Dancing on the Edge of “Information”: Capeling v TFX Group Ltd [2026] EAT 57

Some cases arrive at the Employment Appeal Tribunal like thunderclaps, reshaping doctrine or unsettling long‑held assumptions. Others arrive quietly, almost modestly, but leave behind a sharper understanding of the law’s boundaries. Capeling v TFX Group Ltd is firmly in the second category: a small case with a precise point, a reminder that whistleblowing protection is not a catch‑all shield but a carefully defined statutory mechanism with limits that matter.

At its heart, this appeal was about a single question: when does a workplace concern cross the line from a vague complaint into a protected disclosure? The answer, as the EAT makes clear, is not when the claimant believes it should — but when the law says it does.

The Story Behind the Appeal

Mrs Capeling had been employed as a National Sales Manager from March to September 2022. Her dismissal was abrupt — immediate, with only a week’s wages in lieu of notice — and justified by the employer as a response to poor performance. She, however, saw a different narrative: one in which she had raised concerns about health and safety, only to be punished for speaking up.

This disclosure, according to the claimant, was a warning that the company lacked written contracts with certain Dispensing Appliance Contractors (DACs), and that this absence was putting patient safety at risk — a risk she suggested might even be deliberately concealed.

She brought claims of automatic unfair dismissal and detriment for making protected disclosures. Three alleged disclosures were put forward, but by the time the case reached the EAT, only one remained in dispute: the so‑called third disclosure.

It sounds dramatic. It sounds like the kind of thing whistleblowing law was designed to protect. But the Tribunal — and later the EAT — were not persuaded.

The Legal Fault Line: “Information” vs. “Allegation”

The Tribunal’s reasoning, upheld on appeal, turned on two deceptively simple points.

1. The claimant did not disclose “information”

The EAT agreed that what the claimant provided was essentially:

a factual statement: some DAC contracts are missing, and
a broad, unparticularised assertion: this is putting health and safety at risk.

The Tribunal was entitled to conclude that this second part — the health and safety claim — was too general, too unsubstantiated, to amount to “information” under the statutory test

Whistleblowing law draws a line between:

information (which can qualify), and
allegations (which often do not).

A protected disclosure must convey facts, not just fears. It must tell the employer something concrete, not simply gesture toward a risk.

2. Any belief in a health‑and‑safety link was not reasonable

Even if the claimant genuinely believed that missing contracts endangered patients, the Tribunal found — and the EAT accepted — that this belief was not reasonable for someone in her position, with her knowledge of the business.

This is a crucial point. Whistleblowing protection does not require the worker to be right, but it does require them to be reasonably wrong. A belief that is speculative, unresearched, or disconnected from the worker’s actual role will not suffice.

Why This Case Matters

On the surface, Capeling is a narrow decision. But beneath it lies a broader message about the architecture of whistleblowing law.

1. The law protects disclosures, not anxieties

The claimant’s concern may have been sincere. But sincerity is not the test. The law demands specificity: facts, details, something that can be investigated. A generalised “this could be dangerous” will rarely be enough.

2. Reasonableness is contextual

The Tribunal looked at the claimant’s role, her knowledge, and the nature of the contracts. It concluded that she lacked a reasonable basis for linking missing paperwork to patient harm. This is a reminder that whistleblowing protection is not a free‑floating right — it is tethered to what the worker actually knows and can reasonably infer.

3. The EAT will not rescue weak appeals

The judgment is crisp, almost brisk. The EAT saw no error of law, no misdirection, no misapplication of the statutory test. The appeal was dismissed without ceremony.

The Human Story Beneath the Legal One

What lingers after reading this case is not the legal test — though that is important — but the human texture beneath it.

A worker dismissed abruptly. A belief, perhaps honestly held, that she was raising something important. A sense of injustice that propelled her through the Tribunal and into the EAT. And then the cold clarity of the law: not every workplace concern is a protected disclosure, and not every dismissal following a complaint is whistleblowing retaliation.

There is a melancholy to cases like this. They remind us that employment law is not a moral tribunal; it is a statutory framework with defined thresholds. The claimant may have felt she was doing the right thing. The Tribunal may even have believed she acted in good faith. But good faith alone is not enough.

The law asks:
What did you say?
What did you know?
And was your belief reasonable?

In Capeling, the answers did not meet the statutory bar.

Conclusion: A Small Case with a Sharp Edge

Capeling v TFX Group Ltd will not make headlines. It will not reshape doctrine. But it will sit quietly in the background of future whistleblowing cases, reminding lawyers and claimants alike that:

vague assertions are not disclosures,
belief must be grounded in reason, and
the law protects information, not speculation.

It is a case about boundaries — the boundary between concern and disclosure, between belief and reasonable belief, between dismissal and protected dismissal. And like all boundary cases, it sharpens the edges of the law.

By Pat Harrington

Court Decision: Volunteers Are Not Workers Under Employment Law

Royal Mencap Society v Tomlinson‑Blake [2021] UKSC 8

This case confirms that a volunteer with no contractual obligation to perform work is not a worker under the Employment Rights Act 1996. The absence of mutuality of obligation and the purely voluntary nature of the arrangement were decisive.

Overview

This case sits at the intersection of care work, low‑paid labour, and the legal architecture that distinguishes work from service. It is a reminder that the law’s categories—worker, employee, volunteer—are not moral judgments but contractual ones. The courts were asked to decide whether a volunteer who attended a callout, despite having no obligation to do so, could be treated as a worker and therefore entitled to statutory rights.

The answer, delivered with the cool precision of appellate reasoning, was no. The absence of mutuality of obligation—no duty to attend, no duty to offer work—meant the relationship never crossed the threshold into worker status.

