Employment Law Update - November 2025

We have had a number of interesting cases reported this month, with implications for employers defending whistleblowing and constructive dismissal claims, seeking costs awards from claimants and dealing with evidence discovered after a Tribunal has delivered its judgement. We also report on continued uncertainty surrounding the Employment Rights Bill.

• Whistleblowing claims for detriment and dismissal
• An employee who delays in resigning has not necessarily affirmed their contract
• Fresh evidence found after a Tribunal judgment can still be considered
• Costs awards – prospects of success may change
• Employment Rights Bill – Houses of Commons and Lord are not aligned
• ACAS Early Conciliation Period extended

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Court of Appeal clarifies that dismissals can lead to claims for unfair dismissal and unlawful detriment

Rice v Wicked Vision Ltd

Facts of the case

These conjoined appeals - Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell - concern the interaction between two parts of the Employment Rights Act 1996 (ERA):

• Part V, which protects workers from detriment for making protected disclosures (whistleblowing)

• Part X, which governs unfair dismissal, including automatic unfair dismissal under section 103A for whistleblowing

In Wicked Vision, Mr Rice was Head of UK Sales from December 2019 until his dismissal in February 2021, ostensibly for redundancy. He alleged the real reason was his protected disclosures and claimed automatic unfair dismissal under section 103A. Shortly before a case management hearing, he sought to amend his claim to include detriment claims under section 47B, including his dismissal as a detriment caused by a co-worker (the company owner). The Employment Tribunal (ET) allowed the amendment, but the Employment Appeal Tribunal (EAT) overturned that decision, holding that section 47B(2) barred such claims where the detriment amounted to dismissal.

In Barton Turns, Ms Treadwell claimed automatic unfair dismissal under section 103A and section 100(1)(c) (health and safety) after raising safety concerns. She also sought to amend her claim to include detriment claims under section 47B, including her dismissal. The ET allowed amendments for non-dismissal detriments but refused to include dismissal. On appeal, the EAT allowed her appeal, relying on Timis v Osipov, which held that employees can bring claims against co-workers for detriments amounting to dismissal and against employers on a vicarious liability basis.

The conflicting EAT decisions created uncertainty, prompting these appeals to the Court of Appeal.

The Court of Appeal’s decision

The central question was whether section 47B(2) prevents an employee from bringing a detriment claim under Part V where the detriment complained of is dismissal, even if framed as a co-worker’s act under section 47B(1A) and the employer’s vicarious liability under section 47B(1B).

Statutory framework

• Section 47B(1) gives workers the right not to suffer detriment for making protected disclosures

• Subsections (1A)–(1E), added in 2013, extend liability to co-workers and agents and impose vicarious liability on employers

• Section 47B(2) states:

  “This section does not apply where (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X)”

Osipov precedent

In Timis v Osipov, the Court of Appeal held that section 47B(2) does not bar claims against co-workers for detriments amounting to dismissal, nor claims against employers based on vicarious liability for those acts. The only bar is to claims against the employer for its own act of dismissal. This interpretation allowed employees to pursue both unfair dismissal and detriment claims arising from dismissal.

Court of appeal’s analysis

The Court of Appeal expressed strong reservations about Osipov’s reasoning, describing section 47B(2) as “unambiguous.” In its view:

• Parliament intended Parts V and X to be complementary, not overlapping. Employees dismissed for whistleblowing should claim under Part X, not Part V
• The phrase “amounts to dismissal (within the meaning of Part X)” is clear: if the detriment is, in substance, dismissal, Part V does not apply
• The exclusion applies to the whole of section 47B, including subsections (1A)–(1E). The draftsman could have carved out exceptions in 2013 but did not
• Allowing dual claims creates anomalies (e.g., injury to feelings awards under Part V but not Part X) and undermines the statutory scheme

Despite this, the Court held it was bound by Osipov under the doctrine of precedent. Therefore:

• Section 47B(2), as interpreted in Osipov, does not bar claims against co-workers for dismissal-related detriments or vicarious liability claims against employers
• Employment Tribunals must permit amendments to add such claims, subject to time limits and discretion

Outcome

The Claimants in both cases are permitted to bring unfair dismissal claims against their employer and to the claim that their employer was variously liable for their colleague subjecting them to the detriment of dismissing them.

