconsider whether stress arising from his disability contributed to his unsuccessful application and, if so, whether the council’s decision was legally justified.

His separate claim that the council failed to make reasonable adjustments was dismissed.

An additional ground of appeal, concerning whether difficulties demonstrating communication and other skills arose from his disability, was also rejected. That particular argument had not been properly advanced in the original proceedings.

The final outcome of the section 15 discrimination claim therefore remains undecided.

The EAT identified legal errors in the original tribunal’s reasoning. It did not find that Coventry City Council had committed unlawful discrimination.

No compensation was awarded by the appeal tribunal.

Are traditional interviews always fair?

There is a wider issue here.

Recruitment processes often reward candidates who think quickly, speak confidently and produce polished answers under pressure.

Yet performing well at an interview is not necessarily the same as performing well in a job.

A capable worker may struggle to recall examples of their experience in an artificial interview setting but demonstrate excellent judgement and ability in everyday employment.

The appeal judge recognised that alternative assessment methods might sometimes be more suitable for disabled applicants.

Practical exercises, written responses, additional preparation time or different questioning techniques may help employers obtain a more accurate picture of a candidate’s abilities.

That does not mean every candidate should receive identical adjustments. Autism affects individuals differently, and arrangements must reflect their particular circumstances.

The objective should be to assess whether someone can do the job, not simply whether they can perform well in a conventional interview.

The Solidarity view

For Solidarity, this decision has implications beyond recruitment.

Managers dealing with disciplinary matters, capability assessments and grievances should not assume that someone’s outward behaviour accurately reflects their internal experience.

An employee who appears calm may be distressed. Someone who communicates directly may be misunderstood as confrontational. A worker who struggles to answer questions under pressure may nevertheless understand their job extremely well.

Trade union representatives should challenge assessments based upon stereotypes rather than evidence.

Employers are entitled to assess whether people have the necessary skills for a particular role. Disabled applicants are not automatically entitled to appointment or every adjustment they request.

But fairness requires employers to understand the difficulties individuals face and consider reasonable ways of addressing them.

The lesson from Bryce is that people should be judged on their actual abilities and circumstances rather than assumptions about how they ought to behave.

That is an important principle for disabled workers and one which trade unions should defend.

Case reference: Bryce v Coventry City Council [2026] EAT 153, Employment Appeal Tribunal, Her Honour Judge Joffe, 9 October 2026.

Full judgment: Read the official Employment Appeal Tribunal decision

Unfairly Dismissed – Then Blamed for Not Finding Another Job

The Employment Appeal Tribunal’s decision in Kirkland v Caroline Mason trading as Hawthorn Education Services [2026] EAT 108 raises important questions about compensation, the obligation to find alternative work and the treatment of employees who have already suffered an unlawful dismissal.

There is something rather perverse about the way compensation can work in unfair dismissal cases. An employer dismisses someone without following a proper procedure. The employee takes the matter to an Employment Tribunal and establishes that the dismissal was unlawful. You might think the next question would be how much the employer should pay for the financial losses it has caused.

It isn’t always that simple.

Instead, attention can shift towards the dismissed worker. Did they apply for enough jobs? Could they have accepted different working hours? Were they too selective about the positions they considered? Did they spend too much time pursuing other interests when they should have been looking for employment?

These are legitimate questions in some circumstances. Employment law requires people who have suffered financial losses to take reasonable steps to reduce them. But there is a considerable difference between expecting someone to act reasonably and demanding that they reorganise their life to protect their former employer from the financial consequences of an unlawful dismissal.

The Employment Appeal Tribunal’s decision in Kirkland v Caroline Mason trading as Hawthorn Education Services [2026] EAT 108 examines that distinction. It also considers how tribunals should compensate workers for time spent preparing proceedings when the other side has behaved unreasonably.

Both issues have practical implications for trade union representatives.

A Dismissal Without a Proper Procedure

Patricia Kirkland worked as a part-time administration manager for Hawthorn Education Services, a business providing specialist education to children outside mainstream schooling. She had worked there since February 2019, completing 13.75 hours a week and earning an average of £652.91 gross per month.

In August 2022, she was summarily dismissed following allegations of misconduct. There had been no investigation, no proper disciplinary process and no warning that the meeting she attended might result in her dismissal. She received no written dismissal decision and was not offered a right of appeal.

The employer even disputed whether she was an employee, arguing that she was self-employed. That argument failed.

The Employment Tribunal found that Kirkland was an employee and that her dismissal was unfair. It also declined to reduce her compensation on grounds of contributory fault or on the basis that she might have been dismissed anyway had a fair procedure been followed.

The employer had failed to follow basic employment procedures and had dismissed someone unfairly. Kirkland was entitled to compensation.

She claimed £12,405.29 in lost earnings, covering approximately 19 months between her dismissal and March 2024.

However, her employer argued that she had failed to make sufficient efforts to find alternative employment.

Kirkland had made six job applications over approximately twelve months. She was 64 at the time of the tribunal proceedings and referred to her age, health difficulties and the absence of an employment reference as obstacles to finding suitable work.

She was also developing a short-term property rental business, which she had been establishing alongside her part-time employment. Following her dismissal, she spent more time building that business and concentrated on finding employment that would fit around it.

The employer challenged this approach. It argued that she should have applied for more positions and produced advertisements for 14 jobs that it suggested were potentially suitable.

One opportunity involved working for a solicitors’ firm. Kirkland had initially pursued the position because she understood it offered flexible part-time employment. However, when she discovered that attendance would be required on all five working days, she explained that the arrangement would not suit her circumstances. She was not subsequently interviewed.

The original tribunal was critical of her approach. It regarded her as capable, professional and highly employable. It concluded that she had concentrated on expanding her property business rather than making sufficient efforts to find replacement employment.

Instead of awarding the 19 months of lost earnings claimed, it allowed just six months, amounting to £3,917.46.

That was a substantial reduction. More importantly, the Employment Appeal Tribunal found that the original tribunal had applied the wrong legal test.

Who Has to Prove a Failure to Mitigate?

The central issue was the burden of proof.

The original tribunal had stated:

I am not satisfied that the Claimant has mitigated her loss.

Those words were important because they suggested that the tribunal expected Kirkland to prove she had taken reasonable steps to reduce her losses.

But that is not how the law works.

Where an employer argues that compensation should be reduced because a dismissed worker failed to mitigate their loss, the burden is on the employer to prove that the worker acted unreasonably.

This principle has been established for many years. The Court of Appeal addressed it in Wilding v British Telecommunications plc [2002] EWCA Civ 349, and it was examined again in Cooper Contracting Ltd v Lindsey UKEAT/0184/15.

In Cooper Contracting, the Employment Appeal Tribunal drew an important distinction between acting reasonably and not acting unreasonably.

It may have been reasonable for someone to apply for more jobs, accept different employment or pursue opportunities they ultimately rejected. That does not necessarily mean their actual decisions were unreasonable.

People do not always make the choices that a tribunal, looking back months or years later, considers most sensible. They may have good reasons for acting differently. The law allows for that.

Judge Mathew Gullick KC found that the original tribunal had failed to make a positive finding that Kirkland had acted unreasonably. It had considered her circumstances and expressed dissatisfaction with her attempts to find work, but it had not properly addressed whether the employer had proved an unreasonable failure to mitigate.

Nor had it correctly applied the burden of proof.

This is far more than a technical point.

Imagine a worker who has spent years in a part-time job and organised other commitments around those hours. After being unfairly dismissed, they are told that they should have applied for employment involving considerably less flexibility, longer journeys or attendance on more days.

It might have been sensible to consider those jobs. Depending on the circumstances, refusing them might even have been unreasonable. But the worker is not automatically required to abandon every existing commitment because their employer has unlawfully dismissed them.

In Kirkland’s case, the property rental business complicated matters. There was evidence that she had deliberately concentrated on finding work that would fit around its development. The employer was entitled to argue that this limited her efforts to replace her lost wages.

What it could not do was simply assume that those choices justified reducing compensation. It had to prove that her conduct was unreasonable.

The test is objective, but the worker’s circumstances, wishes and reasons for acting as they did are relevant.

An employer may believe that a dismissed worker could have done more. That is not enough.

One of the most useful principles in Cooper Contracting, discussed in the Kirkland judgment, is the warning against imposing too demanding a standard on someone who has already suffered a legal wrong.

After all, the worker would not have been in that position had the employer acted lawfully in the first place.

That does not excuse unreasonable conduct by a claimant. It does mean that the tribunal must ask the right question and place the burden of proof where the law says it belongs.

Job Advertisements Do Not Prove a Worker Could Have Found Employment

There is a familiar tactic in disputes over compensation. The employer produces a collection of job advertisements and suggests that, because vacancies existed, the claimant could have found alternative employment.

It sounds convincing until you examine the evidence.

A job advertisement is not a job offer.

Was the position actually suitable? Did it require qualifications or experience the claimant did not possess? Were the hours compatible with their circumstances? Was the location practical? How many other people might have applied?

And, most importantly, was the claimant unreasonable in failing to pursue it?