Facts

Mr Groom volunteered with the Croydon Relief Organisation (CRO), assisting vulnerable service users and occasionally attending callouts. The CRO handbook set expectations of professionalism and attendance, but crucially, it did not bind him contractually. He received reimbursement of travel expenses only—no wages, no honorarium, no retainer.

In 2016 he attended a callout and later claimed he was a worker under the Employment Rights Act 1996, seeking unpaid wages and holiday pay. The Supreme Court, drawing on the principles articulated in Uber BV v Aslam, emphasised that worker status requires:

• Personal service, and

• Mutuality of obligation—the employer must be obliged to offer work, and the individual obliged to perform it.

Neither existed here. The handbook was not a contract, and the reimbursement of expenses did not create legal obligations. lawcases.net

Judgment

The Supreme Court held that Mr Groom was not a worker. The Court of Appeal’s rejection of his claim was upheld. The reasoning aligned with the broader jurisprudence: voluntarism, without contractual underpinning, does not morph into employment merely because the volunteer behaves responsibly or attends when asked.

The Court reaffirmed that:

• A volunteer’s attendance, even if regular or reliable, does not create mutuality of obligation.

• Reimbursement of expenses is not remuneration.

• A handbook expressing expectations does not constitute a binding contract.

This approach mirrors the logic in Uber BV v Aslam, where the Supreme Court stressed that worker status is grounded in the reality of contractual obligations, not the appearance of structured activity.

Comment

There is a quiet melancholy to cases like this. They expose the gap between the moral value of care and the legal value of labour. Mr Groom stepped forward to help someone in distress—a gesture of civic solidarity. Yet the law, with its insistence on contractual formality, treats that gesture as outside the sphere of employment protection.

This is not a failure of compassion but a structural choice: employment rights attach to obligations, not goodwill. The courts are wary of expanding worker status in ways that might chill voluntary organisations or blur the line between paid and unpaid service.

Still, the case invites a broader reflection. In sectors where volunteers perform roles indistinguishable from paid staff, the boundary between altruism and labour becomes ethically fraught. The law resolves the question by looking for mutuality of obligation. Society may wish for something more generous.

By Pat Harrington

Procedural Fairness in Employee Dismissals: Kisheva Case

The Unfair Dismissal of a Door Supervisor and the Collapse of Procedural Fairness

Overview

The dismissal of Ms Yovka Kisheva, a door supervisor employed by Secure Frontline Services Ltd (SFS), is now formally recorded in the law reports as Kisheva v Secure Frontline Services Ltd [2025] EAT 194. It is a case that exposes how a routine shift‑management misunderstanding can metastasise into a finding of gross misconduct when an employer abandons the basic architecture of fairness.

Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) condemned the employer’s approach as procedurally barren, factually untested, and legally indefensible. The EAT’s judgment is particularly stark: the employer operated with an “absence of any proper procedure”, a phrase that should ring in the ears of every HR manager and security‑sector operator.

Factual Background

On the day in question, Kisheva left her shift early, having informed the on‑site manager. SFS Security later alleged that she had failed to notify head office, treating this as a gross misconduct breach.

Rather than establishing what actually happened, the employer constructed a disciplinary case around assumption and suspicion. The investigation included an extraordinary and irrelevant step: polling her son’s email account to check for communications. This was not only disproportionate but also detached from the alleged misconduct.

Kisheva appealed internally. The appeal was dismissed. She brought a claim for unfair dismissal.

Tribunal Findings

Employment Tribunal

The ET found the dismissal unfair on three principal grounds:

• No reasonable investigation — The employer never clarified whether the on‑site manager had authority to approve her departure, nor what the reporting procedure required in practice.

• Procedural irregularities — The process was muddled, inconsistent, and unsupported by evidence. The email‑polling episode was singled out as particularly inappropriate.

• Disproportionate sanction — Even if there had been a communication lapse, gross misconduct was an excessive and unreasonable response.

Employment Appeal Tribunal — Kisheva v Secure Frontline Services Ltd [2025] EAT 194

The EAT upheld the ET’s decision. Judge Barklem emphasised:

• the absence of any proper procedure,

• the employer’s failure to establish a reasonable belief based on a reasonable investigation,

• and the lack of any rational basis for treating the incident as gross misconduct.

The EAT’s judgment now stands as a clear authority on the limits of managerial discretion in the security sector.

Why This Case Matters

This case is a reminder that gross misconduct is not a managerial shortcut. It requires:

• a clear rule,

• a clear breach,

• a proportionate response,

• and a procedurally sound investigation.

SFS Security failed on all four.

The case also exposes a broader cultural problem: when employers treat administrative expectations as if they were disciplinary tripwires, workers become vulnerable to arbitrary sanction. The law insists that employers ask questions before drawing conclusions, and that they test their assumptions rather than act on them.

For unions, advocates, and workers, the lesson is simple: procedure is protection.

Commentary

What makes Kisheva so instructive is its ordinariness. A worker left early with permission. The employer assumed wrongdoing, built a case around that assumption, and imposed the harshest sanction available. The Tribunal’s response was proportionate: you cannot dismiss first and investigate later.

The EAT’s criticism of the employer’s “absence of any proper procedure” is a warning to the industry. Security work often involves fragmented communication, lone working, and multiple reporting lines. Employers must adapt their procedures to that reality rather than punish workers for navigating it.

This case should be used in training for managers, union reps, and HR practitioners as a model of how not to conduct a disciplinary process.

By Patrick Harrington

Ending an Employment Contract: A Worker‑Centred Guide for 2026

Termination of employment is never just a technical moment in a contract. It is a point of vulnerability, a site of power imbalance, and often the moment when an employer’s culture reveals itself most starkly. Whether a worker resigns, is dismissed, or faces a more ambiguous “mutual agreement,” the law provides a framework — but it is workers, unions, and collective organisation that give that framework meaning.