The Court concluded that the current position is unsatisfactory by can only be resolved by the Supreme Court or legislative amendment.

Implications for employers

Unlike unfair dismissal claims, detriment claims allow recovery for injury to feelings.

The decision underscores the importance of robust whistleblowing policies and training for managers and staff. Employers should take “all reasonable steps” to prevent co-worker retaliation against whistleblowers.

EAT issues explores the defence of affirmation to a claim for Constructive Dismissal

In Dr Kate Barry v Upper Thames Medical Group and Others: , the EAT provided guidance to parties seeking to defend constructive dismissal claims on the grounds of “affirmation”.

Facts of the case

• Dr Barry, a general practitioner, began working for the respondents—a partnership of NHS GPs—on 16 April 2018. In early 2019, she developed an autoimmune condition, leading to intermittent absences. Disputes arose over her capability and entitlement to contractual sick pay
• On 10 August 2020, following a capability meeting, Dr Barry suffered a relapse and commenced sickness absence from 24 August 2020 until 26 December 2020. During this period, the respondents ceased paying contractual sick pay on 28 August 2020, despite having paid it for around 17 months previously. The claimant alleged this was a repudiatory breach of contract and part of a cumulative breach of the implied term of trust and confidence
• The sick pay dispute escalated:
• On 11 September 2020, the claimant was informed that sick pay had ceased
• Her union representative raised the issue repeatedly, including a formal letter on 26 November 2020
• On 16 February 2021, the practice manager indicated she was owed over £9,000 in sick pay, but this was never paid
• On 26 March 2021, the senior partner confirmed no sick pay would be paid
• Dr Barry resigned on 6 April 2021, claiming constructive unfair dismissal. The Employment Tribunal (ET) found the respondents had breached an express contractual term by failing to pay sick pay but dismissed the constructive dismissal claim, holding that Dr Barry had affirmed the contract by delaying resignation and indicating willingness to return to work. The ET reasoned that her conduct between September 2020 (when she found out she would not be paid) and April 2021 (when she resigned) suggested she had affirmed the contract, rather than resigning in response to the breach
• Dr Barry appealed to the Employment Appeal Tribunal (EAT) on three grounds:

1. The ET’s finding of affirmation was perverse given its earlier finding that she was unwilling to return to work until the sick pay dispute was resolved
2. The ET wrongly treated union representation as supporting affirmation
3. The ET effectively based affirmation on delay alone

The EAT’s decision and reasoning

• The EAT allowed the appeal and substituted a finding of unfair dismissal

Key legal principles

• When an employer commits a repudiatory breach, the employee may either accept the breach and resign, or affirm the contract and continue working
• Affirmation can be express or implied through conduct, but mere delay does not amount to affirmation (W.E. Cox Toner v Crook [1981]) 
• Acts consistent only with the contract continuing—such as working or accepting wages—may indicate affirmation. However, if the employee reserves their position or seeks to allow the employer to remedy the breach, continued limited performance does not necessarily amount to affirmation
• Context matters: sickness absence and ongoing negotiations can significantly affect whether affirmation is inferred 

Errors in the ET’s approach

• The EAT held that the ET misapplied these principles by:
  
  • Overlooking material factors pointing against affirmation, including:
    • No pay (other than holiday pay) after August 2020
    • No work performed after sick pay ceased.
    • Ongoing dispute and clear reservation of rights
    • Ill health until late December 2020
    • The Respondent’s indication as late as February 2021 that sick pay might be paid
  • Relying heavily on delay without considering that negotiations continued until late March 2021
  • Treating union involvement as supporting affirmation, when in fact it demonstrated the claimant was asserting her contractual rights.
    Contradicting its own finding that the claimant was unwilling to return to work until the sick pay issue was resolved
  • The EAT emphasised that affirmation is about communication by word or deed, not internal intention. Here, the claimant’s conduct—remaining off sick, refusing to work until the dispute was resolved, and engaging in negotiations—was inconsistent with affirmation

Outcome

The EAT concluded that the only possible finding was that Dr Barry had not affirmed the contract. It substituted a decision that she was constructively and unfairly dismissed and remitted the case to the same ET to determine remedy.