Kirkland’s employer had identified 14 advertised positions, but had produced no witness evidence at the remedy hearing. The advertisements were material the tribunal could consider. They did not, by themselves, prove that Kirkland had unreasonably failed to mitigate her losses.

For representatives, this is an area where careful preparation can make a difference.

If an employer produces a list of vacancies, examine them individually. Ask whether the jobs were genuinely suitable and whether the claimant had a realistic prospect of securing them. Do not allow the existence of advertisements to be treated as proof that employment was readily available.

Workers should also keep proper records of their efforts to find alternative employment. Applications, interviews, recruitment agency contacts and explanations for rejecting unsuitable vacancies can all help establish what actually happened.

Although the employer bears the legal burden, it makes sense for claimants to have evidence supporting their account.

Where members have health problems, caring responsibilities or other commitments affecting the work they can undertake, these should be explained and, where appropriate, supported by evidence.

Nobody needs to demonstrate that every decision was perfect. But being able to explain those decisions is important.

There is also a danger in allowing assumptions about employability to replace evidence. The original tribunal considered Kirkland capable, professional and an attractive prospect for administrative work. Those assessments may have been entirely fair. But being a capable worker is not the same as being guaranteed another job.

Nor does finding someone personally impressive establish that they behaved unreasonably by not securing employment sooner.

The Other Battle: Compensation for Preparation Time

Kirkland’s appeal raised a second issue that deserves more attention.

Employment litigation can be extraordinarily demanding. There are claims to prepare, documents to examine, correspondence to answer, witnesses to organise and deadlines to meet. A supposedly straightforward unfair dismissal case can become a prolonged exercise.

This is particularly true when an employer or its representatives conduct proceedings unreasonably.

Kirkland had represented herself before the original tribunal. She complained about the way the employer had defended the claim and submitted a detailed chronology explaining the additional work she believed that conduct had caused.

She sought a preparation time order covering 155 hours.

The tribunal accepted that the employer had acted vexatiously and unreasonably in defending the proceedings. It was particularly critical of aspects of the handling of the case and the apparent failure to engage in negotiations following an earlier hearing.

However, the tribunal also criticised Kirkland’s own approach. It considered that she had spent unnecessary time dealing with minor details and preparing excessively large bundles of documents.

That criticism was something the tribunal was entitled to take into account. Anyone who has represented members knows how easily a case can become buried beneath correspondence, duplicated material and arguments that have little bearing on the actual dispute.

One of the most valuable things an experienced representative can do is identify what really matters and concentrate on it.

But the tribunal then awarded Kirkland £1,000 without explaining how it had calculated that amount.

Her claim involved 155 hours at the applicable rate of £43 an hour, representing more than £6,500 if allowed in full. The tribunal had therefore reduced her claim substantially.

It was entitled to reject preparation time that it considered unreasonable or disproportionate. What it could not do was simply choose a figure without following the calculation required by the rules.

At the time of the proceedings, Rule 79 of the Employment Tribunals Rules of Procedure 2013 required the tribunal to assess the number of reasonable and proportionate preparation hours and multiply that number by the prescribed hourly rate.

Judge Gullick found that the original tribunal had failed to do this.

It had effectively selected a round sum rather than identifying how many hours should properly be allowed.

The EAT recognised that a tribunal does not have to examine every minute of preparation individually. Some estimation is permissible. But there must still be an assessment of the hours allowed, supported by adequate reasoning.

The employer suggested that the £1,000 figure could be interpreted as representing approximately 23.26 hours at £43 an hour.

That argument was rejected. There was nothing in the original decision to suggest that the tribunal had actually undertaken such a calculation.

The rules have since changed, but the principle remains. Under Rule 77 of the Employment Tribunal Procedure Rules 2024, the tribunal must assess the reasonable and proportionate preparation time and apply the prescribed hourly rate. For preparation undertaken in the year beginning 6 April 2026, that rate is £46 an hour.

Preparation time orders are not automatically available simply because a worker wins a case. The legal grounds for making such an order must be established. These include unreasonable conduct of proceedings or a claim or response having no reasonable prospect of success.

A preparation time order is concerned with qualifying preparation undertaken without legal representation. Under the current rules, assistance from a non-lawyer representative does not, of itself, prevent such an order, although a preparation time order and a costs order cannot both be made in favour of the same party in the same proceedings.

For union representatives, the practical point is to keep a proper record when an employer’s unreasonable conduct causes additional work.

Identify what happened, what preparation became necessary and how much time was reasonably spent dealing with it. An application supported by a chronology and records of preparation is considerably stronger than a general complaint that the employer made the case difficult.

And if a tribunal accepts that an order is appropriate, it must then calculate the amount according to the rules.

Winning the Case Should Mean Something

The Employment Appeal Tribunal allowed Kirkland’s appeal on both grounds.

The compensatory award was set aside because the tribunal had failed to apply the correct approach to mitigation. The preparation time award was also set aside because it had not been calculated in accordance with the rules.

Both matters were sent back to a different Employment Judge for reconsideration.

The existing £500 award for loss of statutory rights was preserved, as was the finding that making a preparation time order was appropriate. The 25 per cent uplift for failure to comply with the ACAS Code of Practice would also have to be recalculated if the compensatory award changed. The employer had not challenged the 25 per cent rate itself.

Kirkland had not automatically secured the full compensation she originally claimed. The new tribunal would still have to consider the evidence and determine the appropriate amounts.

Her success was in establishing that the original decisions had been reached through an incorrect application of the law.

It is also worth noting that Kirkland was assisted in her appeal by Patricia Leonard of the Free Representation Unit, who appeared without charge. Without that assistance, an unrepresented claimant might have found it considerably harder to identify and pursue the legal errors involved.

The case illustrates why representatives need to be familiar with the authorities governing compensation, rather than relying entirely on general arguments about fairness.

The original tribunal had not been directed to the relevant authorities on mitigation. The employer’s submissions had emphasised the need for a just and equitable award without properly addressing the established burden of proof.

Section 123(1) of the Employment Rights Act 1996 does require a tribunal to determine what compensation is just and equitable. But section 123(4) requires it to apply the common law rules on mitigation. The general principle of fairness cannot be used to avoid the particular legal test.

That is an argument worth making whenever an employer seeks to reduce compensation because a worker supposedly failed to find alternative employment.

There is a broader concern here, too.

For a dismissed worker, bringing a tribunal claim can involve considerable financial and emotional strain. Employment may have been lost suddenly. Savings may be depleted. The worker may be trying to rebuild their working life while dealing with proceedings that continue for months or years.

Yet after proving that the employer acted unlawfully, the claimant may find themselves answering questions about every decision they have made since losing their job.

Why did they not apply for more vacancies? Why did they not accept different hours? Why did they concentrate on another source of income? Why did they not find work sooner?

Some scrutiny is inevitable. Compensation should reflect actual losses, and workers cannot disregard reasonable opportunities to reduce them.

But we should not lose sight of who created the problem.

Kirkland had worked part-time for several years. She was dismissed without investigation or procedure, and the original tribunal found that she had done nothing to bring the dismissal upon herself. She then had to pursue legal proceedings to establish rights that her employer had denied.

When the question of compensation arose, it was the employer’s responsibility to prove that she had acted unreasonably in failing to reduce her losses.

The EAT did not decide that all her choices were reasonable. It decided that the tribunal had failed to ask the correct question. That distinction is important, and it leaves the substantive issue to be determined properly at the rehearing.

For trade union representatives, Kirkland provides a useful authority to cite when employers argue that a claimant should have applied for more jobs, accepted different working arrangements or made greater efforts to reduce their losses.

It also reinforces the need to challenge inadequately reasoned preparation time awards.

Nobody disputes that dismissed workers should make reasonable efforts to find alternative employment. But there is something fundamentally wrong when an employer can dispense with proper procedures, dismiss a worker unlawfully and then seek to escape much of the financial responsibility by arguing that the worker should have organised their life differently afterwards.

The law places the burden of proving an unreasonable failure to mitigate on the employer.

It is a protection worth knowing about and, when necessary, fighting to enforce.

Report from Pat Harrington

Case: Kirkland v Caroline Mason trading as Hawthorn Education Services [2026] EAT 108.

Decision: Employment Appeal Tribunal, Judge Mathew Gullick KC, 9 July 2026. Published 18 September 2026.

Full judgment: Read the judgment on GOV.UK

Relevant authorities: Wilding v British Telecommunications plc [2002] EWCA Civ 349; Cooper Contracting Ltd v Lindsey UKEAT/0184/15.

Legislation: Employment Rights Act 1996, section 123; Employment Tribunal Procedure Rules 2024, Rules 73–77.

When Words Hurt: Mental Health, Workplace Harassment and the Lessons of McManus v British Airways

The Employment Appeal Tribunal has confirmed that a worker’s mental health can influence whether unwanted conduct amounts to unlawful harassment. But its latest ruling also reveals the difficulties employees face when trying to establish that insensitive treatment has crossed the legal line.

There is a familiar problem in workplace disputes involving mental health. An employee complains that something said by a manager, supervisor or occupational health adviser caused considerable distress. The employer responds that no offence was intended, that the conversation was part of an ordinary management process, or that the employee simply reacted too strongly.