This guide sets out the essentials of UK law on ending employment in 2026, with a focus on what workers need to know, what employers often get wrong, and how Solidarity can support members through the process.

1. The Three Main Routes Out of Employment

Resignation

A resignation must be clear and unambiguous. UK tribunals continue to reject attempts by employers to treat heat‑of‑the‑moment comments (“I’ve had enough,” “I’m done”) as binding resignations unless the worker confirms them later.

Key points:

• Workers must give contractual notice unless the employer has fundamentally breached the contract (constructive dismissal).

• Employers cannot “accept” a resignation that was never clearly given.

• A resignation given under duress — threats, pressure, or manipulation — may be invalid.

Dismissal

A dismissal occurs when the employer ends the contract. The law recognises five potentially fair reasons:

• Conduct

• Capability

• Redundancy

• Statutory illegality

• Some other substantial reason (SOSR)

But the reason is only half the story. A dismissal must also be procedurally fair. In 2026, tribunals continue to emphasise:

• A proper investigation

• A fair hearing

• The right to be accompanied

• Proportionate sanctions

• Consistency with how other workers are treated

Mutual termination / settlement agreements

Increasingly common, often used to avoid formal procedures. Workers should be cautious:

• A settlement agreement is only valid if the worker receives independent legal advice.

• Employers often frame these as “friendly exits,” but they are legal instruments designed to protect the employer.

• Solidarity strongly encourages members to seek union advice before signing anything.

2. Why the Date of Termination Matters

The termination date affects:

• Notice pay

• Accrual of holiday

• Continuous service (vital for unfair dismissal rights)

• Pension contributions

• Eligibility for redundancy pay

Tribunals have repeatedly held that the termination date is:

• The date the dismissal takes effect, not the date the letter is written.

• For resignations, the date the employer receives the resignation, not when the worker sends it.

• For summary dismissals, the date the employer communicates the decision.

In 2025–26 case law, tribunals have continued to scrutinise employers who attempt to manipulate dates to avoid liability — especially around the two‑year qualifying period for unfair dismissal.

3. Notice Periods: What Workers Are Owed

Statutory minimum notice

• One week if employed between one month and two years.

• One additional week per year of service up to a maximum of 12.

Contractual notice

If the contract gives more generous notice, that applies.

Pay in lieu of notice (PILON)

Employers can pay workers instead of requiring them to work notice, but:

• The contract must allow it, or

• The employer risks breaching the contract (which may increase compensation).

Garden leave

Employers may require workers to stay away from work during notice, but they must:

• Continue full pay and benefits

• Not use garden leave to punish or isolate workers

4. Constructive Dismissal: When Resignation Is Forced

Constructive dismissal remains one of the most misunderstood areas of employment law.

A worker may resign and claim constructive dismissal if the employer commits a fundamental breach of contract, such as:

• Bullying or harassment

• Unilateral changes to hours, pay, or duties

• Unsafe working conditions

• Ignoring grievances

• Disciplinary action taken in bad faith

The worker must resign promptly in response to the breach. Delay can be interpreted as acceptance.

Solidarity’s experience is that employers often rely on workers not knowing this right exists.

5. Wrongful vs Unfair Dismissal

These terms are often confused.

Wrongful dismissal

A contractual claim — usually about notice pay.

Key question: Did the employer breach the contract?

Unfair dismissal

A statutory claim — about reasonableness and fairness.

Key questions:

• Was there a fair reason?

• Was the process fair?

• Was dismissal a reasonable response?

Workers with certain continuous service usually qualify, but there are exceptions where no qualifying period is needed (e.g., whistleblowing, discrimination, asserting statutory rights).

6. Discrimination and Protected Characteristics

Here is a fully integrated, more nuanced, more protective, and more legally precise version of your section. It reads as a single, coherent piece and includes the additional layers you asked for—perception, association, and mixed‑motive discrimination—without losing clarity or authority.

6. Discrimination and Protected Characteristics

A dismissal is automatically unfair if the reason for it is connected—directly, indirectly, or even partly—to any of the protected characteristics set out in the Equality Act 2010. In these cases, the employee does not need two years’ service, and the employer’s reasoning, process, and underlying assumptions will be examined closely, including unconscious bias, inconsistent treatment, and reliance on stereotypes.

This protection applies not only where the characteristic is genuinely held, but also where it is perceived to be held or where the employee is treated unfavourably because of their association with someone who has a protected characteristic. A dismissal remains unlawful even where the protected characteristic is only one of several motives behind the decision.

The protected characteristics are:

Race — including colour, nationality, and ethnic or national origins. This covers explicit discrimination and more subtle forms, such as assumptions about cultural “fit”, language ability, or differential disciplinary standards.
Sex — applying equally to men and women. This includes dismissals influenced by gendered expectations, unequal behavioural standards, or assumptions about suitability for certain roles.
Disability — covering physical and mental impairments with a substantial and long‑term impact. A dismissal linked to disability‑related absence, behaviour arising from a disability, or a failure to consider reasonable adjustments may be automatically unfair.
Age — protecting workers of all ages. Decisions influenced by assumptions about capability, energy, experience, or “generational traits” fall within this category.
Religion or belief — including non‑religious philosophical beliefs that meet legal criteria. Dismissals connected to religious observance, expression, or perceived incompatibility with workplace culture may be discriminatory.
Sexual orientation — covering heterosexual, gay, lesbian, and bisexual employees. This includes dismissals influenced by prejudice, discomfort, or assumptions about lifestyle or behaviour.
Gender reassignment — protecting anyone proposing to undergo, undergoing, or who has undergone a process of transitioning. This includes dismissals linked to appearance, name changes, or colleagues’ reactions.
Pregnancy or maternity — one of the strongest protections in UK law. Any dismissal connected to pregnancy, pregnancy‑related illness, or maternity leave is automatically unfair, regardless of length of service or employer intent.
Marriage or civil partnership — protecting employees from dismissal because they are married or in a civil partnership, including situations where partnered employees are treated differently from single colleagues.

