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.

Duffy v House of Gods: Key Insights on Interim Relief for Workers

In late 2025, a hotel worker at Edinburgh’s boutique “House of Gods” found himself out of a job after a chaotic evening shift that ended with the police being called. That much is common ground. What came next is the sort of dispute that goes right to the heart of workplace safety, whistleblowing protection, and the power imbalance workers face when employers move fast and loose.

According to Mr Duffy, the worker at the centre of the case, he had raised a serious safety concern that night: fire escape doors left open, creating a risk to guests, staff, and the building’s security . He said this disclosure – a classic health and safety warning – was the real reason he was dismissed.

The employer told a very different story. They claimed no disclosure was ever made, and that the decision to dismiss had already been taken three days earlier, supposedly for performance reasons while he was still in probation .

When the case first reached the Employment Tribunal, Duffy applied for interim relief – a powerful but rarely granted remedy that can keep a worker on payroll until the full whistleblowing case is heard. The tribunal refused his application . So he appealed.

And that’s where things get interesting.

What the Employment Appeal Tribunal decided

Recorder Fraser Butlin KC allowed the appeal. His reasoning was simple but important: the tribunal had not carried out the required summary assessment of the evidence to decide whether Duffy had a “pretty good chance” of succeeding in his whistleblowing claim .

That phrase – pretty good chance – is the legal test for interim relief. It doesn’t require a full trial. It doesn’t require witnesses to be cross‑examined. It’s a quick, urgent look at the evidence to see whether the worker’s case is strong enough to justify temporary protection.

The tribunal hadn’t done that. It had simply refused the application without engaging properly with the evidence.

Butlin KC stopped short of substituting his own decision. Doing so, he said, would amount to an improper judicial fact‑finding exercise at appeal level. Instead, he sent the case back to the same tribunal to reconsider the interim relief application afresh .

Why this case matters for workers and trade unionists

1. Interim relief is one of the strongest protections workers have – but tribunals often shy away from it

Interim relief is a lifeline. If granted, it forces the employer to keep paying the worker until the final hearing. For someone suddenly dismissed, often without warning, that can be the difference between stability and crisis.

But tribunals rarely grant it. Some judges treat it as an exceptional remedy. Others apply the test too strictly. This case is a reminder that tribunals must actually do the job: look at the evidence, weigh it quickly but properly, and decide whether the worker has a “pretty good chance” of winning.

If they don’t, workers lose one of the few tools that can stop employers from sacking whistleblowers and then dragging out litigation for months or years.

2. Whistleblowing isn’t just about dramatic scandals – it’s often about everyday safety

Fire doors left open. Security risks. Guest and staff safety. These aren’t abstract concerns. They’re the sort of issues workers raise every day, often informally, often under pressure, and often without any protection when employers react badly.

This case shows how quickly a safety disclosure can become entangled with disciplinary action, probation reviews, and employer narratives about “performance”. It’s a familiar pattern to anyone in a union.

3. Employers frequently claim the dismissal decision was made earlier – tribunals must scrutinise that

The employer’s argument that the dismissal was already decided three days before the alleged disclosure is a classic defence. Sometimes it’s true. Sometimes it’s convenient. Interim relief hearings are precisely where tribunals should interrogate that claim.

The EAT’s message is clear: don’t just accept the employer’s timeline – test it.

4. Workers need unions because whistleblowing law is technical, fast‑moving, and stacked against individuals

Interim relief applications must be made within seven days of dismissal. Evidence must be marshalled quickly. The legal test is demanding. And employers often have HR teams and solicitors ready to respond.

Without union support, most workers never even attempt interim relief. Cases like Duffy’s show why unions must be ready to act fast when members raise safety concerns or face sudden dismissal.

The bigger picture

This appeal doesn’t decide whether Duffy was right or wrong. It doesn’t say whether he made a protected disclosure. It doesn’t say whether the employer acted lawfully. What it does say is that workers deserve a fair shot at interim relief when they claim they were sacked for raising safety concerns.

The EAT’s intervention is a quiet but important reminder that whistleblowing protections only work if tribunals apply them properly. For Solidarity members, it’s another example of why collective strength matters. When workers speak up about safety, they should not be punished – and when they are, the law should give them real tools to fight back.

This case reinforces that message. And it sends the tribunal back to do what it should have done the first time: look at the evidence, weigh it fairly, and decide whether a worker raising fire‑safety concerns deserves protection while the truth is sorted out.

By Patrick Harrington

Read the full Judgment in Duffy v BXTR 3 LTD t/a House of Gods: [2026] EAT 119.

This article is intended as a general explanation of the EAT decision in Duffy v. House of Gods. 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.

DHL v Ignatowicz: When Facebook, Workplace Grievances and the Law Collide

An EAT judgment that exposes the uneasy frontier between employee expression, employer control, and the limits of reinstatement

Some cases arrive at the Employment Appeal Tribunal like a slow‑burning fuse. DHL Services Ltd v Ignatowicz [2026] EAT 74 is one of them: a dispute that begins with a frustrated warehouse worker posting his grievance on Facebook and ends with a forensic examination of contributory fault, reinstatement, and the uncomfortable question of how far an employer must tolerate an employee’s public outbursts.