For workers already struggling with anxiety, depression or other mental health difficulties, such responses can make a distressing experience even worse. They may feel that the very condition which makes them vulnerable is being used to dismiss their concerns.

But where does the law draw the line between an insensitive remark and unlawful harassment? Should someone experiencing anxiety or depression be expected to react in the same way as a person without those conditions? And how much weight should a tribunal give to the particular vulnerabilities of the individual concerned?

These questions were considered by the Employment Appeal Tribunal in McManus v British Airways plc [2026] EAT 155, a judgment delivered on 9 October 2026.

The decision offers both encouragement and a warning to workers and their representatives. It confirms that mental ill health can be relevant when deciding whether unwanted conduct has a legally recognised harassing effect. At the same time, it demonstrates that even a genuinely upsetting, inappropriate and disability-related comment will not necessarily amount to unlawful harassment.

For trade union representatives, understanding that distinction is essential.

A difficult return to work

Mrs McManus was a British Airways cabin crew employee who had experienced depression, anxiety and social phobia during the Covid-19 pandemic. British Airways accepted that she was disabled for the purposes of the Equality Act 2010.

Following a lengthy period of sickness absence, she was preparing to return to work in 2022.

That prospect was already causing considerable anxiety. Changes within British Airways meant she would not be returning to precisely the same working arrangements she had previously known. She was also seeking adjustments that would help her manage her health conditions and resume her employment.

She had received support from a mental health support team and had developed a wellness and recovery action plan. She regarded the recommendations arising from that support as important to making a successful return.

British Airways referred her to its occupational health service for assessment.

The subsequent telephone consultation lasted approximately two hours and, according to the tribunal’s findings, did not go well.

Mrs McManus was nervous about the assessment. She found the occupational health practitioner’s approach upsetting, and there were disagreements over what adjustments were appropriate and whose recommendations should carry weight.

During the consultation, the occupational health practitioner made a remark about Access to Work, the government scheme that can provide practical and financial support to help disabled people obtain or remain in employment.

The practitioner told Mrs McManus:

“not for people like you, its for people in wheelchairs”

The tribunal accepted that the remark had been made and related to her disability.

It also accepted that the practitioner had a poor understanding of the scheme. Access to Work is not confined to people with physical disabilities or wheelchair users. Support may also be available to eligible workers experiencing mental health difficulties.

Mrs McManus regarded the comment as harassing and brought proceedings alleging disability discrimination, failures to make reasonable adjustments and disability-related harassment.

However, the original Employment Tribunal dismissed her claims.

Her appeal concentrated on the rejection of the harassment complaint arising from the Access to Work remark.

What does the Equality Act actually require?

Section 26 of the Equality Act 2010 defines harassment related to a protected characteristic.

In broad terms, a person harasses another where they engage in unwanted conduct related to a relevant protected characteristic, such as disability, and that conduct has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

There is an important distinction between conduct intended to cause such harm and conduct which has that effect regardless of intention.

If an employer or manager deliberately humiliates a disabled employee because of their disability, the purpose of the conduct may provide the basis for a harassment claim.

But unlawful harassment can also arise where there was no intention to cause humiliation or offence.

That does not mean every unpleasant or thoughtless remark is unlawful.

Where a claimant relies on the effect of the conduct, section 26(4) requires the tribunal to consider three matters: the claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have the alleged effect.

This creates an assessment that combines the individual’s actual experience with an objective consideration of whether the conduct could reasonably be regarded as sufficiently serious in the circumstances.

An employer cannot escape responsibility simply by claiming that no harm was intended.

Equally, an employee cannot establish unlawful harassment solely by demonstrating that they were upset.

Both sides of that equation matter.

Mental health is part of the circumstances

The central legal question in McManus concerned how the tribunal should approach the claimant’s mental health when assessing reasonableness.

British Airways argued that her mental ill health was relevant to establishing how she subjectively perceived the remark, but should not separately influence the objective assessment of whether the remark could reasonably be regarded as having a harassing effect.

The Employment Appeal Tribunal rejected that narrow approach.

His Honour Judge Auerbach confirmed that mental ill health could properly form part of the circumstances considered when deciding whether the conduct had the prohibited effect.

That is an important clarification.

An employee with a recognised anxiety disorder may experience particular language, behaviour or circumstances differently from someone without that condition.

A worker recovering from depression may be especially vulnerable during a return-to-work assessment. Someone with post-traumatic stress disorder may react particularly strongly to certain forms of confrontation or questioning.

These individual circumstances cannot simply be ignored when assessing what it was reasonable for the conduct to do.

The law does not require tribunals to imagine an entirely abstract employee, stripped of personal characteristics, and then judge every workplace interaction against that fictional individual’s reactions.

The person who experienced the conduct matters.

However, the EAT was equally clear that mental ill health does not automatically make every reaction objectively reasonable.

The tribunal must still consider the whole picture, including the nature of the conduct, the circumstances in which it occurred and its actual effect.

There is an important difference between saying that a condition must be taken into account and saying that the condition determines the outcome.

McManus establishes the former, not the latter.

Why did British Airways win?

At first sight, the result may seem surprising.

The occupational health practitioner had made an inaccurate and insensitive remark about a disability support scheme. Mrs McManus was genuinely distressed, and the comment related directly to her disability.

Yet the tribunal found that the legal threshold for harassment had not been met.

The EAT agreed that this conclusion was legally open to the tribunal.

A major consideration was the setting in which the remark had been made.

This was an occupational health assessment intended to establish what support Mrs McManus needed to return to work. Such consultations can involve difficult, personal and sometimes uncomfortable questions.

The original tribunal accepted that some of the practitioner’s approach could have been expressed differently. Nevertheless, it considered that the practitioner was carrying out a legitimate medical assessment, and that the Access to Work remark arose in a discussion about potential adjustments.

The tribunal also considered the fact that the offending remark formed a relatively small part of a two-hour consultation.

The practitioner appeared to have misunderstood the scope of Access to Work rather than deliberately sought to belittle the claimant.

Importantly, a lack of malicious intention would not, by itself, defeat a harassment claim based on the effect of conduct. But the nature and context of the remark were relevant to evaluating that effect.

The EAT concluded that the tribunal had considered Mrs McManus’s mental health and distress alongside these other circumstances.

It had not simply assumed that her anxiety was irrelevant.

Nor had it been required to reach a different conclusion because her distress was genuine.

Judge Auerbach emphasised that an appeal tribunal should not substitute its own assessment merely because it might have evaluated the facts differently. Intervention requires a legal error or a decision that meets the demanding threshold for perversity.

That threshold had not been reached.

The appeal was dismissed.

This is an important limitation on what the case decides. The EAT did not establish that remarks of this kind are generally acceptable, or that similar conduct could never constitute harassment. It decided that the original tribunal’s assessment was legally permissible on the particular facts.

Insensitive treatment is not automatically unlawful

There is an uncomfortable but necessary lesson in this judgment.

Employment law does not provide a remedy for every instance of insensitive, unfair or thoughtless workplace behaviour.

A manager may handle a conversation badly. An HR adviser may misunderstand an employee’s condition. An occupational health practitioner may use language that is unnecessarily blunt or dismissive.

Such conduct may justify a complaint, additional training, an apology or changes to workplace procedures without necessarily satisfying the legal definition of harassment.

That distinction can be frustrating for workers.

Someone who experiences genuine humiliation may understandably struggle to accept that a tribunal can recognise their distress yet conclude that no unlawful harassment occurred.

But the distinction is deliberate. The Equality Act requires the conduct to have a particular purpose or effect. It is not a general statutory code of workplace courtesy.

This should not encourage employers to tolerate poor treatment.

An employer interested only in whether conduct crosses the threshold for legal liability is setting its standards far too low.

Workplaces should be places where employees are treated with dignity because that is the right way to manage people, not merely because a tribunal might otherwise award compensation.

In occupational health consultations, that responsibility is especially important.

Employees may already feel vulnerable because of illness, prolonged absence or uncertainty about whether they will be permitted to return to their normal duties.

They should be able to expect accurate information, professional sensitivity and genuine consideration of their circumstances.

The importance of Access to Work

The comment at the centre of McManus also highlights a wider problem: misunderstanding the support available to disabled workers.

Access to Work is a government programme designed to help eligible disabled people obtain or remain in employment. Depending on individual circumstances and eligibility, it can provide assistance with practical workplace support, specialist equipment, travel or mental health-related support.

It is not exclusively intended for people who use wheelchairs.

For someone seeking to return after an extended absence caused by depression or anxiety, the possibility of Access to Work assistance may be significant.

An inaccurate statement suggesting that such support is unavailable could discourage someone from seeking help that might make continued employment possible.

Employers and occupational health professionals therefore have a responsibility to understand the scheme properly.

They should also distinguish between Access to Work assistance and an employer’s own obligations under the Equality Act.

An employer’s duty to make reasonable adjustments does not disappear simply because external assistance might be available.

Nor should an employee be expected to navigate complex support arrangements without appropriate guidance.