Employers often attempt to disguise discriminatory motives behind “performance” or “conduct” narratives. Tribunals are increasingly alert to this, especially where:

• There is a pattern of differential treatment

• Procedures are rushed or inconsistent

• Adjustments for disability are ignored

7. Redundancy: Rights and Realities

Redundancy must be genuine. Employers must:

• Consult meaningfully

• Use fair selection criteria

• Consider alternatives to redundancy

• Offer suitable alternative employment where available

Workers with two years’ service are entitled to statutory redundancy pay, but many employers offer enhanced packages.

Solidarity regularly challenges:

• “Sham” redundancies used to remove individuals

• Selection criteria that are opaque or subjective

• Failure to consult collectively where required

8. The Union’s Role: Power, Clarity, Protection

Employment law provides the floor, not the ceiling. Solidarity’s approach is grounded in:

• Early intervention — the earlier a member contacts us, the more options we have.

• Documentation — keeping records, emails, and timelines.

• Representation — ensuring no worker faces a meeting alone.

• Collective pressure — employers behave differently when they know workers are organised.

Termination is not just a legal event; it is a moment where solidarity matters most.

9. Practical Steps for Workers Facing Termination

1. Contact Solidarity immediately — even if you think it’s “not serious yet.”

2. Keep everything in writing — verbal conversations should be followed up with an email summary.

3. Request your personnel file if you suspect unfairness.

4. Do not sign anything (especially settlement agreements) without advice.

5. Record dates — they matter more than most people realise.

6. Stay calm, stay factual, stay supported — you are not alone.

10. Final Thoughts: The Human Reality Behind the Legal Framework

Employment law is often presented as neutral, technical, and balanced. But workers know the truth: the end of a contract is rarely a meeting of equals. It is shaped by power, culture, and the employer’s willingness to treat people with dignity.

This guide is not just about rights — it is about agency, collective strength, and the insistence that workers deserve fairness not only in law but in practice.

Solidarity stands with every worker navigating this moment.

By Pat Harrington

Advocating Change: Insights from Solidarity’s 2026 Annual Meeting

Solidarity’s 2026 AGM combined procedural clarity with emotional intelligence and a renewed commitment to trauma‑informed, member‑centred trade unionism. Chaired by David Kerr and guided by General Secretary Patrick Harrington, the union set out a bold, practical agenda for the year ahead.

Setting the Scene

The 2026 Annual General Meeting of Solidarity Union opened in Edinburgh with a sense of grounded purpose. The room—wood‑panelled was arranged with care: the camera positioned for accurate minute‑taking, the banner placed thoughtfully and seating adjusted so that David Kerr, chairing the meeting, could manage the flow of contributions with ease. Members joined both in person and online, a reminder of Solidarity’s commitment to hybrid democracy and accessibility.

The atmosphere was steady and comradely. People arrived with papers tucked under their arms, nodding greetings, settling into chairs. Online participants appeared in the corner of the screen, equally present, equally valued. It was a meeting shaped by the union’s ethos: practical, humane, and attentive to the realities of working people.

Opening and Financial Overview

Chair David Kerr opened the meeting, confirmed quorum, and handed the substantive business to General Secretary Patrick Harrington, whose report was characteristically transparent and precise.

Patrick emphasised that while the union is financially stable, its sustainability depends on membership dues and unpredictable case‑related donations. The financial report was accepted without challenge.

Representation, Growth, and the Year’s Work

Solidarity continues to grow steadily, gaining one to two new members each week, many of them careworkers, nurses and midwives navigating increasingly complex workplace pressures. The union’s model—empowering reps to manage their own cases with support from the centre—remains one of its strengths.

Patrick and Glen Nicklasson (our President) both noted the introduction of new workplace visitation rights, expanding the union’s ability to support members directly. He also welcomed the Labour government’s decision to abolish union fees to the Certification Office, easing administrative burdens and recognising the value of union transparency.

Motions and Debates

The AGM’s motions reflected the union’s core commitments: fairness, trauma‑informed practice, and principled advocacy.

Template Resources for Grievances and Disciplinaries

Patrick proposed creating a suite of standardised tools—template letters, checklists, step‑by‑step guides—to support members facing grievances, disciplinaries, or GDPR requests. These will be published on the union website and reviewed quarterly. The motion passed unanimously.

Challenging the Five‑Day Appeal Deadline

The union resolved to challenge the widespread but legally baseless five‑day appeal window in disciplinary procedures. Patrick and David Andrews argued for a minimum of 14 days, especially for members with trauma, disabilities, or limited access to representation. The motion passed with strong support.

Embedding Trauma‑Informed and Equality‑Conscious Principles

A major motion committed Solidarity to embedding trauma‑informed practice in all grievance and disciplinary work. This includes:

Predictability and transparency
Emotional safety
Reasonable adjustments as standard
Flexible deadlines
Supportive meeting formats

The union will develop model standards and training for reps.

Congratulating the Certification Office on 50 Years

The AGM formally congratulated the Certification Office on its 50th anniversary, recognising its role in maintaining transparency and independence in the trade union movement.

Welcoming Employment Rights Reforms — With Caveats

The union welcomed the Labour government’s new employment protections—day‑one rights, restrictions on exploitative practices, and stronger union safeguards. But Patrick and other speakers stressed the need for:

Better enforcement
Expanded collective bargaining
Stronger protections for precarious workers

Solidarity reaffirmed its political independence.

Solidarity with the Birmingham Refuse Workers

The AGM expressed full solidarity with Birmingham’s refuse workers, who are resisting unsafe and unfair changes to their working conditions. Solidarity has supported the dispute through publicity and donations, while navigating legal constraints around picketing.

