Employment Law

Employment disputes can drag on for years, which inevitably raises the question of how long is too long for a hearing to be deemed fair. Mr. Boateng was originally employed in January 2017 by a gentlemen’s outfitters at their branch in the Strand before being relocated and promoted to hiring manager. After an incident involving the claimant and several colleagues at the Stratford branch on 23 July 2019, he was ultimately dismissed on grounds of ‘misconduct’ on 28 October 2019 after an unsuccessful internal appeal.

In early 2020, Mr. Boateng initiated legal proceedings concerning over thirty allegations of racial and religious discrimination dating back to 2017, in parallel with a claim for unfair dismissal. However, the hearing was postponed for over a year due to the pandemic and a formal insolvency process. By the time the case reached a preliminary assessment in 2023, the evidentiary landscape had shifted dramatically, as 21 of the 22 individuals concerned had since left the company. Moreover, the outfitter reported that 17 of those former employees were either impossible to locate or else explicitly refused to participate in the tribunal. As the earliest allegations were by then historical, the employer argued that they could no longer mount a meaningful defence, as the collective "memory of the firm" had essentially dissipated.

Both tribunals concurred that the discrimination claims should be struck out under Rule 37(1)(e) of the Employment Tribunal Rules, which allows for the termination of a case if a "fair hearing" is no longer possible. As almost every key witness had been lost, this was deemed to have created a "substantial disadvantage" to the employer, one transcending mere inconvenience. As discrimination claims require an employer to be able to call the specific person accused of discrimination to explain their mental processes, per Section 136 of the Equality Act 2010, the narrative was fragmented. Thus, no balanced picture could emerge, as only the “dismissing officer” was still available to testify.

This case reiterates that both sides have the right to a fair trial under Article 6 of the ECHR, thereby highlighting the importance of pursuing claims promptly and of keeping detailed contemporaneous records, as witnesses cannot later be relied upon to remain available or indeed helpful so many years after the fact. For employers, this case demonstrates the value of conducting timely and thorough internal investigations and of obtaining and preserving witness statements. Thus, even if a staff member leaves the company, a robust written record created at the time of the grievance can serve as a "documentary bridge" to ensure a fair hearing.

A pivotal ruling has raised a protective umbrella over those impacted by a toxic workplace environment, potentially extending employers' legal liability by months or even years.

An Employment Tribunal had to decide whether the employers of a harassed employee, who was actively considering a change of employment, could use this intention to leave as a pretext to slash their compensation. An employee of the British Council was posted to Morocco in October 2018, where she was subjected to a campaign of sustained harassment by a colleague, culminating in her filing a grievance. However, the report blamed her for “sending mixed messages,” romanticising the offender’s behaviour as that of a "spurned lover". Thus, the British Council refused to uphold her sexual harassment claims, despite actual evidence of physical assault. She resigned and presented her claims to an Employment Tribunal for constructive unfair dismissal, direct sex discrimination, sexual harassment, and victimisation.

The first Tribunal upheld all the claims, save that of victimisation, finding multiple repudiatory breaches of the implied term of trust and confidence, plus discriminatory conduct for which the British Council was vicariously liable. However, the first Tribunal applied a 35% Polkey reduction to the unfair dismissal compensation and a 35% Chagger reduction to discrimination compensation (based on the possibility that the appellant might have left her employment with a reduced benefits package, plus evidence that she was contemplating a move to other roles). She appealed the deductions, leading the British Council to cross-appeal, contending that the sexual harassment claim was ‘out of time’.

The Appeal Tribunal allowed the appeal on the Chagger deduction, as the victim’s urge to leave was influenced by the very harassment she had suffered, while the 35% Polkey deduction from discrimination compensation could not stand. The Appeal Tribunal also dismissed the British Council's cross-appeal, finding that the sexual harassment was part of a continuous pattern of discrimination.