In McManus, the tribunal concluded that the practitioner’s misunderstanding did not amount to unlawful harassment. That should not obscure the practical importance of ensuring that employees receive accurate advice about the assistance available to them.

What this means for workers experiencing mental ill health

For employees with anxiety, depression or other mental health conditions, the judgment offers a significant point of principle.

Their health can be relevant not only to explaining why they experienced distress but also to the legal assessment of whether it was reasonable for the conduct to have that effect.

A tribunal considering a harassment complaint should not disregard a relevant mental health condition simply because the assessment contains an objective element.

This has practical implications.

Suppose an employee with a diagnosed anxiety disorder is subjected to repeated aggressive questioning by a manager who knows about the condition.

The employee becomes distressed and complains that the questioning created an intimidating environment.

It would be wrong to assess that complaint without considering the employee’s anxiety where it is a relevant circumstance.

The manager’s conduct might be regarded differently if the employer knew that particular approaches were likely to cause significant distress.

But this does not mean that the employee’s condition prevents the employer from asking difficult questions.

Employers remain entitled to investigate complaints, address performance concerns, manage sickness absence and make legitimate decisions about employment.

The question is how they exercise those responsibilities.

There is a difference between asking necessary questions respectfully and using an unnecessarily humiliating or aggressive approach.

The presence of a mental health condition may affect where that line is drawn, but it does not remove the line altogether.

Why the wider pattern of behaviour matters

One of the difficulties in harassment cases is that individual remarks may appear relatively minor when considered separately, even though their cumulative effect is much more serious.

A worker may experience a series of comments, dismissive responses or confrontational meetings that gradually create an intimidating or humiliating environment.

Each incident might appear insufficient on its own.

Taken together, they may present a different picture.

This was another issue raised in McManus.

Mrs McManus argued that the Access to Work remark should not be considered in isolation from other things said during the occupational health consultation.

The wider conversation had included sensitive questioning, disagreements about her proposed adjustments and an approach that she found distressing.

However, the EAT concluded that the tribunal had not ignored this wider context. It had considered the meeting as a whole and was entitled to distinguish the specific remark being challenged from other allegations that it had already assessed.

This is an important point for union representatives.

When representing a member who complains of harassment, it is necessary to identify both the individual incidents and the overall pattern.

Rather than relying upon a general assertion that management has been intimidating or bullying, representatives should establish what was said, when it was said, who was present and how the conduct affected the employee.

If several incidents are said to have produced a cumulative harassing effect, that should be explained explicitly.

The evidence may include emails, meeting notes, contemporaneous complaints, medical information and witness accounts.

It is also important to distinguish between conduct that is merely upsetting and conduct that can reasonably be regarded as violating dignity or creating one of the environments described in section 26.

A carefully documented history can help a tribunal understand the true context instead of viewing every incident as an isolated disagreement.

Evidence of vulnerability can be important

McManus demonstrates why representatives should give careful thought to evidence about a member’s mental health.

It may be established that an employee has depression or anxiety, but that does not necessarily explain how a particular incident affected them.

Where the link is relevant, medical evidence may assist.

An occupational health report, GP letter or specialist assessment might explain particular difficulties associated with the condition.

The employee’s own evidence will also be important.

A member may be able to describe why particular words or actions caused distress, whether similar incidents had occurred previously and what consequences followed.

Was the employee unable to continue working? Did the incident lead to an increase in symptoms? Was medical assistance sought? Did the employee complain at the time?

None of these matters is an automatic requirement for establishing harassment. Nor should a worker’s complaint be dismissed merely because they did not immediately report the incident or seek medical attention.

But relevant, reliable evidence can assist the tribunal in understanding the employee’s experience.

It is equally important to consider what the employer knew.

If an employer has been told about particular vulnerabilities, that may affect the context in which later conduct is assessed.

A manager who has received clear information about an employee’s mental health needs is in a different practical position from someone who has no knowledge of those difficulties.

That distinction does not automatically determine legal liability, but it may be significant when assessing the circumstances.

Harassment is not the only possible claim

Another important lesson is that workers should not assume harassment is the only legal route available when they experience insensitive or unfair treatment connected with mental health.

The Equality Act provides several distinct protections.

Where an employee is disabled within the meaning of the Act, the employer may have a duty to make reasonable adjustments.

A failure to take appropriate steps to remove substantial disadvantages may give rise to a claim even where there has been no unlawful harassment.

For example, an employer might refuse to consider changes to working hours, duties or procedures that could enable a disabled employee to remain in employment.

Depending on the circumstances, that could raise reasonable adjustment issues regardless of whether anyone made offensive comments.

Similarly, section 15 of the Equality Act addresses discrimination arising from disability.

This can occur where a disabled employee is treated unfavourably because of something arising in consequence of their disability, unless the employer can establish the relevant justification. The employer’s knowledge of disability and the statutory conditions must also be considered.

An employer that penalises an employee for disability-related absence or behaviour may therefore face questions quite separate from harassment.

Direct disability discrimination may also be relevant where an employee is treated less favourably because of disability.

These legal claims have different requirements and should not be confused.

In McManus, Mrs McManus had originally pursued several types of disability discrimination complaint, all of which were dismissed by the Employment Tribunal. The appeal concerned the particular harassment allegation arising from the Access to Work comment.

The decision should therefore not be interpreted as determining the outcome of every possible disability-related claim involving similar facts.

For union representatives, the practical lesson is to consider the full range of legal protections rather than placing every complaint under the heading of harassment.

A practical approach for trade union representatives

When a member reports harassment connected with mental health, the first task is to establish a clear account of events.

The representative should understand the precise conduct complained of and the circumstances in which it occurred.

It is then necessary to consider why that conduct is said to relate to disability and whether it had the purpose or effect required by section 26.

If the complaint concerns the effect rather than the purpose, McManus makes clear that the representative should address two questions.

Did the employee actually experience the conduct as violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?

If so, was it reasonable to regard the conduct as having that effect, taking account of the relevant circumstances?

The employee’s mental health may be important to both questions.

But representatives should resist the temptation to argue that the existence of anxiety or depression, by itself, establishes that the employee’s reaction was reasonable.

The stronger argument explains how the condition affected the employee, what the employer knew, the nature of the conduct and why its effect should reasonably be recognised as unlawful harassment.

It may also be useful to examine whether the employer followed its own procedures, whether concerns were raised before the incident and whether less confrontational approaches were available.

Where management claims that difficult questioning was necessary, the representative can legitimately ask whether the questions were relevant, proportionate and conducted professionally.

A legitimate management purpose is not a licence to humiliate employees.

At the same time, a representative must recognise that necessary and appropriately conducted management conversations do not become unlawful harassment simply because they concern matters that an employee finds distressing.

The objective is to distinguish genuine harassment from other forms of workplace disagreement or poor management, while ensuring that legitimate concerns are not dismissed because the employee has a mental health condition.

The danger of labelling workers oversensitive

There is a broader concern arising from cases of this kind.

Workers experiencing mental ill health can sometimes find their credibility questioned precisely because of their condition.

An employee who reports aggressive management behaviour may be described as oversensitive, emotional or unable to cope with ordinary workplace pressures.

Such descriptions can be deeply unfair.

They may also discourage employees from disclosing mental health difficulties or seeking support.

McManus makes clear that mental ill health cannot simply be excluded from the legal assessment of reasonableness.

That matters because there is no single universal standard of emotional resilience against which every employee must be measured without regard to personal circumstances.

The same workplace interaction may have very different effects upon different people.

Recognising that fact does not mean abandoning objective legal standards.

It means applying those standards with a proper understanding of the circumstances of the person concerned.

There must still be limits. Employers must be able to conduct investigations, discuss performance and manage their workforce.

But those responsibilities should be exercised with reasonable sensitivity, particularly where an employee’s disability is known.

Employers who confuse legitimate management with a right to behave aggressively or dismissively may find themselves exposed to legal claims that could have been avoided through better management.

What Solidarity believes

Solidarity believes that protecting the dignity of working people must be a basic principle of employment practice.

Workers should not have to tolerate humiliation, intimidation or discriminatory treatment.

Those experiencing mental ill health deserve the same respect and consideration as employees with physical health conditions.

Mental health difficulties should neither automatically validate every complaint nor provide employers with an excuse to disregard genuine concerns.

The law must balance the need for effective management with the obligation to protect employees from unlawful treatment.

McManus illustrates how difficult that balance can sometimes be.

The judgment confirms that mental health can form part of the assessment of harassment, even at the stage where a tribunal considers whether the alleged effect was reasonable.

But it also demonstrates that the threshold for unlawful harassment remains substantial.

For employers, there is a clear practical message. Do not assume that an employee’s distress can be dismissed as an unreasonable reaction without considering their circumstances. Ensure that managers and occupational health professionals understand disability-related responsibilities and communicate with appropriate care.

For workers, the message is equally important. If you believe you have experienced harassment, document what happened, explain its impact and seek advice about the legal protections available.

For trade union representatives, the case reinforces the importance of constructing arguments around evidence, context and the precise legal test.