Marking the Centenary of the 1926 General Strike

David Kerr proposed a motion honouring the 1926 General Strike whcih passed unanimously. Patrick framed it not as a failure but as a warning: when capital squeezes too hard, workers know how to strike back.

Constitutional Reform

Members approved a revised constitution designed to improve clarity, accessibility, and legal robustness. A key amendment clarified that:

Legal support is provided at the General Secretary’s discretion with a right of appeal to our Executive Council
Reps must be protected from coercion or undue pressure to pursue cases they judge unwise (passed by amendment from Graham)

This reform ensures that union resources are used strategically and ethically.

Casework and Campaigns

Patrick reported a rise in disability discrimination cases, particularly around absence management and performance procedures. Other cases involved redundancy disputes, breaches of the ACAS code, and Equality Act violations.

Campaigns this year include:

Buy UK Goods
Enforcement of the Equality Act, especially in the insurance sector
Ongoing work on well‑being and workplace culture

Patrick outlined the union’s tribunal strategy: support initial claims, but discourage weak cases that drain resources and offer little chance of success. Only strong cases will be taken to a Tribunal.

Closing Reflections from the General Secretary

Patrick closed the AGM with a speech that captured the emotional heart of union work. His remarks are reproduced in full:

Accomplishment, Happiness, and the Power of Union Work

Closing remarks delivered by General Secretary Patrick Harrington

Brothers and Sisters,

Let’s talk about something we don’t celebrate enough: the joy of getting things done. The deep, human satisfaction that comes from rolling up our sleeves, facing a challenge, and saying, “We made that happen.”

Accomplishment isn’t a luxury. It’s a need. It’s what keeps us moving, keeps us hopeful, keeps us connected to one another. When we achieve something — especially something hard — we feel it in our bones. That spark of pride. That lift in the chest. That sense that the world is a little fairer because we acted.

And that, comrades, is exactly what union work gives us.

Every time we win a case, every time we protect a member, every time we force an employer to think twice — that’s accomplishment. Real accomplishment. Not the empty targets and KPIs management throws at people. Not the hollow “wellbeing initiatives” that never touch the real issues. I’m talking about meaningful victories that change lives.

When a member walks into a meeting terrified and walks out supported — that’s accomplishment. When a workplace becomes safer because we refused to look away — that’s accomplishment. When someone keeps their job, keeps their dignity, keeps their rights — that’s accomplishment.

And we don’t do it alone. We do it together.

That’s why it feels so good. Because union accomplishment isn’t individual glory. It’s collective strength. It’s the knowledge that when we stand shoulder to shoulder, we can move mountains. We can take on employers bigger than us, systems stacked against us, and still come out stronger.

Our work gives us satisfaction because it matters. It has weight. It has consequence. It leaves the world better than we found it.

So let’s carry that energy into the year ahead.

Let’s take pride in what we’ve achieved — and hunger for what’s still to come. Let’s remember that every victory, big or small, feeds that deep human need to build, to protect, to improve.

And let’s never forget: When we accomplish things together, we don’t just win — we grow stronger, happier, and more united.

Thank you, comrades.

Report from Maria Camara

When “Following the Process” Isn’t Enough: Lessons from Taylor v Sainsbury’s Supermarkets Ltd

There are tribunal cases that feel like technical disputes about procedure.
And then there are cases like Taylor v Sainsbury’s Supermarkets Ltd — cases that expose the gap between what an organisation thinks it is doing and what an employee is actually experiencing.

A disabled employee.
A supermarket chain.
An absence policy.

And a reminder that the law cares far less about tidy paperwork than it does about lived reality.

The Employee Behind the Case

Mr Taylor worked for Sainsbury’s and lived with ankylosing spondylitis, a long‑term inflammatory condition that can cause severe pain, stiffness and fatigue. It is a condition that fluctuates, and like many disabilities, it doesn’t map neatly onto rigid attendance expectations.

He raised concerns about:

how his absence management was handled
how working hours were allocated
how reasonable adjustments were considered, implemented, and reviewed

On paper, everything looked reassuringly compliant.

✔ Occupational health referrals
✔ Adjustments discussed
✔ Policies in place

But tribunals don’t judge organisations on the neatness of their documentation.
They judge them on what actually happened.

And that’s where this case becomes instructive.

Where Things Began to Fray

1. Absence Triggers Applied Without Flexibility

Sainsbury’s had a standard absence policy with trigger points.
Nothing unusual there.

But Mr Taylor’s condition meant he was more likely to hit those triggers — not because of misconduct, but because of disability‑related flare‑ups.

The tribunal examined not the existence of the policy, but the rigidity with which it was applied.
A trigger point that is neutral on its face can become discriminatory in practice if managers fail to adjust it for someone whose disability makes absence more likely.

This is where many employers stumble:
they treat “consistency” as fairness, when the law requires individualisation.

2. Adjustments Discussed… But Not Embedded

The organisation did discuss adjustments.
But discussion is not the same as implementation.
And implementation is not the same as ongoing review.

The tribunal looked closely at:

whether adjustments were actually put in place
whether they were maintained
whether managers understood them
whether they were revisited when circumstances changed

A reasonable adjustment is not a one‑off event.
It is a living commitment.

3. Working Hours Expectations That Didn’t Reflect Reality

Mr Taylor’s condition affected his stamina and mobility.
Yet expectations around shift patterns and duties did not always reflect the limitations identified by occupational health.

This is a common organisational blind spot:
the gap between what HR agrees, what OH recommends, and what frontline managers actually do on the shop floor.

The tribunal paid attention to that gap.

The Legal Test Employers Forget

One of the most common refrains in tribunal litigation is:

“We followed the process.”