The Case in Context: A Modern Parable of Social Media and Employment Law

The story begins in a familiar place: a worker, disappointed by a failed internal job application, turns to Facebook to vent. But Pawel Ignatowicz’s posts were not the usual gripes. They were sprawling, quasi‑political, sometimes religious, sometimes conspiratorial, and occasionally threatening. One post declared that “capitalist dictatorship is evil and has to be destroyed”; another hoped that God would “destroy [his] enemies”; another warned scammers and “other enemies” that they had “diged the graves for [their] own children.”

The Employment Tribunal (ET) found these posts troubling but ultimately concluded that DHL’s dismissal was unfair. Why? Because the employer’s process was sloppy, the policies unclear, and the investigation superficial. The ET ordered reinstatement and applied only a 10% deduction for contributory conduct.

The EAT, however, took a very different view.

1. The Tribunal’s Errors: A Failure to Grapple With the Real Issues

The EAT’s judgment is, in essence, a polite but firm dismantling of the ET’s reasoning. The ET had treated the case as if it were a simple matter of an employee posting a grievance online. But the EAT emphasised that the posts were not merely reproductions of a grievance—they were embellished with inflammatory language, historical analogies involving massacres, and repeated references to “enemies” being destroyed.

The ET’s first major error was its superficial treatment of contributory conduct. It focused only on the fact that the grievance had been posted publicly, ignoring:

the additional inflammatory language (“capitalist dictatorship is evil and has to be destroyed”)
the 9 June post invoking God to destroy his enemies
the 15 July post warning that enemies had dug “the graves for [their] own children”
the August posts threatening to repost everything unless reinstated
the later litigation‑related comments comparing managers to Nazis and “satanic bitches”

The EAT held that the ET should have analysed each of these posts separately under the two statutory regimes:

s.122(2) ERA (basic award): conduct before dismissal, whether or not known to the employer
s.123(6) ERA (compensatory award): conduct that caused or contributed to the dismissal

The ET had done neither properly.

2. Reinstatement: The Tribunal’s Second Major Misstep

Reinstatement is the most intrusive remedy an employer can face. It requires the tribunal to consider:

Does the employee want reinstatement?
Is reinstatement practicable?
If the employee contributed to their dismissal, is reinstatement just?

The ET had treated reinstatement as if it were simply a matter of logistics—could DHL physically put him back in the warehouse? Yes? Then reinstatement is “practicable”.

But the EAT reminded the ET of a crucial principle: practicability is not about logistics; it is about trust and confidence.

The ET had failed to ask the key question:

Does the employer genuinely and rationally believe it can no longer trust the employee?

Given the posts comparing managers to historical mass murderers, invoking divine destruction of enemies, and later calling managers “satanic bitches”, the EAT found it astonishing that the ET had not engaged with the trust issue at all.

The ET had also wrongly treated contributory conduct as relevant only to practicability, rather than to the separate statutory question of whether reinstatement would be just.

3. The EAT’s Core Message: Social Media Misconduct Must Be Taken Seriously

The EAT’s judgment is not a moral condemnation of Ignatowicz. It is a legal correction. It emphasises that:

Social media posts are not insulated from employment consequences.
Tribunals must analyse each post individually.
Threatening, abusive or destabilising language—even if not naming the employer—can legitimately undermine trust.
Reinstatement is exceptional, not a default remedy.

The EAT also flagged an issue the ET had ignored entirely: the qualified right to freedom of expression under Article 10 ECHR. This will now have to be considered on remission.

4. The Human Dimension: A Worker in Distress, an Employer Out of Its Depth

One of the striking features of the case is the claimant’s evident distress and disorientation. His posts reference “paranormal occurrences”, conspiracies, and divine intervention. He appears to have been struggling with cybercrime victimisation and mental health issues. The ET was sympathetic to this context.

But sympathy cannot replace legal analysis.

The EAT’s judgment implicitly recognises that employers are not mental‑health professionals. They must make decisions based on workplace safety, reputation, and trust. When an employee publicly posts material that colleagues find frightening or destabilising, the employer’s concerns are not irrational.

5. What Happens Next?

The case is remitted to the same ET, but with a very different task:

Reassess contributory conduct properly
Reassess reinstatement in light of all posts, including those made during litigation
Consider Article 10 freedom of expression
Evaluate whether DHL can genuinely and rationally trust the claimant

Given the later posts involving violent imagery and abusive language, the prospects of reinstatement now appear remote.

Conclusion: A Case About Boundaries—Legal, Personal, and Digital

DHL v Ignatowicz is a modern employment‑law parable. It sits at the intersection of:

employee free expression
employer reputation
mental health
social media’s porous boundaries
the limits of reinstatement as a remedy

The ET had treated the case as a simple unfair dismissal. The EAT recognised it as something more complex: a breakdown of trust fuelled by online behaviour that the employer could not reasonably ignore.

In the end, the judgment is a reminder that employment relationships are built on confidence—and that once confidence is shattered, tribunals cannot simply will it back into existence.

By Pat Harrington

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

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