A poorly handled meeting may justify a grievance without establishing harassment. But a legitimate management process can still become unlawful if the conduct, purpose or effect crosses the statutory threshold.

The distinction must be examined carefully rather than assumed.

A right to dignity at work

The most significant aspect of McManus is not simply that British Airways successfully defended the harassment allegation.

It is the recognition that a worker’s mental health may be relevant when deciding whether unwanted conduct could reasonably have the effect of violating dignity or creating a hostile or humiliating environment.

That principle acknowledges an important reality about working life.

Employees are individuals, not interchangeable units who all respond identically to pressure, criticism or confrontation.

Their experiences, health conditions and vulnerabilities may affect how workplace behaviour impacts them.

The law is right to recognise that.

However, legal protection must be established through the facts of each case. A tribunal must weigh the employee’s experience against the nature and context of the conduct and the statutory definition of harassment.

There is no automatic answer.

For Solidarity, the wider principle remains straightforward.

A decent workplace should not require employees to endure unnecessary distress before anyone takes their concerns seriously. Nor should respect and sensitivity be reserved only for situations where an employer faces a realistic prospect of losing an Employment Tribunal claim.

Good employment practice demands more than compliance with the minimum legal standard.

Workers experiencing mental health difficulties should be supported, listened to and treated as individuals whose circumstances matter.

That is not an unreasonable expectation.

It is a fundamental part of creating workplaces in which people can work with confidence, security and dignity.

By Maria Camara

Legal reference: McManus v British Airways plc [2026] EAT 155, judgment of His Honour Judge Auerbach, 9 October 2026. The article considers the judgment alongside section 26 of the Equality Act 2010.

The Right to Be Accompanied: A Legal Protection With a Dangerous Loophole

SOLIDARITY TRADE UNION | EMPLOYMENT RIGHTS & CASE LAW

Wolfe v Taka Mayfair Ltd [2026] EAT 106

A worker is called into a meeting with his employers at the end of a shift. He has not been warned that his job is at risk. He has not been told that the meeting is disciplinary or that dismissal is a possible outcome. There is no trade union representative present, no colleague to offer support and no opportunity to prepare a defence. By the time he discovers what the meeting is really about, he has lost his job.

Most people would regard that as an obvious denial of basic procedural fairness. Yet, according to a recent Employment Appeal Tribunal judgment, the employer has not necessarily breached the statutory right to be accompanied.

The reason is remarkably simple. The worker never asked to be accompanied.

That is the uncomfortable lesson of Wolfe v Taka Mayfair Ltd [2026] EAT 106, decided by His Honour Judge Auerbach on 22 July 2026. The judgment exposes a significant weakness in legislation intended to protect workers during disciplinary and grievance proceedings. It also raises an important question about the relationship between rights that exist on paper and rights that can be exercised in practice.

For trade unions, the case deserves careful attention. It illustrates why workers need to understand their rights before they find themselves in difficulty, why employers should be challenged when they fail to follow fair procedures, and why the law itself may need strengthening.

What happened to Mr Wolfe?

Leonardo Wolfe was employed by Taka Mayfair Limited, a restaurant business, as a Head Sommelier and Manager. His employment began on 21 December 2022 and ended on 21 January 2023, a period of just one month.

According to the account he advanced before the Employment Tribunal, the circumstances of his dismissal were particularly troubling.

At the end of a working shift, he was drawn into a face-to-face meeting with the restaurant’s two owners. He had received no advance warning of the meeting’s purpose. Neither its disciplinary character nor the possibility of dismissal had been explained to him.

The employer disputed the characterisation of the meeting, describing it as a performance review rather than a disciplinary hearing. Wolfe maintained that the meeting was one at which the statutory right to be accompanied should have applied.

That disagreement was never finally resolved in the proceedings under consideration. Instead, the case turned on a narrower legal question.

Wolfe had not asked to bring a trade union representative or work colleague to the meeting. He argued that he had been unable to make an informed request because he had not known what was about to happen.

There is an obvious practical difficulty here. A worker cannot readily exercise a right attached to a particular type of meeting if the employer conceals, or simply fails to disclose, the meeting’s true nature.

Wolfe subsequently brought Employment Tribunal proceedings and sought permission to amend his claim to include a complaint that his statutory right to be accompanied had been breached.

The Tribunal refused the amendment. Even accepting his factual account for the purpose of considering the application, it concluded that the proposed claim could not succeed. Section 10 of the Employment Relations Act 1999 required him to have made a request to be accompanied. He had not done so.

Wolfe appealed that decision.

It is important to understand precisely what the appeal concerned. The Employment Appeal Tribunal was not deciding whether the original dismissal was fair, nor whether the employer had behaved properly in every respect. It was deciding whether the Employment Tribunal had been legally correct to refuse an amendment adding a particular statutory complaint.

That distinction matters because an employer may escape liability under one statutory provision while still having acted unfairly or unreasonably under another.

What does the law actually say?

The right to be accompanied is contained in section 10 of the Employment Relations Act 1999. It applies to workers, not merely those who satisfy the narrower legal definition of employee, and it does not depend on a minimum period of service.

The legislation establishes two conditions for the statutory right to become operative.

First, the worker must be required or invited to attend a qualifying disciplinary or grievance hearing. Secondly, the worker must reasonably request to be accompanied.

Where those conditions are satisfied, the employer must permit the worker to be accompanied by an eligible person, generally an appropriate trade union official or another worker employed by the same employer.

The companion is not there merely to observe proceedings. The legislation allows the companion to put the worker’s case, respond to points raised during the hearing, sum up the worker’s position and confer with the worker privately.

A companion cannot insist on answering every question on the worker’s behalf or preventing the employer from presenting its case. Nevertheless, the role provides significant practical protection.

A representative may identify procedural irregularities, challenge unsupported allegations, seek clarification, ensure relevant mitigating circumstances are considered and help prevent an employer from using its greater experience or authority to overwhelm an individual employee.

There is also a statutory postponement right. Where the chosen companion is unavailable, an eligible worker can propose a reasonable alternative date within the statutory five-working-day period, and the employer must postpone accordingly.

These protections are valuable, particularly when dismissal is a possible consequence.

However, the legislation contains a crucial qualification. The worker must request accompaniment before the employer becomes subject to the relevant duties.

That requirement proved decisive in Wolfe’s case.

The argument against the employer’s approach

Wolfe’s argument before the Employment Appeal Tribunal was both practical and persuasive from the standpoint of workplace fairness.

If an employer can avoid the statutory duty simply by failing to explain that a meeting is disciplinary, the protection becomes vulnerable to circumvention.

Consider the difference between two situations.

In the first, an employee receives a letter explaining that they are required to attend a disciplinary hearing, setting out the allegations and warning that dismissal is a possible outcome. The employee requests a trade union representative, and the employer refuses.

That is a straightforward potential breach of section 10.

In the second, an employee is simply told to attend a meeting with management. No allegations are disclosed. No warning is given. During the meeting, the employer raises concerns about performance or conduct and announces dismissal.

The employee may never have requested a representative because there was no reason to anticipate needing one.

Yet the practical outcome is substantially the same. In both cases, the worker faces a potentially career-ending decision without the support that Parliament intended the legislation to provide.

Wolfe argued that allowing the second situation to escape the statutory protection undermined the legislation’s purpose.

He also challenged the suggestion that employees should simply ask for representation whenever they are summoned to an unexplained meeting.

Workers are not always in a position to challenge management. Some may fear that asking for a union representative will be interpreted as confrontational. Others may be unfamiliar with employment law, inexperienced in disciplinary procedures or anxious about their position.

Those fears are especially acute among workers with limited service, insecure contracts or little practical bargaining power.

Judge Auerbach recognised the force of these concerns. Nevertheless, he concluded that the statutory wording was sufficiently clear to prevent the Tribunal from adopting Wolfe’s proposed interpretation.

The judge’s task was to apply the law Parliament had enacted, rather than to rewrite that law in accordance with what might be regarded as desirable policy.

The judgment makes clear that the express wording requires an actual request. Without one, the accompanying obligations in section 10 do not arise.

The judge concluded that any gap in protection was ultimately a matter for Parliament to address.

The difference between legal rights and workplace fairness

One of the most important aspects of the judgment is its treatment of the Acas Code of Practice on Disciplinary and Grievance Procedures.

The Code sets out standards of fairness that employers are expected to observe when dealing with disciplinary matters.

Under the Code, employees facing disciplinary proceedings should ordinarily receive written notification of the allegations, sufficient information to understand the case against them and reasonable time to prepare a response.

They should also be informed of their right to be accompanied.

Paragraph 10 of the Code expressly addresses notification of that right. Yet, as the Employment Appeal Tribunal explained, the Code does not have precisely the same legal status as an Act of Parliament.

An employer’s failure to comply with the Code does not automatically give rise to an independent claim for compensation.

Instead, tribunals must take relevant provisions into account when deciding applicable claims, such as ordinary unfair dismissal. In appropriate cases, an unreasonable failure to follow the Code may also affect compensation, with a potential adjustment of up to 25 per cent.

This creates an important distinction.

