In this new edition of our Need to Know employment law newsletter we assess the impact of the newly published draft Code of Practice on Disciplinary and Grievance Procedures, ask when training cost repayment clauses become unenforceable, and look at how changes to unfair dismissal laws could see the end of the six-month probationary periods.
- Acas publishes fully revised draft Code of Practice on Disciplinary and Grievance Procedures
- Training Cost Repayment Clauses – When Do They Become Unenforceable?
- The Strange Death of the Six-month Probationary Period?
Also included are our usual HR Bullets, which cover other significant employment law updates from the past month.
HR Bullets
- The Employment Appeal Tribunal (EAT) allowed an appeal against the dismissal of disability discrimination and victimisation claims under sections 15 and 27 of the Equality Act 2010. The claimant, disabled by reason of depression, had applied under the Guaranteed Interview Scheme (GIS) and was investigated for alleged dishonesty. The tribunal erred in finding the investigation did not arise from a disability and that ticking the GIS box was not a protected act. The EAT substituted a finding on causation and remitted the justification defence and victimisation issues to the tribunal.
Shah v Home Office [2026] EAT 103
- The Employment Appeal Tribunal (EAT) dismissed an employer’s appeal against a finding that it breached section 145B TULRCA 1992 by making a direct pay offer to around 1,250 unionised employees without the recognised union’s agreement. Applying Kostal UK Ltd v Dunkley, the tribunal was entitled to find a real possibility that terms would have been collectively bargained, given unstructured and unexhausted bargaining arrangements. It was also entitled to find the prohibited purpose was met by the employer abandoning the agreed bargaining procedure.
London North Eastern Railway Ltd and another v Jiwanji & others [2026] EAT 102
- The Employment Appeal Tribunal (EAT) allowed an appeal concerning the GMC’s retention of a published warning against a doctor. The tribunal erred by treating the act as crystallising on first publication, rather than considering whether the complaint concerned conduct extending over a period under section 123(3) of the Equality Act 2010, ending only on removal. The statutory language, not the shorthand “continuing acts”, should be the focus. Reliance on prejudice to a different respondent was also wrong. The limitation decision was remitted.
Mokhammad v (1) General Medical Council (2) HCL Doctors Ltd (3) University Hospitals Birmingham NHS Foundation Trust [2026] EAT 79
- The Employment Appeal Tribunal (EAT) held that the statutory right to be accompanied at a disciplinary or grievance hearing under section 10 ERA 1999 only arises where the worker requests it. This applies even where the worker did not appreciate the right applied because the employer failed to explain the meeting’s purpose, and even though it was too late to invoke the right once dismissed. Section 10(1)(b) is unambiguous, and there is no general reasonableness duty importing an obligation to alert workers to the right. It remains best practice, and advisable, to alert the individual to the right to be accompanied.
Wolfe v Taka Mayfair Ltd [2026] EAT 106
- The Employment Appeal Tribunal (EAT) upheld the dismissal of sexual harassment claims, finding no error in the tribunal’s treatment of consent and capacity when intoxicated. Section 26 of the Equality Act 2010 does not use “consent”, but consent is relevant to whether conduct is “unwanted”; where there is a power imbalance, conduct may still be unwanted despite consent. Drunken consent remains valid unless capacity is lacking, and “unwanted” should not be glossed with terms like “unwelcome”. The refusal to extend time was upheld.
AB v GH Ltd [2026] EAT 115
- The Employment Appeal Tribunal (EAT) held that an employment judge erred in refusing written reasons for a re-employment remedy decision because the parties had since settled by COT3. Nothing in the Employment Tribunals Rules of Procedure 2013 provides that settlement terminates an entitlement to written reasons already validly requested under rule 62. The claimant’s settlement email could not be read as a clear withdrawal, and written reasons serve purposes beyond enabling an appeal. A decision was substituted requiring the reasons to be given.
Jeffery v Givaudan UK Ltd [2026] EAT 114
- The Employment Appeal Tribunal (EAT) dismissed an appeal by a university lecturer dismissed for gross misconduct after using inappropriate language towards students. The tribunal was not obliged to consider Article 10 ECHR of its own motion where the point had not “shouted out” from the pleaded case, and need not consider Convention rights as a matter of course in speech-related dismissals. The claimant could not raise Article 10 for the first time on appeal, and no error arose on academic freedom of speech provisions.
Cherrington v University of Derby [2026] EAT 107
- The Employment Appeal Tribunal (EAT) dismissed an appeal by a former senior police officer against the dismissal of whistleblowing and constructive dismissal claims based on disclosures to the Independent Police Complaints Commission. The tribunal could consider material closely related to the pleaded passages without being confined to the List of Issues, and did not apply an impermissible “95% true” test under section 43F ERA 1996. Delay and grievance conduct were properly relevant, and a late amendment application was rightly refused.
Jackson v The Chief Constable of Greater Manchester Police [2026] EAT 112