This ruling upholds the notion that "career intentions" do not take place in an ivory tower. Thus, any compensation awarded should reflect a hypothetically successful career, given sufficient dignity and protection from harassment. Crucially, the "limitation period" for such a claim does not necessarily reset after every individual act of harassment. If a company handles a grievance poorly or tacitly permits a "climate" of harassment to persist, then it effectively creates a single, continuous legal event, one which allows a claimant to sue for historical misconduct. Thus, employers, especially in light of the recent advent of the

Employment Rights Act, must act swiftly to nip all such behaviours in the bud to prevent them from potentially escalating into a weighty compensation claim.

Annual leave & holiday pay (effective April 2026)

From 6 April, the Employment Rights Act (ERA) 2025 has introduced strict new record-keeping duties, requiring employers to maintain detailed records of annual leave, carried-over holiday, and holiday pay. Employers must keep these records for six years, with failure to do so potentially resulting in severe financial penalties under the newly created Fair Work Agency (FWA). These changes address previous gaps in law regarding record retention, placing a higher administrative burden on businesses to ensure compliance.

Redundancy provisions (April 2026)

The cost of procedural errors during collective redundancies has effectively doubled, as the maximum protective award for failing to properly inform and consult on redundancies involving 20 or more staff has increased from 90 days to 180 days of gross pay. This change places a significant premium on early and transparent consultation with staff and unions to minimise the risk of severe financial penalties.

National Living Wage to increase (April 2026)

As of 1 April 2026, all employers must ensure that their payroll reflects the new statutory rates, including an increase in the National Living Wage (NLW) to £12.71 per hour for those aged 21 and over, £10.85 for 18–20 year olds, and £8.00 per hour for 16–17 year olds and apprentices, while statutory maternity, paternity, and adoption pay have also risen to £194.32 pw.

Guaranteed hours (2027)

Zero-hours and low-hours workers will have the right to request guaranteed hours, compensation for cancelled shifts, and reasonable notice of working schedules. Employers must pay for shifts that are cancelled, moved, or reduced at short notice. Employers will be required to provide reasonable notice when scheduling or changing shifts, although the precise definition of "reasonable" is yet to be determined.

The FWA’s draconian new powers

To ensure these new rights are strictly followed, the government has established the FWA as a single, powerful enforcement body. The FWA has the authority to inspect workplaces (by forceful entry if necessary), audit payroll records for minimum wage and holiday pay compliance, and bring court proceedings against any organisations that fall short of statutory standards. This increased oversight coincides with major trade union reforms that make it significantly easier for unions to gain recognition. The membership threshold for recognition applications has dropped from 10% to just 2%, and the requirement for a 50% turnout in industrial action ballots has been removed. With the introduction of electronic and workplace balloting, the logistical barriers to organising industrial action have effectively been lowered, making it essential for employers to cultivate positive, proactive relations with their workforce.

Paternity Leave

As of Monday, 6 April 2026, the Employment Rights Act (ERA) 2025 will fundamentally transform the UK workplace by introducing several "Day One" entitlements. Now, paid paternity leave and unpaid parental leave are Day One Rights, granted immediately upon joining a firm. Fathers will also be permitted to take paternity leave, even after finishing a period of shared parental leave, a change that applies to all babies born or placed for adoption. Further, employers should take note of the recent introduction of Bereaved Partner’s Paternity Leave, which offers up to 52 weeks of protected leave for those whose partner dies before a child’s first birthday.

Statutory Sick Pay

The 3-day "waiting period" for Statutory Sick Pay (SSP) has also been removed, and SSP is now a Day One Right. Further, the Lower Earnings Limit (LEL), which previously required employees to earn at least £125 pw to qualify, has been scrapped, and all workers, regardless of their weekly pay, are now eligible for either the standard rate of £123.25 pw or 80% of their average weekly earnings, whichever figure is lower. This change obligates an immediate review of HR payroll systems and sickness policies to factor in a likely increase in both the number of eligible employees and total company expenditure on short-term absences.