An employer who fails to explain the purpose of a disciplinary hearing may have disregarded recognised standards of fair treatment. If an eligible employee is dismissed, that failure may contribute to a finding of unfair dismissal.

Nevertheless, it does not automatically establish a breach of section 10 unless the worker made the required request to be accompanied.

The distinction might satisfy the technical requirements of the legislation, but it is difficult to defend as a coherent approach to workplace justice.

Why should an employer’s obligation to respect a particular statutory protection depend on whether an employee recognised a danger that the employer had failed to disclose?

Acas guidance clearly recognises the value of giving workers proper notice and an opportunity to prepare. The judgment demonstrates that following good practice and complying with the narrow requirements of a particular statute are not always the same thing.

A request made during the meeting could make a difference

Although Wolfe lost his appeal, the judgment contains an important observation that union representatives should not overlook.

Judge Auerbach considered the possibility of a worker discovering, during an unexpected meeting, that formal disciplinary action might be taken.

What if that worker immediately asks for a trade union representative?

The judgment discussed this possibility with reference to Yoshovska v Goldman Sachs International, an Employment Tribunal decision from January 2022.

The suggestion was that a worker who only becomes aware of the disciplinary nature of a meeting once it is underway may still be able to make a reasonable request for accompaniment at that point.

There is nothing in section 10 requiring every request to be made in writing, nor does the legislation prescribe a particular minimum period before the hearing by which the request must be submitted.

It follows that an oral request made during a meeting may be legally significant.

A worker who suddenly realises that a supposed informal discussion has become a disciplinary hearing should therefore make an immediate and explicit request for representation.

The employer may then need to adjourn proceedings to allow the statutory right to be exercised.

Importantly, however, the judge did not finally determine that particular question. He identified it as a potentially arguable route, but it could not assist Wolfe because Wolfe had made no request at all.

That qualification should not be lost. The judgment supports the practical importance of making a request during a meeting, but it should not be presented as definitively settling every question about a late request or adjournment.

The distinction is particularly important in workplace representation, where an overconfident reading of a judgment can be as damaging as misunderstanding the law altogether.

Could the dismissal still have been unfair?

A natural reaction to the case is to ask whether Wolfe could have pursued ordinary unfair dismissal rather than relying on the right to be accompanied.

His exceptionally short employment was a significant obstacle.

At the time of his dismissal in January 2023, employees ordinarily needed two years’ continuous service to qualify for protection against ordinary unfair dismissal.

Wolfe had approximately one month’s service.

There are exceptions where dismissal relates to particular automatically unfair reasons, and discrimination protections are not generally dependent on completing two years’ service. However, the facts described in the EAT judgment do not, by themselves, establish that such an exception applied.

This is one reason the right to be accompanied is so important.

Unlike ordinary unfair dismissal protection under the law applicable to Wolfe’s dismissal, section 10 does not require two years’ service.

A worker may be entitled to the protection from the very beginning of the working relationship.

Indeed, its application is wider in another respect. It extends to qualifying workers rather than being restricted exclusively to employees.

That makes it particularly valuable for people in insecure employment who may have limited access to other employment protections.

The difficulty exposed by Wolfe’s case is that the benefit of this wider protection may disappear at precisely the moment an inexperienced or vulnerable worker needs it most.

There is, nevertheless, another important legal distinction.

The EAT referred to Talon Engineering Ltd v Smith, an earlier decision demonstrating that the statutory right to accompaniment and the general law of unfair dismissal are separate.

A breach of section 10 does not inevitably render a dismissal unfair. Equally, an employer may comply with section 10 and still carry out an unfair dismissal.

Fairness depends on the wider circumstances, including the employer’s reasons, investigations, procedures, and treatment of the employee.

It would therefore be wrong to conclude from Wolfe that employers have unrestricted freedom to dismiss workers at meetings arranged without warning.

They do not.

The judgment decides a specific statutory issue, not the general acceptability of surprise dismissals.

A right without an effective remedy?

There is another aspect of section 10 worth examining: the compensation available when employers breach it.

Where an Employment Tribunal upholds a complaint under section 11, it may order compensation of up to two weeks’ pay, subject to the relevant statutory calculations.

That is a comparatively modest financial remedy.

For a worker who has lost a job, the practical consequences can be far greater than the amount recoverable under this particular provision.

The legislation also provides separate protections against victimisation for exercising, or seeking to exercise, the right to be accompanied.

Section 12 protects workers against detriment for invoking the statutory rights and includes protection against dismissal for that reason. Certain claims arising from dismissal for exercising these rights do not require the ordinary qualifying period of employment.

There is protection, too, for those who accompany or seek to accompany another worker under the statutory arrangements.

These provisions demonstrate that Parliament recognised the risk of employers retaliating against workers or representatives who assert their rights.

Yet the Wolfe judgment exposes a difficulty that arises before retaliation even becomes relevant.

What happens when the worker never gets a meaningful opportunity to assert the right in the first place?

That is the central problem.

The statutory framework protects workers who invoke accompaniment rights, but the particular duty to permit accompaniment can be avoided where no request is made, even if the absence of a request results from the employer’s failure to explain what is happening.

This is an unsatisfactory imbalance.

The employee must be sufficiently informed, sufficiently confident and sufficiently quick-thinking to recognise the situation and invoke the protection. The employer, meanwhile, is not subject to an equivalent express obligation under section 10 to ensure that the worker knows the nature of the meeting and the right that may arise.

That does not mean every employer will exploit the position. Many employers will follow established procedures and allow representation as a matter of course.

The concern is that the law leaves room for less scrupulous employers to take advantage of a worker’s uncertainty.

A statutory safeguard should not depend so heavily on the employee’s ability to anticipate management’s intentions.

Why the judge could not close the loophole

It would be easy to criticise the EAT for reaching a conclusion that appears harsh. That would miss an important feature of the judgment.

Judge Auerbach did not suggest that Wolfe’s concerns were trivial or irrational.

On the contrary, the judgment engaged carefully with the argument that an employer could undermine the protection by withholding information about a meeting.

The difficulty was the statutory wording.

Section 10 expressly requires a reasonable request. There was no dispute that Wolfe had failed to make one.

The judge considered whether the legislation could be interpreted more broadly by reference to its purpose, the history of its introduction or human rights principles.

He concluded that these approaches could not remove a requirement stated unambiguously by Parliament.

The purpose of statutory interpretation is not to give judges unlimited freedom to repair legislation whenever its operation produces an unattractive result.

That is an important constitutional principle, even when its practical consequences are frustrating.

The judgment therefore puts responsibility for any reform where it properly belongs: with Parliament.

The final conclusion was that if the absence of protection in these circumstances represents a legislative gap, Parliament must decide whether to close it.

For unions, that creates an opportunity to make the case for a straightforward and overdue reform.

What should change?

There is a strong argument for amending section 10 so that employers have an express statutory obligation to notify workers of their right to be accompanied whenever they are required to attend a qualifying disciplinary or grievance hearing.

That notification should explain the nature of the meeting, the possible consequences and the worker’s entitlement to representation.

The duty should not depend on the employee requesting information that the employer ought to have supplied in the first place.

It would also be sensible to provide expressly that where an apparently informal meeting develops into one at which formal disciplinary action may be taken, the employer must stop proceedings, explain the worker’s rights and provide a reasonable opportunity to secure representation.

Such requirements would hardly impose an unreasonable burden on responsible employers. Organisations already following the Acas Code should have little difficulty complying.

The change would principally affect employers who fail to observe the standards of transparency and procedural fairness that should already be normal practice.

A further question concerns remedies.

The existing maximum compensation of two weeks’ pay for a straightforward breach of accompaniment rights may provide an inadequate deterrent, particularly where employers deliberately exclude union representation.

There is an argument for stronger remedies where an employer knowingly disregards a worker’s statutory rights, alongside effective protection against retaliation.

The wider issue is that workers should not have to understand complicated distinctions between statutory obligations, codes of practice and qualifying periods merely to obtain fair treatment.

Employment law is already complex. That complexity should not become an advantage for employers who control the disciplinary process.

What Solidarity members should do

The immediate lesson from Wolfe is that workers must be proactive about representation.

Members should never assume that a meeting described as informal, a performance discussion, a review or a routine management conversation cannot have disciplinary consequences.

Where there is uncertainty about a meeting’s purpose, the sensible course is to ask for clarification before attending.

If there is any possibility of formal disciplinary action, members should expressly request accompaniment by a trade union representative.

Making that request in writing creates a useful record, although the statutory requirement does not insist upon written notification.

The following wording would be appropriate:

I would like clarification of the purpose of this meeting and whether any disciplinary action, including a warning or dismissal, is being considered. If this is a disciplinary hearing, I am exercising my statutory right under section 10 of the Employment Relations Act 1999 to be accompanied by a trade union representative. I request that the hearing be arranged to allow my representative to attend.

If the disciplinary nature of a meeting only becomes apparent once proceedings have started, the worker should make the request immediately and ask for an adjournment.

For example:

It now appears that this meeting may result in disciplinary action. I am requesting trade union representation under section 10 of the Employment Relations Act 1999. I ask that the meeting be adjourned so that I can arrange for my representative to attend.