But that is not the legal test.

The tribunal asks two questions:

Did the employee face a disadvantage because of their disability?
Did the employer take reasonable steps to remove or reduce that disadvantage?

Policies are written for the average employee.
Disability law requires employers to think beyond the average.

And that is where Sainsbury’s fell short.

Why This Case Matters

This case is not about bad faith.
It’s about rigidity — the quiet, procedural kind that creeps in when managers are under pressure, when policies are treated as scripts, and when “consistency” becomes a shield against Here’s a version that keeps the spine of the original but reframes it through that Patrick‑style, morally attentive lens — weighing the lessons for both sides of the employment relationship, and foregrounding judgement as a shared, legally consequential practice.

The biggest HR risks rarely come from having the wrong policy.
They come from applying the right policy as if people were identical units on a spreadsheet.

Absence triggers.
Bonus schemes.
Working‑hours expectations.
Return‑to‑work interviews.
Performance metrics.

On paper, these are neutral tools.
In practice, they can quietly — and sometimes catastrophically — disadvantage disabled employees when managers apply them without curiosity, flexibility or context.

From the employee’s side, the lesson is stark:
you can be doing everything “right” and still find yourself penalised by systems designed for an imaginary average worker.
Knowing your rights, flagging barriers early, and documenting the adjustments you need isn’t self‑advocacy as a favour to HR — it’s self‑protection in a landscape where the burden of explanation too often falls on the person already carrying the weight.

From the employer’s side, the message is even clearer:
the organisations that avoid tribunals aren’t the ones with the thickest policy binders.
They’re the ones with leaders who understand when the rules require:

judgement
nuance
humanity
and the courage to deviate from the script

Because good HR has never been about paperwork.
It’s about the quality of decision‑making in the moments where the policy doesn’t quite fit the person in front of you.

And cases like Taylor v Sainsbury’s underline something many leaders still treat as optional:
judgement is not a soft skill.
It is a legal requirement — one that protects employees from harm and employers from the consequences of their own rigidity.

In other words: the law expects humanity.
And so should we.

By Pat Harrington

Whistleblowing at Work: What This Month’s Cases Tell Us About Power, Protection and the Limits of the Law

From post‑employment retaliation to managers hiding behind “innocent” decision‑makers, this month’s whistleblowing judgments reveal a legal landscape still struggling to keep pace with the realities workers face. These cases show how employers manoeuvre, how tribunals interpret the law, and why collective strength remains the surest protection for anyone who speaks up.

Introduction

Whistleblowing law in Britain has always been a patchwork: some protections strong in theory, others riddled with loopholes, and all of it dependent on tribunals willing to look beneath the surface of an employer’s story. The latest run of cases shows just how contested this terrain remains. Workers continue to face retaliation long after their employment ends; managers can escape liability by hiding behind “innocent” decision‑makers; and the courts themselves are split on how far whistleblowing detriment law should stretch.

Below is a worker‑centred breakdown of the key cases — what happened, what the courts decided, and what it means for anyone who raises concerns in the workplace.

Case Summaries

1. Post‑employment retaliation still counts: Day v Lewisham & Greenwich NHS Trust

This case confirms something workers have long known: retaliation doesn’t stop just because your employment does. Dr Day argued that statements the Trust made after settling an earlier whistleblowing case amounted to detriment. The tribunal initially said post‑employment acts weren’t covered — but the Employment Appeal Tribunal disagreed.

The EAT held that post‑employment detriments can fall within s.47B ERA when they’re closely tied to the employment relationship. As the document puts it, the statements were made “in the context of earlier tribunal proceedings about disclosures made during Dr Day’s employment” .

However, the Trust ultimately escaped liability because the tribunal found the statements weren’t materially influenced by his disclosures, but by “media scrutiny” and a desire to defend itself.

Worker takeaway:
Protection doesn’t end when the job does — but employers will still argue their motives were “something else.”

2. Persisting after an investigation can undermine protection: Argence‑Lafon v Ark Syndicate Management

Here, the worker raised concerns about a potentially fraudulent claim. After a full investigation found no fraud, he continued to accuse the company of wrongdoing. The tribunal held that his later statements were no longer protected because it was no longer “reasonable” for him to hold that belief.

He was dismissed for refusing a PIP and for continuing to allege fraud. The EAT agreed the dismissal wasn’t automatically unfair for whistleblowing — it was his behaviour, not the disclosures, that drove the decision.

But the tribunal had failed to consider whether the dismissal was unfair on ordinary grounds, especially the role of the appeal process. That part was sent back.

Worker takeaway:
Employers often weaponise “reasonableness” to shut down continued concerns. And once a PIP enters the picture, the narrative shifts fast.

3. The limits of Jhuti: decision‑makers vs manipulators in Henderson v GCRM

This case tackles a recurring problem: what happens when the person who fires you doesn’t know about your protected disclosures, but the manager feeding them information does?

The tribunal originally found the decision‑maker (R3) liable for detriment by dismissal, imputing the whistleblowing‑related motive of R2 (the line manager). The EAT said this was wrong. The Jhuti principle — looking behind the decision‑maker’s stated reason — applies to automatic unfair dismissal, not to detriment claims.

Applying Jhuti here would create “potentially unlimited liability on an innocent party” .

The s103A dismissal claim was sent back for reconsideration, but the detriment findings were overturned.

Worker takeaway:
Managers who manipulate processes may escape detriment liability unless the dismissal claim itself succeeds. The law still struggles to capture behind‑the‑scenes retaliation.

4. Dismissal can be a detriment: Rice v Wicked Vision & Barton Turns v Treadwell

These joined appeals deal with a long‑running legal contradiction: can a worker bring a detriment claim based on the dismissal itself?

