Category Archives: Employment Law

Equal pay claims can grind on for years before resolution. However, the ground has shifted since the Court of Appeal (CoA) took Tesco’s own operating and training manual as the definitive source on employee roles rather than any granular analysis of their activity.

This claim began in 2018 when almost 60,000 Tesco store workers, primarily women, argued that their roles held equal value to those of their male counterparts in higher-paid distribution centre jobs. This pay dispute pivoted unexpectedly when the Tribunal issued its Judgement 1 in July 2023. Instead of parsing thousands of individual instances, it ruled that Tesco’s own weighty corporate manuals were the definitive evidence of role requirements. Tesco fought this argument vigorously, appealing for a rehearing that would have delayed the outcome by a further three years. However, the Tribunal held its ground, issuing a 619-page Judgement 2 in July 2024, appending a further 750 training documents.

The CoA delivered a resounding vindication for the claimants on four of five grounds in relation to Sections 64 and 65 of the Equality Act 2010, which define "relevant types of work" and establish that such work is deemed to be of "equal value" if it demands similar levels of effort, skill, and decision-making. Ultimately, this ruling effectively defines a ‘role’ as what the employer requires the employee to do – roles that are exhaustively detailed within Tesco’s voluminous training manuals.

This ruling is clear and constitutes a significant strategic advantage for litigants in equal pay claims, in effect shifting the body of evidence from invasive, second-by-second monitoring of employees’ daily activities to the blueprints of the company’s own operational handbooks and mandatory training manuals. The devil, it appears, lies in the detail, and these weighty tomes form the very rope by which employers effectively hang themselves. Indeed, such exhaustive detail can be leveraged to demonstrate the true complexity, effort, and skill a prescribed role actually requires.

By validating the use of extant corporate manuals to establish the baseline requirements of a position, the CoA has effectively streamlined the fact-gathering phase of equal pay litigation, and employers can no longer easily escape liability under a ‘Section 69 material factor defence’ by simply downplaying the everyday realities of female-dominated roles if their own written guidance suggests otherwise. So, if an employer demands exhaustive operational perfection on paper, then the law will hold them accountable when structuring employee pay. Employers should take care not to be caught in flagrant self-contradiction by their own documentation.

In the world of HR, the ubiquitous disclaimer "subject to references" is often viewed by employers as an escape clause, one which allows them to withdraw an offer at any time before “Day One”. However, a recent ruling has clarified that a conditional offer can become a binding legal contract long before an employee even steps into the role.

Mr. Swamy applied for the post of project manager and was formally offered the role "subject to receipt of satisfactory references, a right-to-work (RTW) check, and a successful six-month probation period". Mr. Swamy formally accepted the offer via email, provided the contact details of his references, and submitted his RTW documents. Loesche Energy Systems Ltd. (Loesche) then advised Mr. Swamy to seek a 12-month rental, as he was initially to be based in the UK. However, only weeks before he was due to start, Loesche informed him that their own client contract had been delayed and that they were "no longer able to offer" the position as specified. Mr. Swamy brought a claim for breach of contract, arguing that a binding agreement had existed, one which entitled him to notice pay.

The Appeal Tribunal sided with Mr. Swamy, finding that the offer letter had contained all the essential terms in terms of salary, hours, start date, and probation period. Crucially, as a probation period can only be initiated after employment begins, it was logical to view the entire package as a concluded contract, and thus Loesche did not have the unrestricted right to withdraw. By failing to provide sufficient notice, they had effectively breached the contract.

As the written contract was silent as to how much notice was required, the Tribunal had to infer a term of "reasonable notice". Despite Loesche’s attempt to argue for a "zero-day" notice period (or a statutory minimum of a week), the Tribunal determined that three months was the only reasonable term given the request that Mr. Swamy secure a 12-month rental property.

This ruling carries significant weight for anyone involved in recruitment, given that employees are now protected from “Day One” after they accept a clear offer, even if "onboarding" checks are in progress. If an employer withdraws an offer for reasons unrelated to background checks, such as a change in business fortunes, then significant damages can be awarded based on an implied notice period. Thus, employers should rigorously review offer letters and pre-employment correspondence and cannot rely on "standard terms" that the candidate has not seen. To avoid any unexpected liability, employers must be explicit about notice periods during the pre-start phase and understand that, once an offer is accepted, a legal "point of no return" has been crossed.

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.