8 minute read | June.01.2026
In this month’s highlights, our team summarises the latest developments in UK employment law and their implications for employers. Catch up on April's highlights here.
In Tarbuc v Martello Piling Ltd, the Employment Appeal Tribunal (EAT) held that an employment tribunal had taken an unduly narrow approach when assessing whether an employer’s conduct in a “protected conversation” under section 111A of the Employment Rights Act 1996 (ERA) was improper. Under section 111A of the ERA, what is said in those discussions is usually inadmissible in an ordinary unfair dismissal claim. The tribunal had focused solely on what was said during the meeting itself and failed to consider the wider context, including the employee’s complaint that he had been ambushed without notice and denied the opportunity to bring a companion.
The employee had been invited to a meeting to discuss a proposed redundancy and settlement. He alleged that he was threatened with redundancy if he refused the settlement offer, that the meeting was sprung on him without warning, and that he was given insufficient time to consider the proposal. Following his dismissal, he brought claims including unfair dismissal, unauthorised deductions from wages and part‑time worker discrimination. The employer sought to exclude evidence of the meeting under section 111A of the ERA.
The EAT held, first, that the tribunal had erred in applying section 111A to all of the employee’s claims. Statutory protection under section 111A applies only to ordinary unfair dismissal claims and does not extend to other causes of action such as unauthorised deductions or discrimination claims.
Second, the EAT held that the tribunal had erred in its assessment of “improper behaviour”. It was wrong to consider only the content and tone of what was said during the meeting, without addressing the employee’s complaints about the manner in which the meeting was arranged. Whether an “ambush” meeting or the absence of a companion amounts to improper behaviour is a fact‑sensitive question, but it must be considered expressly and as part of the overall assessment. Because this had not been done, the issue of improper behaviour was remitted for reconsideration.
The EAT also observed that, in this case, the time given to consider the settlement offer did not materially add to any pressure on the employee, as he had rejected the offer outright at the meeting. In addition, the Acas guidance on allowing ten days to consider settlement terms was not determinative, as the document provided amounted only to proposed heads of terms, rather than a formal settlement agreement.
Key takeaway for employers:
Employers should be mindful of the limits of a protected conversation. This type of confidential discussion with an employee is typically inadmissible in ordinary unfair dismissal proceedings, but it can be admissible in other types of claims, such as discrimination or whistleblowing. Further, employers should carefully consider how protected conversations are conducted, as improper behaviour might be admissible in ordinary unfair dismissal proceedings.
In Tesco Stores Ltd v Element and others, the Court of Appeal upheld the employment tribunal’s approach to identifying “work” under section 65(6) of the Equality Act 2010 in large‑scale equal pay litigation. The Court confirmed that, in a highly regulated working environment, the tribunal was entitled to treat the employer’s detailed and prescriptive training materials as the most reliable evidence of what the claimants and their comparators were required to do. Those materials provided a more appropriate starting point for factual findings about the work than the parties’ witness evidence. The Court also criticised the “hyper‑granular” approach that has developed in mass equal pay claims, involving excessively detailed job descriptions and challenges to every point of detail, contrary to the overriding objective and something that tribunals should resist.
The claims were brought in 2018 by thousands of predominantly female, store‑based supermarket employees seeking pay parity with higher‑paid, mainly male employees working in distribution centres. Given the scale of the litigation, the claims were divided into tranches, with the first tranche comprising a sample group of store‑based customer assistants and distribution‑centre comparators. The claimants alleged that their work was of equal value under section 65(6)(b) of the Equality Act 2010, by reference to factors such as effort, skill and decision‑making.
Before the stage 2 equal value hearing, which was designed to resolve disputed factual issues so that an independent expert could assess the work, the parties prepared detailed equal value job descriptions and records of dispute identifying thousands of contested points. Rather than determining each dispute individually, the tribunal concluded that this approach was inconsistent with the interests of justice and found training documentation was the best evidence of job requirements, directing the parties to produce revised job descriptions and dispute records based on those materials. A subsequent judgment applied this approach and relied primarily on the training documentation. The employer appealed.
The Court of Appeal rejected the employer’s argument that the tribunal had adopted the wrong test for identifying “work”. It held that the relevant question was what the employer required the employee to do as part of the wage–work bargain, not what employees happened to do on a day‑to‑day basis. In this case, the work was highly regulated and intended to be performed consistently across the organisation, making the training materials an objective and reliable account of the job requirements. The tribunal had not treated those materials as decisive and had expressly recognised that they could be displaced by cogent contrary evidence.
The Court of Appeal also held that the tribunal was not required to make express findings about the training actually received by individual employees. In the regulated and prescriptive context of the employer’s operations, it was a permissible factual assumption that jobholders had received the training described. In addition, the Court confirmed that appeals against factual findings must be confined to the specific findings identified in the notice of appeal, unless a structural error of law is established. However, the Court agreed that the tribunal had erred in making findings inconsistent with facts agreed between the parties, as the tribunal’s powers are limited to determining disputed facts relevant to equal value.
Finally, the Court of Appeal stated that tribunals should resist overly detailed and adversarial approaches to equal value fact‑finding in mass claims. Wherever possible, tribunals should rely on objective contemporary evidence and ensure that the outcome of the stage 2 process is presented in a form that assists, rather than hinders, the independent expert’s evaluation.
Key takeaway for employers:
Employers should review how roles are defined, documented and implemented across their organisation. Clear and up‑to‑date training materials, role profiles and operational guidance are likely to carry significant weight in equal pay claims and so employers should ensure these documents accurately reflect what employees are required to do in practice and are applied consistently.
Among other changes, the Employment Rights Act 2025 will reduce the qualifying service period required to bring an ordinary unfair dismissal claim from two years to six months from 1 January 2027. At the same time, the existing cap on compensatory awards for ordinary unfair dismissal claims will be removed entirely.
In January and February 2026, the Department for Business and Trade (DBT) held discussions with stakeholders to consider their views on: (i) what the impacts of the changes to the law on unfair dismissal might be; and (ii) what steps might support the implementation of the changes. These stakeholders included groups representing both employees and employers from the public and private sectors.
The stakeholders expressed concern about how the removal of the cap on compensation awards could impact business decisions, such as whether to have business operations in the UK and whether to hire employees, particularly those employees who are highly paid. A suggestion was made that guidance on how to manage performance and dismissal in relation to senior executives would be helpful for employers.
Further, the stakeholders suggested that it would be helpful to receive guidance on how the changes to the law on unfair dismissal could affect the calculation of compensatory awards, particularly for senior executive roles.
Finally, these discussions raised the issue of the potential increased burden on the employment tribunal system as a result of the changes. It was noted that reforms to the dispute resolution system and further guidance and support for the employment tribunal were important in the light of these changes.
The DBT intends to issue guidance for employers and employees on the changes to unfair dismissal to assist in understanding the potential practical implications.
Key takeaway for employers:
Employers should review the guidance when it is issued and consider engaging external legal counsel for advice on the implications for their business and workforce.