The Court of Appeal said yes — not because it agreed with the earlier Osipov decision, but because it was bound by it. As the summary puts it, “It is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court” .

Both workers were allowed to proceed with detriment claims based on dismissal by co‑workers, with employers potentially liable via vicarious liability.

Worker takeaway:
The law is messy, contradictory and ripe for reform — but for now, workers can pursue detriment claims even where the detriment is dismissal.

5. Secondment isn’t employment: Bank of Africa v Hassani

This case is a reminder that employers will use technicalities to avoid responsibility. The worker was employed by BCME but seconded to the Bank of Africa. The tribunal wrongly found her employment had transferred, making the Bank liable for dismissal and detriment.

The EAT overturned this. The secondment agreement was clear: she remained employed by BCME. That meant:

The Bank couldn’t be liable for unfair dismissal.
Detriment claims needed proper analysis under s.43K ERA (extended definition of worker), which the tribunal hadn’t done.
The tribunal also wrongly treated all respondents as jointly responsible — a “composite approach” the law doesn’t allow.

Worker takeaway:
Seconded workers fall into a legal grey zone. Employers exploit that ambiguity, and tribunals often get it wrong.

Conclusion

Across these cases, a pattern emerges: whistleblowing law remains a battleground where employers test the limits, tribunals disagree, and workers are left navigating a system that often feels designed to trip them up. Whether it’s post‑employment retaliation, managerial manipulation, or technical arguments about employment status, the message is clear — legal protection is only ever part of the story.

Solidarity, collective action and union support remain the real safeguards for workers who speak up. The law may shift, but our responsibility to defend each other does not.

By Pat Harrington

EAT Ruling: Legal Responsibilities After Employee Transfers

This is about power and fairness at work. When staff transfer under TUPE, employers can’t shrug off pay gaps that fall along racial lines. The recent EAT decision in Mr Alpha Anne & Others v Great Ormond Street Hospital makes that plain: once the employer becomes you, you own the problem — and you must justify any unequal treatment quickly or face liability.

What happened in plain terms

Who: Cleaners at Great Ormond Street Hospital who transferred from a contractor (OCS) to the Trust under TUPE.
What: They were paid the London Living Wage under OCS, while comparable directly employed NHS staff were on higher Agenda for Change (AfC) rates. Most transferred staff were from BAME backgrounds; most directly employed comparators were white.
Claim: The transferred workers said the Trust’s failure to put them on AfC pay amounted to indirect race discrimination.
Outcome: The EAT split the claim. Pre‑transfer complaints failed; post‑transfer complaints succeeded.

Why the pre‑transfer claims failed

Before the transfer the workers were employed by OCS. The EAT followed established law that a client cannot normally be sued for pay set by an independent contractor, even if the client has influence. The Trust had not actively prevented OCS from paying more, so it was not responsible for pay decisions made while OCS was the employer. Bottom line: responsibility follows the employment contract — not the service relationship.

Why the post‑transfer claims succeeded

The moment the Trust became the employer, the legal picture changed. From the transfer date the Trust was responsible for the transferred workers’ terms and conditions. The EAT found the continued pay gap after transfer did amount to indirect discrimination because:

The pay disparity disproportionately affected workers from a protected racial group; and
The Trust failed to show that delaying equalisation was a proportionate means of achieving a legitimate aim.

The court said the Trust should have moved to equal pay on or shortly after the transfer. A delay needed a strong, justifiable reason — which the Trust did not provide.

TUPE, harmonisation and variation clauses

TUPE normally prevents employers from imposing changes to terms and conditions simply to harmonise pay. But there’s an important exception: valid contractual variation clauses. If a transferring contract contains a lawful clause allowing reasonable changes, those changes can be implemented after transfer without breaching TUPE. In this case, the Claimants’ contracts included such a clause, so harmonisation to AfC rates was legally possible.

Practical rule: check the transferring contracts. If they permit reasonable variations, harmonisation may be lawful — but it still must not produce or perpetuate unlawful discrimination.

Practical implications for employers and unions

This decision forces employers to act proactively when staff transfer in under TUPE. The practical steps are straightforward but urgent:

Audit pay and terms: Compare the terms of incoming staff with existing employees in the same roles.
Check demographics: Identify whether any pay or terms disparity disproportionately affects a protected group.
Assess justification: If disparities exist, decide whether delaying or refusing harmonisation can be justified as a proportionate means of achieving a legitimate aim. Be ready to prove it.
Review contracts: Look for valid variation clauses in transferring contracts that might lawfully permit harmonisation.
Document decisions: Keep clear records of the analysis and the reasons for any delay or differential treatment.
Get advice early: Where disparities are identified during due diligence, seek legal and equality advice before the transfer completes.

Employers often lack reliable demographic data. That’s a practical barrier — but it’s not an excuse. If you can’t show the disparity isn’t discriminatory, the law will treat unexplained disparities as suspect.

What this means for organising and collective action

This ruling hands a clear tool to workers and unions: transfers are a moment to press for equality. When a contractor’s workforce moves in-house, that’s the time to demand parity — not months later. Unions should:

Push for full transparency in pre‑transfer due diligence.
Use the transfer window to press for immediate harmonisation where pay gaps track protected characteristics.
Hold employers to account for any delay and demand written, proportionate justifications.
Support members to gather evidence of disparate impact and to raise claims where employers fail to act.

Conclusion and clear next steps

If you’re an employer: don’t wait. Audit, document, justify, and where necessary equalise — quickly. The cost of delay is legal exposure and damaged trust.

If you’re a worker or union organiser: treat TUPE transfers as a frontline for equality. Demand parity at the point of transfer. If employers stall, organise — assemblies, petitions, and legal challenge are all tools to force action.

This case is a reminder: when workers move, responsibility moves with them. Employers who ignore that responsibility will be held to account. Workers who organise around it can win real, immediate change.

