Employment Law Alert UK – November 2025

Whistleblowing

EAT gives new guidance on application of Jhuti principles to whistleblowing claims. “innocent” dismissing manager was not personally liable for whistleblowing detriment despite tainted input from line manager. The EAT has held that a senior manager who took the decision to dismiss the Claimant could not be held personally liable for whistleblowing detriment (where she was unaware of the Claimant’s protected disclosures). The Claimant’s automatic unfair dismissal claim was remitted for reconsideration having found that the ET failed to properly engage with the question of whether the dismissing manager had been manipulated and induced to adopt a false pretext for the Claimant’s dismissal, following Jhuti. The Claimant, an embryologist, was dismissed in February 2022 for misconduct. Prior to her dismissal she made protected disclosures and was subject to a disciplinary process initiated by her line manager. The disciplinary hearing was conducted by a more senior manager. She did not know about the Claimant’s protected disclosures, but did receive input from the Claimant’s line manager during the disciplinary process. The Claimant brought an automatic unfair dismissal claim (against her employer) and whistleblowing detriment claims, citing the detriment of dismissal (against her employer and the dismissing manager). In relation to automatic unfair dismissal the EAT held that the Tribunal had erred by not fully considering whether the dismissal was a result of manipulation or a false pretext as per Royal Mail v Jhuti, remitting the section 103A claim for reconsideration. In relation to the detriment claims the EAT found that the Tribunal wrongly applied the Jhuti principle, finding that it cannot have been Parliament’s intention to impose liability on an innocent individual not personally motivated by a prohibited reason. The case helpfully clarifies that providing an effective remedy for whistleblowers in “tainted information” scenarios does not extend to imposing personal unlimited liability on innocent individuals who have not personally been motivated by any protected disclosure. However, the EAT did state that, in appropriate circumstances, the Jhuti principles could apply to a direct claim against an employer for whistleblowing detriment. (Henderson v GCRM Ltd & Ors).

Employee relations processes

Procedural imperfections did not undermine overall fairness of disciplinary process.

The EAT has upheld the fairness of the Claimant’s dismissal finding that minor procedural imperfections did not render the disciplinary process unfair. The Claimant was dismissed for gross misconduct, specifically for sending an anonymous harassing email to a colleague (which he denied) and for breaching confidentiality in a subsequent email by referencing findings from a separate investigation. The Claimant brought claims of unfair dismissal, direct race discrimination, harassment related to race, and victimisation, all of which were dismissed by the ET. On appeal, the EAT found that the Tribunal had not erred in its approach: the Claimant had sufficient information to defend himself despite not receiving interview transcripts; the use of an HR-prepared script did not show prejudgment by the dismissing officer; and a search of the Claimant’s work computer did not render the dismissal unfair, as its results were not relied upon in the disciplinary decision. Although there was a significant delay in the Tribunal’s judgment, the EAT held this did not undermine the fairness of the hearing or the outcome. As will come as welcome relief to employers, minor procedural imperfections did not render the disciplinary process unfair. (Mr J Alom v The Financial Conduct Authority)

Failure to comply with early conciliation process leads to lack of jurisdiction, but discretion to amend claim allowed.

The Court of Appeal has held that failure to comply with the early conciliation requirements under section 18A of the Employment Tribunals Act 1996 deprived the Employment Tribunal of jurisdiction to hear a whistleblowing detriment claim. The Claimant, dismissed ostensibly for redundancy, brought claims for automatic unfair dismissal (as a whistleblower) and for detriment due to protected disclosures, naming multiple companies and individuals as respondents. Alongside her claims she made an application for interim relief. She did not provide an Early Conciliation Number (ECN) with her claims. Given the interim relief application, she could rely on an exemption for the lack of ECN with respect to her automatic unfair dismissal claim, but the same does not apply to the detriment claim. The Court of Appeal held that compliance with section 18A is a jurisdictional requirement: failure to invoke the early conciliation process meant the Tribunal had no jurisdiction to hear the detriment claim as originally presented. However, the Court also upheld the Tribunal’s discretion to allow the claimant to amend her claim to cure the defect, given the close connection between the claims and the circumstances of the case. The decision clarifies that early conciliation is a mandatory jurisdictional gateway for most employment claims, but that amendments may be permitted to rectify non-compliance in appropriate cases. (Reynolds v Abel Estate Agent Ltd and ors)

Government makes changes to notification of redundancies.

From 30 November 2025 employers who are proposing to dismiss 20 or more employees will be required to complete the updated HR1 form, and submission may only be made digitally. The form no longer asks for a breakdown of employees by occupational groups. Alongside this a new reason for redundancy has been added: “change in supply chain/loss of supply chain contract.” Perhaps more significantly, it will not be possible to submit a form with a future consultation date. Consultation dates must have already commenced or be commencing on the date of submission.

Tribunal procedure

High Court considers test for stay of proceedings on medical grounds.