Implications for employers

1. Delay alone does not equal affirmation
   Employers cannot assume that an employee who delays resignation after a breach has affirmed the contract. Tribunals will examine the context, including whether the employee was off sick, reserving their position, or seeking resolution
2. Constructive Dismissal Risks in Pay Disputes
   Failure to pay contractual entitlements—such as sick pay—can amount to a repudiatory breach. Employers should ensure clarity in contractual terms and communicate decisions promptly and transparently

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Fresh Evidence successfully admitted by the Claimant after a Tribunal judgment

Mr J Mayanja v City of Bradford Metropolitan District Council 

Facts of the case

• Mr J Mayanja, who identifies as Black African, applied for a role as Refugee and New Communities Integration Officer with Bradford Council in October 2021. He claimed that he was offered the job and accepted it, but the Council later withdrew his candidacy after raising concerns about discrepancies in his application, including salary details and previous employment history
• The Council maintained that no formal offer was made; rather, Mr Mayanja was informed he was the “preferred candidate” subject to pre-employment checks, including references and medical clearance. During this process, the Council alleged that misleading statements in his application came to light, prompting the decision not to proceed
• Mr Mayanja brought multiple claims in the Employment Tribunal (ET), including:
  • Breach of contract (based on the alleged job offer)
  • Direct and indirect race discrimination
  • Victimisation
  • Race harassment (allegedly involving a remark referencing Africa)
• The ET dismissed all claims, finding Mr Mayanja lacked credibility. A key reason was its conclusion that no job offer had been made, and that his evidence about an offer and acceptance was “patently untrue.” The ET also awarded costs of £2,000 against him, citing unreasonable conduct and fabrication of claims
• After the hearing, Mr Mayanja discovered an email dated 18 October 2021 from the recruiting manager stating:

“I’m pleased to say we’d like to offer you the job. Can I give you a ring in the morning to confirm that you want to take it, and discuss start date etc.”

• He applied for reconsideration, attaching this email. The ET accepted the email as genuine but treated the reconsideration as limited to costs, reducing the award to £200. It refused to revisit the liability judgment, reasoning that the claimant could have produced the email earlier with reasonable diligence
• Mr Mayanja appealed both the liability and reconsideration judgments to the Employment Appeal Tribunal (EAT)

The EAT’s decision and reasoning

• The EAT allowed the appeal, setting aside both judgments and remitting the case to a differently constituted ET

Key issues

1. Should the ET have reconsidered the liability judgment in light of the new evidence?
2. Could the claimant reasonably have obtained the email earlier?
3. What impact did the email have on the credibility findings underpinning the ET’s decision?

Fresh evidence principles

• The EAT referred to the Ladd v Marshall [1954] criteria for admitting new evidence:
  • It could not have been obtained with reasonable diligence for use at trial
  • It would probably have an important influence on the result
  • It is apparently credible
• Although the ET suggested the claimant could have found the email earlier, the EAT disagreed. The case management order placed primary responsibility for preparing the bundle on the respondent. The claimant reasonably assumed that if such an email existed, the Council would disclose it. The EAT accepted that the Claimant could not have been expected to locate it earlier

Impact on credibility

• The EAT found the ET’s liability decision was “built on foundations of sand.” The ET’s wholesale rejection of the claimant’s credibility—and preference for the Council’s evidence—was rooted in its belief that no job offer had been made. The newly discovered email directly contradicted that assumption and undermined the ET’s approach of preferring the respondent’s evidence “where there is any conflict.”
• The EAT noted:
  • The ET’s adverse credibility finding was central to dismissing all claims, including discrimination and harassment
  • The email shows the claimant did not fabricate the contract claim, contrary to the ET’s reasoning in awarding costs
• While other inconsistencies existed, the ET’s overarching credibility assessment was fundamentally flawed

Outcome

• Both the liability and costs judgments were set aside
• All claims will be reheard by a different Employment Tribunal to ensure fairness and avoid preconceptions
• The EAT emphasised the risk of tribunals making global credibility assessments based on a single disputed issue

Implications for employers

1. Document management and disclosure duties

This case highlights the importance of robust document retention and disclosure processes. The missing email was pivotal. Employers should:

• Ensure recruitment communications are properly archived and searchable
• Conduct thorough searches when preparing bundles for tribunal hearings

2. Credibility assessments can be fragile

Tribunals often make global credibility findings. If those rest on a single factual assumption later disproved, the entire judgment may collapse. Employers should avoid over-reliance on credibility arguments and ensure documentary evidence supports their case.