Whistleblowing Protections

The whistleblowing laws, which have always been a de facto Day One Right, have been broadened to include complaints of sexual harassment as "protected disclosures explicitly". This means that any worker who reports harassment is shielded by law against detriment or unfair dismissal, requiring employers to update their internal whistleblowing and harassment policies to reflect this heightened level of legal protection.

The employment status of a former bricklayer was recently called into question in establishing liability for asbestos exposure. The widow of the late Mr. Eric Alger, who died from mesothelioma, sought access to historical Employer’s Liability

Insurance. Mr. Alger had been contracted to work on a major refurbishment project in 1988. However, because the company had long since been wound up, it had to be restored to the register for this case to be heard. Mr. Alger had worked alongside demolition gangs on the site, although he claimed that he had never been provided with a mask or warned about the risks of asbestos.

The widow’s case was that, while Mr. Alger was self-employed for tax purposes, he was directly engaged by the company to work on the project. The High Court determined that, on the balance of probabilities, Mr. Alger was directly employed by the company and thus fell under the definition of an “employee” for the purposes of Employer’s Liability Insurance, allowing the widow to proceed with the claim for damages. As Mr. Alger had been moved between different areas of the site and performed general labour rather than just specialist bricklaying, the Judge concluded that he was effectively being managed directly by the main contractor and was effectively an employee.

While Mr. Alger was “self-employed” in the eyes of HMRC, if workers provide “labour only,” use the company’s tools, and are moved between tasks at the manager’s discretion, then they are classified as employees, allowing them access to compensation otherwise denied to truly independent businesses. This case further demonstrates that a company’s legal liability may persist long after it has been wound up.

This case has profound implications for any sector that provides equipment or infrastructure, yet declares its workers to be independent subcontractors. Moreover, this landmark ruling may not be confined to liability insurance and could also be extended to other areas of accountability. Employers should thus ensure that the roles of subcontractors are clearly specified.

The National Minimum Wage (NMW) Act 1998 remains contentious, especially after the introduction of the NMW (Amendment) Regulations 2025, as it draws the legal line in the sand between employment and slavery, as highlighted by a recent case.  

The claimant was born in the Philippines in 1990 and travelled to the UAE in the employ of a diplomat and his family, after which she was relocated to London. Her three months of employment in the UK involved extreme exploitation, verbal abuse, threats and isolation, as she was effectively forced to work eighteen-hour days, with no breaks or rest days. Her movements were strictly controlled, as the family retained custody of her passport and frequently locked her inside the flat when they were away. She was further isolated by being denied access to a SIM card or the household Wi-Fi, while her compensation was almost non-existent, falling far below the statutory NMW.

It was concluded that, as she had been a victim of human trafficking and suffered from PTSD, she was granted leave to remain in the UK in 2015. The High Court awarded over £146,000 in ‘punitive’ damages in a “default” assessment, including £85,000 for false imprisonment and injury to feelings, £35,000 for psychiatric injury, and £15,000 in exemplary damages. Given the resurgence of modern slavery and human trafficking cases, this ruling renders “sub-clinical distress” a litigable tort in forced labour cases, potentially reaching the highest band of compensation.  

While the NMW Act allows for a “current rate” uplift in a standard Employment Tribunal, the Judge ruled that this does not automatically apply to a claim brought in tort. If a claimant sues for “servitude” or “negligence” rather than a straight breach of contract, they may only be entitled to the wage rates that existed at the time the work was done. This presents a claimant with a strategic choice between pursuing a statutory (i.e., for higher money) or a tort claim (for general damages, including PTSD).

Cases of severe harassment and abuse can result in a “loss of earnings” that can extend far beyond the period of employment, due to traumatic psychological damage or unwarranted references. Thus, HR departments should actively monitor ongoing workplace conflicts to safeguard against claims under the new Employment Rights Act and NMW (Amendment) Regulations. 

A claimant made allegations of unfair dismissal, discrimination, and detriment resulting from whistleblowing. While his claim against the Council was subsequently withdrawn early on, the claim against the private limited company proceeded.