There is no guarantee that every dispute over such a request will be resolved in the worker’s favour. Nevertheless, making the request removes the particular difficulty that defeated Wolfe’s claim: the complete absence of any attempt to invoke the statutory right.

Members should also record what happened, including who attended, what was said about the meeting’s purpose, when disciplinary consequences were first mentioned and how management responded to any request for representation.

These details may become crucial evidence in subsequent proceedings.

It is important to distinguish between a disciplinary investigation, an informal management discussion and a formal disciplinary hearing. The statutory right does not ordinarily apply to purely investigatory meetings or informal discussions that cannot themselves result in disciplinary action. However, workplace policies may provide wider rights, and disability-related reasonable adjustments may create additional obligations.

Members should therefore seek advice rather than assume that the statutory minimum represents the full extent of their protection.

Lessons for union representatives

For trade union representatives, the case has implications extending beyond advising individual members.

One is the importance of challenging employers who use ambiguous terminology to describe meetings.

A meeting does not necessarily cease to be disciplinary simply because management calls it a performance review, fact-finding conversation or informal discussion.

Its actual purpose and potential consequences matter.

If a meeting can result in a formal warning, dismissal or another qualifying disciplinary outcome, the statutory definition may be satisfied regardless of the label the employer attaches to it.

Representatives should examine the employer’s own disciplinary procedure and any contractual or collectively agreed provisions concerning representation.

These may provide protections exceeding the statutory minimum.

A collective agreement, for example, may require advance notice, disclosure of allegations and union representation in circumstances where the precise statutory duty under section 10 has not yet arisen.

It is also worth examining whether the employer has followed the Acas Code, whether the disciplinary investigation was adequate, whether the worker had a meaningful opportunity to respond and whether any dismissal was reasonable in the circumstances.

Wolfe should not encourage representatives to abandon potentially meritorious cases simply because no request for accompaniment was made.

It does, however, mean that an isolated claim for breach of section 10 is unlikely to succeed where the evidence establishes that the worker never made such a request.

Finally, representatives should remember that tribunal claims are subject to strict time limits, generally starting at three months less one day for the relevant employment event, subject to applicable rules and extensions. Acas early conciliation can affect the calculation. Members should seek advice promptly rather than wait for internal proceedings to conclude.

The importance of trade union membership

Perhaps the most significant lesson concerns the practical value of trade union membership.

Employment rights are not self-enforcing.

Workers may possess considerable protections under legislation yet be completely unaware of their existence until a dispute develops.

Even those who know their rights may lack the confidence to challenge management, particularly when they are new to an organisation or worried about losing their livelihood.

An experienced union representative can change that balance.

Representatives understand the relevant procedures, recognise when a supposedly informal conversation has become a disciplinary matter and know when to insist that proceedings are adjourned.

They can identify whether the employer has disclosed the allegations, provided adequate evidence and allowed the worker sufficient time to prepare.

They can also ensure that disciplinary decisions are challenged through the proper channels where there are grounds to do so.

None of this guarantees that every employee will avoid disciplinary action or dismissal. Nor should it.

Employers have legitimate reasons to address misconduct and poor performance. A fair disciplinary system must accommodate those responsibilities.

But it must also ensure that workers are treated with dignity, allowed to answer allegations and given a genuine opportunity to defend themselves.

These principles are not obstacles to effective management. They are essential conditions of fair management.

Solidarity’s approach is to ensure that members do not have to face workplace disputes alone. Where representation rights arise, we want members to exercise them confidently, with access to advice before decisions are taken rather than having to pursue remedies after the damage has been done.

A victory for the wording of the law, but not necessarily for justice

The decision in Wolfe v Taka Mayfair Ltd is legally understandable. The Employment Appeal Tribunal was asked to interpret a statute, and the relevant words leave little room for manoeuvre.

The judge did not invent the requirement that workers request accompaniment. Parliament put it there.

Yet that does not make the outcome satisfactory.

The case demonstrates how a legal protection can be weakened by the conditions attached to exercising it.

A worker who knows a disciplinary hearing is taking place can request representation. A worker who has no idea that a disciplinary hearing is taking place may fail to do so, even though the need for representation is just as great.

The law recognises the former situation but, as this judgment confirms, does not adequately address the latter through section 10.

There is something deeply unsatisfactory about a system in which an employer’s failure to provide information can leave a worker unable to exercise a statutory right, without that failure itself constituting a breach of the particular provision intended to protect them.

The answer is not to criticise judges for applying the law. It is to improve the law.

Parliament should make it an explicit statutory duty to notify workers of their accompaniment rights and provide a meaningful opportunity to exercise them before formal disciplinary action is taken.

Until that happens, workers and their unions must deal with the law as it stands.

For Solidarity members, the message is clear. When management calls you into a meeting and you suspect that your employment may be at risk, establish what the meeting is about and request your union representative. If the meeting unexpectedly turns disciplinary, make that request immediately.

The most important words in a disciplinary meeting may be spoken before the employer has even explained its allegations.

They are the words that ensure you do not face those allegations alone.

Together we are strong.

By Maria Camara

Legal reference: Wolfe v Taka Mayfair Ltd [2026] EAT 106, judgment of HHJ Auerbach, 22 July 2026. The article reflects the law and published guidance reviewed on 14 October 2026. The 2026 Acas consultation draft is not treated as an operative replacement for the existing Code.

Primary judgment: Employment Appeal Tribunal judgment. Relevant guidance: Acas Code of Practice.

Understanding Pay Gaps: Lessons from Next v Thandi

Equal pay cases rarely arrive with fireworks. They tend to come wrapped in spreadsheets, job descriptions and long arguments about “material factors”. But every so often, a judgment cuts through the technicalities and shows us something important about how employers justify pay gaps — and how the law responds.

The Next Retail Ltd & Next Distribution Ltd v Thandi & Others appeal is one of those cases. It centres on a familiar divide: retail staff on one side, warehouse staff on the other, and a pay gap running straight down the middle. The workers argued the gap was discriminatory. The employer said it was simply the labour market at work.

The Employment Tribunal initially sided with the workers on key points. The Employment Appeal Tribunal (EAT) then stepped in and corrected parts of that reasoning. The result is a judgment that matters not just for the claimants, but for anyone fighting pay inequality in sectors where employers lean heavily on “market forces” to explain why some jobs are valued more than others.

Retail vs warehouse: the pay gap at the heart of the case

The claimants were retail workers. Their comparators were warehouse workers. Warehouse staff were paid more — not just in basic pay, but in some additional benefits too.

The tribunal accepted that the retail workers had shown particular disadvantage, based on statistical differences between the two groups and other factual findings. That’s significant. Equal pay claims often fall at the first hurdle because tribunals decide the disadvantage isn’t proven. Here, the tribunal said it was.

But when it came to the employer’s defence — the “material factor” argument — the tribunal rejected Next’s justification. It said the employer hadn’t shown a legitimate aim for the pay difference.

That’s where the EAT disagreed.

The EAT’s intervention: legitimate aims and proportionality

Mr Justice Bourne upheld the tribunal’s finding on disadvantage, but overturned its conclusion on justification. He said the tribunal had misunderstood the employer’s aim.

Next’s aim, taken as a whole, was to pay higher rates to warehouse staff because those roles faced recruitment and retention pressures that retail roles did not. That, the EAT said, is a legitimate aim. And crucially, the employer did not need to justify why it didn’t raise retail pay to match warehouse pay. The only question was whether the higher warehouse pay was justified.

Because the tribunal had approached the question the wrong way round, its alternative finding — that the employer’s justification wasn’t proportionate — also collapsed. The tribunal had focused too much on why retail pay was lower, and not enough on why warehouse pay was higher. That’s a legal misstep, and the EAT corrected it.

On other pay benefits, the tribunal’s reasoning was sound. No error there.

The cross‑appeal: direct discrimination

The workers also argued direct discrimination. The tribunal rejected that claim, and the EAT agreed.

Two points stand out:

Market forces don’t automatically amount to discrimination. Employers don’t have to prove that market pressures affect men and women equally every time they rely on them.
You don’t need a Board member to give evidence for the employer’s reasoning to stand. The tribunal had enough evidence to understand why Next made its decisions, even without senior executives giving live testimony.

That’s a tough outcome for claimants. It shows how high the bar remains for proving direct discrimination in pay cases.

What this means for workers and unions

Market‑forces arguments are here to stay

Employers will continue to rely on recruitment and retention pressures to justify pay gaps. This judgment strengthens that defence. It doesn’t make equal pay claims impossible, but it does make them harder when employers can point to external labour‑market conditions.

Tribunals must ask the right question

The tribunal focused on the retail workers’ lower pay. The EAT says the real question is: Was the higher warehouse pay justified? That framing matters. It shifts the burden and can change the outcome.

Statistical disadvantage still matters

The EAT upheld the tribunal’s finding that the claimants had shown disadvantage. That’s important. Workers can still use statistical evidence to demonstrate inequality — and tribunals must take it seriously.

Direct discrimination remains a steep climb

Unless there’s clear evidence of sex‑based decision‑making, tribunals will usually accept business‑related explanations.