By Patrick Harrington

President’s 2026 New Year’s Address

Glen Nicklason, President of Solidarity union

As 2026 dawns, I would like to wish all Members, Supporters, and Workers a Happy and Prosperous New Year. Your commitment, resilience, and solidarity throughout the past twelve months have been nothing short of inspiring, and it is with that same spirit that we look ahead to the challenges and opportunities of the year to come.

Labour’s first full year in government has been deeply turbulent. Under their leader, Keir Starmer, the Party has experienced a dramatic and historically significant collapse in public support. Polling at around 30% in January 2025, Labour’s rating had fallen to 18–19% by December — one of the steepest declines for a newly elected government in modern UK political history. This shift reflects a growing sense of disillusionment among working people who expected meaningful change but instead encountered policies that failed to address the realities of everyday life.

Among the most unpopular decisions were the continued facilitation of illegal immigration, the rollout of an unpopular Digital ID system, and persistent concerns over the direction of the economy. These issues have contributed to a widespread feeling that the government is out of touch with the pressures facing ordinary households.

With the cost of living continuing to rise, it has been difficult to find positive news. One exception has been the increase in the National Minimum Wage. In April 2025, it rose to £12.21, and it is scheduled to rise again in April 2026 to £12.71. While welcome, these increases still fall short of what is needed to keep pace with inflation, housing costs, and the rising price of essentials. Workers deserve not just survival, but dignity — and that requires more than incremental adjustments.

As we look forward to the coming year, we can only hope that the Government will finally implement policies that genuinely reduce the cost of living and support working families. If they fail to do so, then it will fall to us — The Workers — to hold them accountable at the ballot box. Our strength lies in our unity, our voice, and our willingness to stand up for fairness, justice, and economic security.

Please enjoy the rest of this festive period. We at Solidarity look forward to working for you, standing with you, and fighting alongside you in the New Year. Together, we will continue to push for the change our communities need and deserve.

Glen Nicklason

Recent Employment Appeal Tribunal Cases: Summaries & Lessons for Trade Unionists

629 words, 3 minutes read time.

Understanding recent appellate judgments helps unions guide members through pitfalls in whistleblowing, dismissal and harassment claims. Below are three case snapshots, each followed by practical take-aways for shop stewards, legal officers and member advocates.

Savva v Leather Inside Out (in liquidation) & Others [2025] EAT 96

Antony Savva worked for a charity now in liquidation and brought three successive claims alleging detrimental treatment and unfair dismissal for making protected disclosures. The Employment Tribunal struck out many complaints as out of time, imposed a deposit order on others, and ultimately found no qualifying disclosures. On appeal, the EAT:

Upheld the tribunal’s time-limit and strike-out decisions in large part, confirming the strict application of the 3-month deadline and the proper use of “series of similar acts” to bundle late allegations.
Quashed the deposit order for one group of complaints.
Found errors in the tribunal’s merits judgment by omitting one claim and misunderstanding whether certain disclosures and subsequent detriments had been established. Those merits issues were remitted to a fresh tribunal.

Lessons for trade unionists

Whistleblowing claims must be lodged promptly; the “series of similar acts” exception can only rescue genuinely linked events, not disconnected incidents.
Deposit orders can be challenged – they’re not an automatic barrier to redress.
Scrutinise tribunal decisions for omitted complaints or misapplied definitions of protected disclosure; timely appeals preserve members’ rights to a full merits hearing.

Marshall v McPherson Limited [2025] EAT 100

James Marshall, an HGV driver delivering spent grain to a bio-plant, resigned after a night-shift colleague was sent to “shadow” him without warning. He said changes to plant processes, constant pressure to refill hoppers and past safety incidents amounted to a fundamental breach of trust and confidence. The tribunal dismissed his constructive dismissal claim, applying the “last straw” test too narrowly. On appeal, Lady Haldane found that:

The tribunal misdirected itself by requiring the final incident itself to be repudiatory before it could revive earlier, accumulative breaches.
This legal misdirection went to the heart of the case and undermined confidence in the original decision.
The matter was therefore remitted for rehearing before a fresh tribunal.

Lessons for trade unionists

In constructive dismissal cases, emphasise the cumulative impact of managerial failings, not only the final act.
Ensure tribunal self-directions accurately reflect authorities like Omilaju and Kaur on “last straw.”
Where legal misdirection is apparent, push for appellate review and, if necessary, a fresh hearing to safeguard members’ claims.

Logo v Payone GmbH & Others [2025] EAT 95

Mr Logo, a Black British accounts manager, complained of three acts of race harassment: a colleague in blackface at a Christmas party (2016), a racist joke at a dinner (2019) and a “Pure Blonde” beer advert circulated on WhatsApp (2020). The tribunal accepted the first two as harassment by effect but refused time-extensions, and found no race-related link in the beer advert. Judge Tayler held that:

The tribunal had erred in refusing to extend time without properly weighing prejudice to the claimant and imposing an unrequired “convincing explanation” test.
The advert of a white-blonde utopia was obviously “related to” race, and the tribunal should have assessed its effect on the claimant’s dignity rather than focusing on the poster’s intent.
Those issues were remitted for redetermination.

Lessons for trade unionists

Advise members to lodge harassment claims promptly, but press tribunals to exercise their wide “just and equitable” discretion when delays occur.
Harassment “related to” a protected characteristic does not require bad intent – focus on the context and the complainant’s perception.
Preserve contemporaneous evidence (photos of blackface, screen-captures of messages, emails requesting extensions) to counter tribunal scepticism on credibility or prejudice.

By tracking how the EAT applies time limits, cumulative breach principles and harassment tests, union advocates can spot early warning signs, frame stronger claims and marshal the right authorities when representing members.

By Pat Harrington