3. Recruitment practices under scrutiny

The case also illustrates the need for clear, consistent recruitment processes. Informal communications (e.g., emails suggesting an offer) can create contractual and discrimination risks. Managers should:

• Follow formal offer procedures
• Avoid language that could be construed as an unconditional offer before checks are complete

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EAT clarifies when claims lose reasonable prospects for the purposes of costs awards

Mr W Huntley v Siemens Healthcare Ltd

Facts of the case

• Mr Huntley worked for Siemens Healthcare Ltd as a field service engineer from 1992 until his dismissal for gross misconduct in August 2020. His role involved repairing MRI equipment at hospitals, with jobs allocated via a scheduling app
• In April 2020, while still employed, Mr Huntley lodged claims in the Employment Tribunal (ET) alleging disability discrimination and detriment for making protected disclosures. After his dismissal, he expanded his case to include unfair and wrongful dismissal, victimisation, failure to make reasonable adjustments, and further discrimination claims. His disabilities were said to include a spinal injury and depression/anxiety
• The ET hearing ran over two segments:
• April 2022 (seven days) – Mr Huntley represented himself
• November 2022 (five days) – He was represented by counsel
• During the April hearing, the Tribunal repeatedly warned Mr Huntley about fundamental flaws in his case, including:
  
  • Lack of evidence linking detriments to disability or protected disclosures.
  • Time-barred claims
  • No factual basis for automatic unfair dismissal
• The Tribunal urged him to seek legal advice and consider withdrawing claims. Siemens also sent a costs warning letter in July 2022, reiterating these points and offering not to pursue costs if he withdrew
• Despite this, Mr Huntley continued with his claims into November. By the end of the hearing, most claims were withdrawn or dismissed. The ET found:
  
  • Disability discrimination: No link between disability and alleged detriments; some PCPs not applied; others were reasonable or out of time
  • Unfair dismissal: Dismissal was for dishonesty and was fair
• Protected disclosures: No evidence of a causative link between the disclosure and the dismissal.
• The ET dismissed all claims and later awarded £7,500 costs against Mr Huntley, representing Siemens’ counsel fees for the November hearing. It held that continuing with the claims after April was unreasonable and that they had no reasonable prospect of success
• Mr Huntley appealed to the Employment Appeal Tribunal (EAT) on five grounds, including:
  • Misconstruction of Rule 76(1)(b) (costs threshold)
  • Failure to apply the correct two-stage approach
  • Failure to consider his status as a litigant in person
  • Failure to weigh Siemens’ decision not to seek strike-out

The EAT’s decision 

• The EAT dismissed the appeal

Key legal principles

• Under Rule 76(1) of the Employment Tribunal Rules (now Rule 74 in the 2024 Rules), costs may be awarded if:
  • A party acted unreasonably in bringing or conducting proceedings; or
  • A claim or response had no reasonable prospect of success
• Costs do not follow the event; discretion must be exercised after the threshold is met
• The EAT reaffirmed the staged approach from Radia v Jefferies International [2020]:

1. 1. Determine if a threshold is crossed
   2. Decide, as a matter of discretion, whether to award costs
   3. Assess the amount

When to assess prospects?