The wider lesson

This case shows the limits of equal‑pay law when employers can point to market conditions. It also shows how easily tribunals can misapply the legal tests — and how important it is for workers to have strong representation capable of challenging those errors.

For unions, the message is clear: You need robust evidence, clear statistical analysis and a strong alternative narrative if you want to challenge market‑forces defences.

For workers, it’s another reminder that fairness and legality are not always the same thing. A pay gap can feel unjust, and still be legally justified.

The fight for equal pay continues — but cases like Thandi show exactly where the pressure points are, and why collective action remains essential.

By Pat Harrington

This article is intended as a general explanation of the decision in Next v. Thandi. It is not legal advice and should not be relied upon as such. The summary is based on publicly available information, including the judgment and reporting from reputable news sources, and is provided for information and comment only. Individual cases turn on their own facts, and anyone affected by issues raised here should seek advice from a qualified legal professional. Solidarity Trade Union accepts no liability for any loss arising from reliance on this material.

ABC v Huntercombe: when a failing hospital changes hands and the law looks the other way

Sometimes a case doesn’t just expose a bad institution—it exposes a hole in the law. ABC v Huntercombe (No.12) Ltd & Ors [2026]EWCACiv1161 is exactly that. It’s about a young woman, a failing psychiatric hospital in Maidenhead, a change of ownership, and a legal system that ultimately tells her: you may have been wronged, but you may never be compensated.

This is the Court of Appeal’s decision, in plain English, with the BBC’s reporting and the judgment woven together.

The hospital, the patient, and the transfer

Huntercombe Hospital in Maidenhead was a privately run psychiatric facility for young people. At the time relevant to this case, it was owned and operated by Huntercombe (No.12) Ltd, part of the Huntercombe Group.

The claimant—known only as ABC for legal reasons—was placed there for about four months in 2018–2019. She alleges that during that placement she was:

mentally and verbally abused by staff
restrained on more than 200 occasions

Every single one of those events happened before the hospital changed hands.

In around March 2021, the hospital undertaking was transferred under the TUPE 2006 Regulations to Active Young People Limited (AYPL). Two clinicians involved in her care—her consultant psychiatrist and responsible clinician—moved across with the transfer and continued working under AYPL.

By 2023, the hospital had closed. The BBC describes it bluntly as a “failing hospital for young people” that shut after years of problems.

Why she couldn’t just sue Huntercombe

ABC initially sued Huntercombe alone. That’s the obvious defendant: it owned and ran the hospital at the time of the alleged abuse.

But Huntercombe went into liquidation. The Court of Appeal explains the practical problem: Huntercombe’s insurance arrangements included a £250,000 per‑claim excess. If claims succeeded, that excess would have to be met by the insolvent company itself. The judges accepted that this could “wipe out most or all” of ABC’s damages.

So ABC did what any rational claimant would do: she looked for someone else who might be legally responsible.

She turned to AYPL, the company that took over the hospital in 2021.

The legal question: does vicarious liability travel with the staff?

The case turns on a narrow but high‑stakes question under Regulation 4(2)(a) of TUPE 2006:

When a business is transferred under TUPE, does the old employer’s vicarious liability to an injured third party (here, a patient) transfer to the new employer?

Regulation 4(2)(a) says that, on a relevant transfer, “all the transferor’s rights, powers, duties and liabilities under or in connection with” any employment contract move to the transferee.

It was already established in Bernadone v Pall Mall Services Group [2001] ICR 197 that tort liabilities owed to employees can transfer under TUPE, because they arise “in connection with” the employment contract.

ABC’s argument was to push that logic one step further. If an employer’s tort liability to an employee can transfer, why not its vicarious liability to a third party, where that liability arises from acts closely connected with the employee’s work?

Her case was simple in concept:

Huntercombe’s staff allegedly abused and restrained her before 2021.
Huntercombe is now insolvent and may not be able to meet the insurance excess.
AYPL took over the hospital and the staff under TUPE.
Therefore, AYPL should have inherited Huntercombe’s vicarious liability for those pre‑transfer acts.

His Honour Judge Bird, sitting in the High Court, rejected that argument at a preliminary trial in 2025. ABC appealed.

The Court of Appeal: TUPE doesn’t carry third‑party vicarious liability

The appeal was heard by Bean LJ, Coulson LJ (who gave the leading judgment), and Sir Launcelot Henderson on 22 July 2026, with judgment handed down on 8 September 2026.

The Court of Appeal dismissed the appeal. Their reasoning can be boiled down into a few key points.

1. TUPE is about employees’ rights, not third‑party claimants

The court started from the Acquired Rights Directive, the EU instrument from which TUPE is derived. Its purpose is to safeguard employees’ rights when their employer changes—not to create new rights for customers, patients, or other third parties.

So when Regulation 4(2)(a) talks about liabilities “under or in connection with” employment contracts, that phrase has to be read in that context: it’s about liabilities that matter to employees.

2. Vicarious liability doesn’t give employees any rights

Counsel for ABC accepted that an employee has no relevant right against the employer in respect of its vicarious liability to a third party. The court agreed.

Vicarious liability is described as “secondary” and “parasitic” on the employee’s own liability to the third party. It’s a legal construct that helps injured third parties sue employers, but it doesn’t protect employees. In fact, under cases like Lister v Romford Ice and Lifestyle Equities CV v Ahmed, an employer can seek a full indemnity from the negligent employee for damages paid out.

So, from the employee’s perspective, the employer’s vicarious liability is not a benefit; it’s potentially a risk.

3. “In connection with” is wide, but not limitless

The court accepted that “in connection with” is language of very wide import. But it’s also a “protean” phrase whose meaning depends on the surrounding words and the legislative purpose.

Here, the purpose is to protect employees’ rights. Because vicarious liability to third parties does not give employees any rights under their contracts, it does not arise “in connection with” those contracts for TUPE purposes.

4. TUPE’s disclosure regime is about employee claims, not third‑party claims

Regulations 11 and 12 of TUPE require the transferor to give the transferee information about employees and their rights, including existing claims. That allows the transferee to understand what liabilities it is taking on.

There is nothing in TUPE that requires disclosure of third‑party tort claims. The Court of Appeal treated that silence as deliberate. If Parliament had intended transferees to inherit vicarious liability to third parties, it would have required disclosure of those claims too.

5. You don’t make a new owner liable for historic events without clear words

The court emphasised that allowing a third party to sue a transferee with no involvement in the events would be “at odds with ordinary legal principle” unless there were clear statutory wording to permit it. There isn’t.

So the court concluded:

Regulation 4(2)(a) does not transfer the transferor’s vicarious liability to third parties for pre‑transfer acts.

That applies both to common‑law tort claims and to the human‑rights allegations ABC had also raised.

The wider context: a failing hospital and dozens of claims

The BBC report adds the human context the judgment only hints at.

Around 50 similar claims by former Huntercombe patients are waiting to be managed by the court.
In February 2022, a 14‑year‑old girl, Ruth Szymankiewicz, was unlawfully killed at the hospital after being left unaccompanied by a staff member on his first shift. An inquest jury reached that conclusion in August 2025.

The Court of Appeal was clearly aware that this wasn’t an isolated complaint. Huntercombe was a troubled institution, and AYPL inherited a hospital with serious issues it “could not have known” about at the time of transfer.

What the judges said about the claimant herself

One of the most striking passages in the judgment is the court’s treatment of ABC personally. They went out of their way to say she was not being criticised for bringing the claim.

They accepted that she:

“has suffered loss and damage”
may not be able to recover damages
and that this is “through no fault of her own”

That’s as close as appellate judges get to saying: we think you may have been badly treated, but the law doesn’t give you a route to compensation from this defendant.

The result

The Court of Appeal upheld HHJ Bird’s decision. The key holding is stark:

TUPE Regulation 4(2)(a) does not transfer an employer’s vicarious liability to third parties for pre‑transfer acts.
That liability remains with the transferor—here, Huntercombe.

For ABC, that means AYPL is not liable for what allegedly happened to her in 2018–2019. Her only route is against Huntercombe, a company in liquidation with an insurance structure that may make meaningful recovery impossible.

For the law, it means a clear line has now been drawn: when a business changes hands under TUPE, employees’ rights travel; third‑party vicarious liability does not.

For the dozens of other former patients, it’s a warning. The courts may accept that they were harmed. They may even say so in judgment. But unless Parliament changes the rules, the legal system may still leave them with nothing.

By Pat Harrington

The judgment can be found here:

https://www.bailii.org/ew/cases/EWCA/Civ/2026/1161.html

Disclaimer

This article is intended as a general explanation of the Court of Appeal’s decision in ABC v Huntercombe (No.12) Ltd & Ors [2026] EWCA Civ 1161. It is not legal advice and should not be relied upon as such. The summary is based on publicly available information, including the judgment and reporting from reputable news sources, and is provided for information and comment only. Individual cases turn on their own facts, and anyone affected by issues raised here should seek advice from a qualified legal professional. Solidarity Trade Union accepts no liability for any loss arising from reliance on this material.