The respondent, however, argued that the claimant was a volunteer and that his claims were vexatious, threatening to apply for a strike-out order and a costs award in the range of £2,500 to £3,000, although the case was postponed due to bereavement. The conflict escalated when the claimant sent two emails to the Tribunal, the first expressing extreme concern over the respondent’s costs warning, stating that, in the absence of certainty regarding the maximum costs the Tribunal might award, he was considering withdrawing his claim. Later that afternoon, after receiving no reply, he sent a second email declaring that he wished to confirm the withdrawal of his claim unless the Tribunal assured him that no costs order would be made against him.

However, the Tribunal’s internal processing of these emails was disorganised, and the Employment Judge, having seen only the first email, correctly identified it as a potential tactical withdrawal and invited the claimant to clarify his position within 14 days. However, a staff member who had seen the second email, but not the first, sent a letter treating the claim as having been fully withdrawn and cancelled the upcoming hearing, although the claimant had since explicitly stated that he wished to continue with his claim. The chaos continued with the Tribunal asserting that the claim had been unambiguously withdrawn and could not be resurrected.

However, the Appeals Tribunal ruled in favour of the claimant as he had made his intent to withdraw conditional upon receiving advice or guarantees regarding potential costs. This ruling means that employers and respondents can no longer immediately rely on a frustrated or conditional email from a claimant as a “get out of jail free” card. Thus, in future cases, Judges are expected to be more interventionist when an unrepresented party suggests they want to drop a claim due to fear or pressure rather than through a genuine desire to end the pursuit of justice.

This case marks a potential end to the prevalent tactic of sending “warning letters” over potential costs to pressure claimants into dropping ‘weak claims’. While these letters are legally valid and often necessary, the bar for such tactics has now been raised, and respondents should be wary of using the threat of costs to trigger an automatic procedural win, as judges may now be more sympathetic to those in financial distress.

A Tribunal recently ruled that payments made for work into a third-party trust constitute immediate employment earnings. This decision effectively precludes employers from using loan-based structures to obfuscate remuneration.

Mr. Jack was employed by an offshore company based in the Isle of Man while living and working in the UK. Under this arrangement, the fees paid for Mr. Jack’s services were split into a modest basic salary and an employee benefit trust (EBT), which would then advance these funds to Mr. Jack in the form of interest-free loans. Because these payments were categorised as loans rather than salary, they were not initially reported as taxable employment income.

Following an enquiry into Mr. Jack’s self-assessment return, HMRC issued a closure notice concluding that the £48,034 transferred to the EBT actually constituted “redirected earnings” and was, therefore, taxable as employment income under Section 62 of the Income Tax (Earnings and Pensions) Act (ITEPA) 2003. Mr. Jack appealed, arguing that a significant portion of the funds should be exempt from tax since he had repaid approximately £23,479 of those loans in April 2011.

The Tribunal upheld HMRC’s closure notice and applied the Supreme Court’s decision in RFC 2012 plc. The Judge held that, when money was paid into the EBT for work done by Mr. Jack, it effectively became taxable employment income at that exact juncture as “redirected” earnings. Mr. Jack’s argument that he had “fixed” the tax issue by repaying the loans was also rejected, as the tax charge arose on the transfer to the EBT, and anything that happened to the money afterwards did not affect the tax already owed for the 2010/11 tax year.

This ruling confirms that the legal characterisation of a relationship or a payment in a contract is secondary to the reality of the work performed. Care must be taken when creating structures to minimise tax burden and maximise profits, as the full amount transferred to a trust could be seen as ‘earnings’. Based on the Rangers case, if money is paid in return for services, it constitutes remuneration. On the other side of the coin, if a court views a loan as salary, it may also come to view the recipient as a worker who is entitled to full statutory rights.