The High Court has applied the test set out in Financial Conduct Authority v Avacade to reiterate principles for adjourning a case on medical grounds. The Defendant made an application for a stay of proceedings on medical grounds in light of the fact that a key director was recovering from chemotherapy and unable to provide instructions. The Defendant sought to argue that only that director had the necessary knowledge to instruct solicitors. The Claimant contended that another director was sufficiently involved to proceed. The High Court found that the second director (the husband of the first) had adequate knowledge to instruct solicitors, as evidenced by correspondence and pleadings, and therefore refused the stay, but granted extended time for compliance due to the first director’s health and the second director’s caring responsibilities towards her. Interestingly, the court reiterated that a stay of proceedings is an exceptional order, requiring very clear justification and clear medical evidence. The case also serves as a reminder that the court will closely scrutinise whether alternative sources of instruction are available before granting such relief. It will also look to make reasonable adjustments for disability in line with the Equal Treatment Bench Book. (Friend MTS Limited v Friend Partnership Limited)

EAT considers anonymising judgment in the wake of an increasing number of applications for anonymity.

The EAT has held that the ET was wrong to refuse on the papers the Claimant’s application for permanent anonymity of the judgment from a claim which she had brought more than a year previously. The Claimant applied for permanent anonymity, citing concerns about the public judgment recounting her previous self-harm and suicide attempt, and the risk of further harm to her from continued publication. Crucially, the Claimant indicated that she would be prepared to fund an expert psychological report in support of her application. The ET refused her application on the grounds that it was unsupported by medical evidence, and declined to hold an oral hearing. On appeal, the EAT held that this was an error of law. Fairness required that the Claimant, who had indicated her willingness to obtain expert psychological evidence and requested an oral hearing, be given a reasonable opportunity to gather such evidence before her application was determined. The EAT remitted the matter to a different judge for reconsideration. It noted that post-hearing applications for anonymity are increasingly common due to the online Register, and that the principle of open justice must be balanced with the need to protect vulnerable individuals. (DBP v Scottish Ambulance Service)

EAT holds that cut-off for future loss calculation required a reasoned assessment.

The EAT has held that the ET was wrong to use 65 as the cut-off date for the Claimant’s future losses, based on an “overall feel” that this was just and equitable. Instead the ET should have made an assessment, in a principled way, of the future losses arising from the dismissal, to include considering how long the Claimant might actually continue working taking account of her intentions and other relevant factors. The Claimant was a coach driver. She was summarily dismissed after failing an alcohol test. She brought a successful claim for unfair dismissal solely due to a flawed appeal process. The tribunal applied a 75% Polkey reduction and a 75% contributory conduct reduction to the compensatory and basic awards, together with a 10% ACAS Code uplift to the compensatory award. The EAT did not accept the Claimant’s challenges to the ET’s reasoning regarding Polkey, contributory conduct, and wrongful dismissal. However, the EAT did agree that the ET had erred in limiting the claimant’s future loss calculation to age 65 without sufficient reasoning, failing to consider the Claimant’s current intentions and the likelihood of that changing in the future. The Claimant was 61 at the time of her dismissal, and 63 at the time of the hearing. At that point she had found new employment, albeit at a lower rate of pay. The case was remitted for a fresh assessment of the compensatory award. (Davidson v National Express)

DE&I

EAT upholds decision that Claimant not disabled, dismissing claim without first clarifying the issues.

The EAT has upheld the preliminary decision of the ET that the Claimant was not disabled for the purposes of section 6 of the Equality Act 2010 during the relevant period of alleged discrimination. The Claimant, a litigant in person, argued that the ET erred by not first identifying the specific acts of discrimination before deciding the disability issue, and by failing to consider whether the relevant period should have extended beyond her dismissal. The EAT dismissed the Claimant’s appeal, finding that there is no hard rule requiring the precise nature of discrimination claims to be identified before determining disability status, provided the relevant period is clear from the pleadings and submissions. The EAT also distinguished the case from O’Brien v Bolton St Catherine’s Academy and Cox v Adecco Group Uk and Ireland Ors, finding that the facts did not require the period to extend beyond the dismissal date, as there was no discernible claim of post-dismissal discrimination. The case highlights the significance of the initial threshold of establishing a qualifying disability in such claims. (JP v Spelthorne Borough Council).

Workers’ rights

Government launches four new consultations.

On 23 October 2025 the government launched consultations on:

• The new statutory duty on employers to inform their workers of their legal right to join a trade union. The consultation is about how this should work in practice and closes on 18 December 2025.
• The new legal framework for trade unions’ right of access to workplaces, focusing on how this should work in practice. The consultation will consider how unions could request access, how employers could respond and associated guidance for the CAC. The consultation closes on 18 December 2025.
• Leave for bereavement including pregnancy loss. The consultation considers eligibility for the leave, when and how leave could be taken and the notice and evidence requirements. The consultation closes on 15 January 2026.
• Enhanced dismissal protections for pregnant women and new mothers. The consultation focusses on seeking views on the specific circumstances when the dismissal of pregnant women and new mothers should still be allowed, when the protections should start and end and whether other new parents should be covered by the protections. The consultation also seeks input on how to promote awareness of these rights, support businesses with the changes, and mitigate against any unintended consequences. The consultation closes on 15 January 2026.