• The appellant argued that “had no reasonable prospect of success” must be judged at the outset of proceedings. The EAT rejected this, holding:
  
  • The wording “had” allows assessment at any point in the past, not just the start
  • A claim may start with prospects but later lose them (e.g., after evidence emerges)
  • This interpretation encourages parties to review their case throughout litigation
• The EAT cited Opalkova v Acquire Care Ltd: “It is possible that a claim when served had reasonable prospects, but later developments meant it ceased to have reasonable prospects. It is at that time that the claim ‘had’ no reasonable prospects”

Application to Huntley

• By April 2022, the Tribunal had highlighted serious flaws in the claims
• Siemens issued a clear costs warning
• Mr Huntley had access to legal advice and later representation
• His case did not improve in November; fundamental problems persisted
• The ET was entitled to conclude:
  • The claims had no reasonable prospect of success by April 2022
  • Continuing them into November was unreasonable
  • £7,500 was a reasonable sum given the length and complexity of the hearing

Other grounds

• The ET had applied the correct staged approach
  An employer’s failure to seek strike-out was not determinative as to whether a claim had no reasonable prospects of success
  The ET had considered Mr Huntley’s litigant-in-person status and access to legal advice
  Reasons were adequate when read with the liability judgment and costs application

Implications for employers

1. Whilst in this case, costs were awarded against the Claimant, costs awards can also be made against respondents to cases.  If defending a claim, and facts emerge during the process that impact on the prospects of success, meaning that a defence no longer has reasonable prospects, employers will be exposed to costs award if they continue to defend claims
2. Whilst costs awards remain the exception, rather than the rule, in the Employment Tribunal, if faced with a weak claim, then a timely costs warning letter can help an employer to seek a costs award at the end of the claim

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Employment Rights Bill  - Houses of Commons and Lords are not aligned

The Employment Rights Bill is not enjoying a smooth journey through the parliamentary process. It has been back and forth between the House of Commons and the House of Lords several times, most recently on 17 November. The sticking points include:

• “Day One Unfair Dismissal rights”. The Government accepts that there will not be full protection from Day One of employment and has proposed an Initial Period during which an employer can operate a lighter-touch dismissal process. The majority in the House of Lords are concerned at the impact on business, and have several times proposed amendments to this reform, suggesting that a six month qualifying period would be a better balance between helping workers and businesses. Agreeing to a six month qualification period would break the promise to provide “Day One Unfair Dismissal rights”
• Guaranteed hours contracts:
  • duty to offer or right to request: the Government’s proposal is that all zero hours and low-hours workers should be offered a permanent contract reflecting the hours worked in a particular reference period. The intention is to avoid the exploitation of zero hours contracts and to offer certainty to workers.  Businesses’ concerns have been reflected in the House of Lords, who have suggested that rather that a duty to offer guaranteed hours, an employer’s obligation should extend only to notifying a worker of their right to an offer and to make the offer unless the worker declines or opts out. It is thought that this will reduce the administrative burden on employers
  • Seasonal work – one of the main criticisms of the proposal for guaranteed hours is that it may mean that in seasonal businesses, employers are obliged to offer guaranteed hours that reflect peak hours, rather than a realistic number of hours at the relevant time. The House of Lords have suggested that the Bill should include a definition of “seasonal work”. The Government have this far resisted this amendment, arguing that seasonal businesses can dela with seasonal demand by using annualised hours contracts or limited term contracts
• Thresholds for industrial action
  • The Employment Rights Bill removes the requirement for a 50% turnout in an industrial action ballot.  The House of Lords have proposed, several times, that this be reinstated

The inability of the two Houses to agree has two implications for businesses:

• Uncertainty as to the substantive content of the Bill. Businesses still do not know for certain what the Act will say about issues such as day one unfair dismissal rights and guaranteed hours for zero workers
• Uncertainty as to timing: the Government’s initial roadmap for implementation (reported by us here) assumed that the Bill would have been passed by now.  It may therefore be that some of the implementation timing slips

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ACAS Early Conciliation period extended to 12 weeks

With effect from 1 December 2025, the standard conciliation period for claims notified to ACAS will be extended from 6 to 12 weeks. One implication for employers is that once this is combined with the extension of the time limit for all claims to 6 months, it could easily be nearly a year after incidents/dismissals that Employment Tribunal claims are made. Combined with backlogs in the system, these changes mean that claims will not be heard until a long time after the events in issue. It increases the likelihood of witnesses no longer being employed by the relevant employer and employers may wish to take steps to address this (for example, by securing witness co-operation when they leave employment).