The High Court recently ruled on the interpretation and enforceability of “discretionary” bonus provisions in employment contracts. Mr. Gagliardi brought a breach of employment contract claim against a former hedge fund which had contracted him as a senior portfolio manager. The contract in question included a salary, a sign-on payment, a new-issue bonus, and a discretionary bonus based on profitable revenues. Mr. Gagliardi was specifically recruited by the CEO to expand into the US market owing to his expertise in block trading and his valuable relationships with major US banks. The hedge fund’s primary goal was to secure the benefit of these relationships and scale its business quickly, with the CEO tacitly acknowledging that they were essentially “buying his relationships,” hiring Mr. Gagliardi on a “trade and get paid” basis.

Upon joining, Mr. Gagliardi immediately began actively trading in the A1 share class without completing his onboarding process or receiving formal risk limits, leading to conflict with the CIO and risk manager. However, the CEO consistently prioritised Mr. Gagliardi’s trading activity over internal procedure, despite him often exceeding specified trading limits, frequently granting retrospective approval. Mr. Gagliardi’s lack of attention to compliance was also overlooked, as the CEO continued to prioritise profitability. However, a market-wide regulatory inquiry into block trading led to subpoenas to the claimant and the hedge fund by early 2022, prompting the fund to withhold payment of his discretionary bonus. This led the claimant to sue the hedge fund for breach of contract.

The High Court ruled in favour of Mr. Gagliardi, awarding him $5.385m in damages (plus interest), determining that his former hedge fund had indeed breached its contractual obligations in failing to award him any discretionary bonus for his trading activities in 2021. The Judge ruled that the hedge fund’s contractual discretion (governed by Delaware law) was neither broad nor unfettered and, as such, was subject to prescribed contractual criteria.

Despite the use of the term “discretionary,” the High Court has affirmed the principle that an employer’s discretion is not absolute where a bonus is tied to measurable performance criteria such as revenue contributions and profits. This ruling emphasises that, where an employee delivers exceptional financial performance, an employer cannot arbitrarily or irrationally refuse to pay a bonus, as this would constitute a breach of contract, irrespective of any allegations of minor breaches, misconduct or poor attitude that did not reach the threshold for disciplinary action or termination over the period in question. Employers should thus take care over phraseology when structuring discretionary bonuses into contracts.

The Court of Appeal has ruled that the initiation of legal or arbitral proceedings by an employer against a ‘whistleblower’ who has made a protected disclosure constitutes an actionable detriment under the Employment Rights Act (ERA) 1996, effectively overriding the defence of Judicial Proceedings Immunity, or JPI. 

In November 2021, the claimant, initiated Employment Tribunal proceedings against his former employer for post-employment detriment as a consequence of whistleblowing. The claimant, who had worked at his employers’ London residence until his resignation in 2019, alleged that he made protected disclosures regarding instances of verbal and physical abuse by his employer directed at members of staff.

The respondent’s defence was that the claimant had made the allegations for financial gain rather than for altruistic reasons, had breached a confidentiality and independent consulting agreement under ICC Rules, and was effectively running an “extortion scheme” by making “false claims”.  

The Court allowed the appeal based on the protection of whistleblowers by the ERA 1996, concluding that this statutory protection overrides the common law doctrine of JPI. In the Court’s view, allowing an employer to use litigation as a shield against a whistleblowing claim would render the legislation meaningless, as Section 47B(1) of the ERA provides a right not to be subjected to “any detriment by any act” by an employer for making a protected disclosure, including any perceived breach of confidence, as such a mechanism would effectively enable employers to escape liability by suing whistleblowers. Moreover, under Section 43J of the ERA, any confidentiality agreement that precludes a protected disclosure is deemed to be void.  

Thus, the initiation of legal or arbitral proceedings by an employer against a worker, when executed on the ground of a protected disclosure, is actionable as a detriment under Section 47B of the ERA. This ruling effectively prevents employers from using litigation as a de facto penalty or “punitive tool” to harass or financially pressure a whistleblower. The Court has now established that this protection is not limited to threats, but also extends to the act of commencing proceedings. Employers should note that they cannot simply bypass Section 43J by enforcing a confidentiality clause through arbitration proceedings.