8 minute read | September.02.2026
In this month’s highlights, our team summarises the latest developments in UK employment law and their implications for employers. Catch up on July’s highlights here.
In Cherrington v University of Derby, the Employment Appeal Tribunal (EAT) held that there was no error by the Employment Tribunal (ET) in not considering whether the right to freedom of expression (Article 10 of the European Convention on Human Rights (ECHR)) was relevant to the fairness of the dismissal of an employee who was employed as a university lecturer.
The employee was a university lecturer and was dismissed for gross misconduct because he had made certain inappropriate comments to his students. At the ET, it was held that the employee’s dismissal was fair.
The employee appealed to the EAT on the grounds that the ET failed to consider whether Article 10 of the ECHR was relevant to his unfair dismissal claim, even though the employee had not relied upon Article 10 of the ECHR in his claim nor had he argued Article 10 before the ET. The employee had only made references to freedom of speech generally during the ET proceedings.
In dismissing the appeal, the EAT noted that, for unpleaded issues:
The EAT found that Article 10 of the ECHR did not “shout out” from the claim itself or the way in which it was advanced. The employee’s references to freedom of speech were not focused on the ECHR, and in the majority of dismissals arising from speech-related complaints, Article 10 of the ECHR will have no practical impact on the outcome.
Further, the employee had made misogynistic, transphobic and ableist comments, and so this was not the type of claim where there might be concerns about a “chilling effect” on the use of academic expression.
The EAT also found that an ET is not obliged as a matter of course to consider whether the ECHR may be relevant to a claim for unfair dismissal nor is an ET obliged to consider whether Article 10 of the ECHR is engaged in every unfair dismissal claim involving speech-related complaints. Such an obligation, if imposed, would place an unreasonable burden on ETs and would not be consistent with the narrow principle of issues that should be considered as a matter of course.
The EAT also refused to grant permission to the employee to appeal the issue concerning Article 10 of the ECHR because it was not purely a point of law and required factual investigation. The fact that a new point concerns the ECHR was not in itself an exceptional reason to raise an appeal.
The rights under the ECHR will not necessarily have a material impact on the fairness of the dismissal where employees are seeking to argue rights arising under the ECHR in respect to unfair dismissal claims, especially where they have been dismissed because of inappropriate comments or remarks. The employee must expressly cite the ECHR during the proceedings if relying on the ECHR.
In Edward v North London NHS Foundation Trust, the EAT held that an ET had made a consent order in error in circumstances where the employee had initially agreed to the proposed terms for settling the outstanding issues but later withdrew his consent before the ET had made the consent order.
The employee was dismissed by his employer and brought a claim for victimisation, which was successful in the ET. Although the ET awarded compensation to the employee, the award was reduced because the employee had unreasonably failed to mitigate his loss.
The employee appealed to the EAT to determine whether he had failed to mitigate his past loss, and the EAT remitted this issue for a rehearing on the remedy. Before the rehearing, the employer sent the ET a draft consent order setting out the terms on which the parties agreed to settle the outstanding remedy issue. The employee confirmed in writing to the ET that he agreed to the terms of the draft consent order.
The ET initially issued a judgment dismissing the claim in error, instead of making a consent order. The employee subsequently communicated to the employer and the ET that he withdrew his consent to the draft consent order and wanted to proceed with the rehearing of the remedy issue.
However, the ET revoked the withdrawal judgment and issued a consent order pursuant to Rule 62 of The Employment Tribunal Procedure Rules 2024 on the grounds that the employee already agreed to the draft consent order. The employee appealed the consent order to the EAT.
The EAT found that Rule 62 did not cover a situation where one party had consented and later withdrawn their consent and communicated this to the ET. Rule 62 required both parties to want the ET to make the order at the time it is made. That was not the case because the employee had withdrawn consent before the consent order was made.
The EAT noted that Rule 62 applies if the parties agree in writing or orally at a hearing upon the terms of any order or judgment. Although section 144 of the Equality Act 2010 prohibits contracting out of employment rights except through a qualifying settlement agreement or ACAS conciliation, Rule 62 gives the ET power to make a consent order for full and final settlement of a complaint, despite the fact that the settlement provision in the underlying agreement would not be enforceable under section 144 of the Equality Act 2010.
The consent order was quashed, and the remedy issue was remitted to the ET for a rehearing.
If a consent order is agreed upon with an employee, either party can withdraw consent before an order is made by the ET, assuming the withdrawal is communicated to the ET.
The Supreme Court held in Augustine v Data Cars Ltd that the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regulations) prohibits less favourable treatment where a part-time worker’s part-time status is an effective cause of (rather than sole reason for) the discrimination.
The employee worked as a part-time private hire driver. His employer required all private-hire drivers to pay a weekly fee of £148 to access the employer’s booking system. The employee claimed that the fee was less favourable treatment of him as a part-time employee in contravention of the PTW Regulations because, in effect, he paid a higher fee per hour compared to a full-time employee.
The ET rejected the claim on the grounds that the employee and his full-time comparator were treated in the same way as they were charged the same fee, and the fee was not charged solely because the employee worked on a part-time basis (following the decision in McMenemy v Capita Business Services Ltd).
The claim was appealed to the EAT, who held that the ET had erred in determining whether there was less favourable treatment in contravention of the PTW Regulations. The EAT concluded that the ET was entitled to dismiss the claim because the employee’s part-time status was not the sole reason for the less favourable treatment.
On further appeal to the Court of Appeal (CoA), the CoA dismissed the appeal despite the majority of the judges determining that the decision in McMenemy was wrongly decided. Although the PTW Regulations were intended to implement the EU Part-time Work Directive, which in turn implemented the part-time work Framework Agreement, the Framework Agreement provides that part-time workers shall not be treated less favourably “solely” because they work part-time, but the word “solely” does not appear in the PTW Regulations.
The PTW Regulations provide that the less favourable treatment applies if the treatment is “on the ground” that the worker is a part-time worker. “On the ground” was already established in domestic discrimination law by the time the PTW Regulations were created, such that the protected characteristic only needs to be the effective and predominant cause of the less favourable treatment, not the sole cause.
Nonetheless, the CoA decided that McMenemy should be followed to avoid reaching inconsistent decisions.
On appeal to the Supreme Court (SC), the appeal was allowed. The SC held that even if the Framework Agreement intended a narrow causation test, in the PTW Regulations, the UK Secretary of State could have provided protection under domestic law beyond such a narrow test.
Notably, the Secretary of State did not adopt the “solely” language in the PTW Regulations and opted to use the language of the domestic discrimination law at the time. It implied that this was a deliberate choice.
Requiring a claimant’s part-time worker status to be an effective rather than the sole cause of less favourable treatment is consistent with the PTW Regulations and its purpose. Otherwise, this would be inconsistent with the approach to questions of causation in discrimination cases, and risk uncertainty in outcomes.
This decision widens the scope for part-time workers to bring claims under the PTW Regulations.
Previously, part-time workers would face a relatively high bar in bringing a claim, as they needed to demonstrate that their part-time status was the sole cause for the less favourable treatment. That is no longer the case. A part-time worker need only establish that their part-time status is an effective cause of the less favourable treatment, making it significantly easier to bring a claim.