Monthly Highlights – UK Employment Law – June 2026

In this month’s highlights, our team summarises the latest developments in UK employment law and their implications for employers. Catch up on May's highlights here.

Employer’s knowledge of an employee’s disability: Occupational Health guidance matters

In Cunningham v. British Broadcasting Corporation, the Employment Appeal Tribunal (EAT) held that any reasonable employment tribunal (ET) would have found that an employer knew or ought to have known that an employee was disabled given the employer’s knowledge of the employee’s health condition and associated adverse effects, and the fact that the employer could have reasonably sought guidance from occupational health (OH) on whether the employee’s condition was long-term. Further, the EAT found that the ET had erred in failing to consider reasonable adjustments in connection with the employee working a late shift which finished after midnight.

Background

The employee was employed as a TV presentation director and worked on a shift basis, including early and late-night shifts. The employer was aware that the employee had diabetes and associated fatigue following a disclosure made by the employee. The employee requested reasonable adjustment because of her diabetes (which she described to her employer as being a disability).

Following an OH assessment, OH recommended that the employee should not work early and late shifts (i.e., that the employee should only complete day shifts) and should be given regular meal and rest breaks as reasonable adjustments. Whilst the employer determined that the employee should no longer work early and late shifts, she was still required to work a shift that finished post-midnight.

During a shift in the evening, the employee was late in commencing a live news broadcast, which resulted in a disciplinary process being initiated against her. Although the employee ultimately did not receive a disciplinary sanction, she found the disciplinary process stressful and took a leave of absence. A further OH assessment advised that the employee should not work shifts that finish at or following midnight. The employee subsequently brought an employment tribunal claim of discrimination arising from disability (in connection with the disciplinary process) and a failure to make a reasonable adjustment by removing her from the evening shift which concluded post-midnight.

The ET’s Findings

There was no failure to make reasonable adjustments according to the ET. The ET found that the employer did not know and could not reasonably have been expected to know of the employee’s disability during the material time. Further, it held that the employee’s error in commencing the live news broadcast late was not in any material way caused by her diabetes, which meant that the disciplinary process was justified.

The EAT’s Findings

On appeal to the EAT, the EAT found that the ET had erred in finding that the employer did not have knowledge of the employee’s disability. The ET should have assessed whether the employer had actual or constructive knowledge of the disability based on the statutory definition. The EAT found that the employer had actual knowledge of the employee’s diabetes and its associated effects but it did not know that the effects were long-term, though the EAT noted that diabetes is known to be a long-term condition. The employer could have asked OH if diabetes was a long-term condition if that was not clear to the employer. The EAT held that any reasonable ET would have found that the employer knew or ought to have known about the disability. The OH report previously referred to “reasonable adjustments” which meant that the employer should have been aware that the employee was disabled, and the employee had previously informed the employer that her condition was a disability.

The reasonable adjustments claim was remitted to a fresh ET because the EAT found that the ET had erred in failing to consider whether it was a reasonable adjustment to exclude the employee from the shift that finished post-midnight. Further, the EAT held that the ET had erred in its approach as to the time limit for the reasonable adjustments claim. Where the failure is an omission, time runs from when the employer might reasonably have been expected to make the adjustment and not when it first should have been made.

Finally, the EAT did not accept the employee’s challenge of the ET’s decision that her disability had no material relevance in her error in delaying the live news broadcast. That decision by the ET was not irrational or wrong given that there was no evidence of exhaustion at the time, no medical evidence connecting the error to the employee’s diabetes, or any indication that there was a connection to the employee’s condition based on the employee’s conduct earlier in the day on which the error occurred.

Key takeaway for employers:

If you are unsure whether a health condition might amount to a disability and/or whether any reasonable adjustments need to be made to the workplace to accommodate a disability, it is best practice to refer the employee to an OH assessment.

Employers should review and consider carefully any OH report to ensure that they understand the nature of the employee’s health condition, which is important in seeking to mitigate disability discrimination claims from arising.

Indirect discrimination and compensation

In Griffiths v. Essex County Council (Essex CC), the Employment Appeal Tribunal (EAT) found that an employment tribunal (ET) had accurately determined the loss of earnings of an employee who claimed unfair constructive dismissal in response to the way in which the employer managed complaints made against the employee. The failure to allow the employee to participate in the disciplinary investigation was an act of indirect disability discrimination and this was the direct cause of the employee’s ultimate loss of earnings. This meant that the later constructive unfair dismissal claim made by the employee did not prevent the employee’s losses from also flowing from the act of indirect discrimination.

Background

The employee worked for Essex CC as a social worker. The employee suffered from anxiety and depression. Essex CC informed the employee that complaints had been made about her work but failed to disclose any further details or that an investigation into the complaints had commenced some months prior. The employee suspected that there was an investigation being conducted because of the conduct of her co-workers towards her, which led to a deterioration in her mental health.

Essex CC’s investigation found that the complaints were not justified. The employee raised a grievance about the way she was treated but did not receive an adequate response from Essex CC. The employee’s appeal against the grievance outcome was also rejected, which meant that the individuals who had made complaints about her would not face disciplinary action for having made unfounded complaints. As a result, the employee claimed that she had been constructively unfairly dismissed.

The ET’s Findings

The ET found that Essex CC had breached the employee’s contract of employment by failing to disclose the background to the complaints made against the employee, failing to deal with the employee’s grievance adequately, and by requiring the employee to work with someone who had made a serious allegation against her which turned out to be unfounded. Accordingly, the ET found that the employee had been constructively dismissed.

Further, the ET found that the employee had been indirectly discriminated against by Essex CC in Essex CC not permitting her to participate in the investigation. That decision was a provision, criterion or practice (PCP) which put the employee (who was disabled) at a particular disadvantage because it was likely to cause a deterioration in her mental health when she was already mentally impaired. The PCP could not be objectively justified.

The ET found that the PCP resulted in the destruction of the relationship between the employee and Essex CC and was a serious disadvantage which damaged the employee’s mental health. This meant that the effect of the indirect disability discrimination was directly connected to the employee’s decision to treat herself as having been constructively dismissed. The ET awarded the employee compensation in excess of the financial cap on unfair dismissal claims.

The compensation award was appealed to the EAT by both parties.

The EAT’s Findings

The EAT found that, based on precedent, an employee who had established that discrimination during employment caused them to resign could argue that the discrimination caused the loss of employment and loss of earnings. The subsequent unfair constructive dismissal which took place did not prevent the loss of earnings flowing from the detriment arising from discrimination.

The ET had found that the discrimination continued for a substantial period and that the consequences continued until the employee had left her employment with Essex CC and that the employee’s trust and confidence had not been repaired. The ET correctly determined the question of causation.

On a related note, the EAT found that the ET had erred in not awarding future loss of earnings to the employee because the job offer the employee had received paid considerably less than her previous employment with Essex CC, and the ET erred in not calculating the employee’s pension loss in accordance with the applicable methods. These matters were remitted to the ET.

Key takeaway for employers:

Employers should not assume that claims involving both discrimination and unfair dismissal will result in the compensation being capped at the current maximum award for unfair dismissal compensation claims. If there is an allegation of discrimination and the employee’s employment ceases because of that discrimination (and there is a direct and clear link between the discrimination and the employee having ceased their employment), then the ET will consider compensation for the employee’s losses on an uncapped basis.

It should be noted, however, that the current financial cap on unfair dismissal claims is expected to be lifted in January 2027, meaning that employees can claim for lost earnings and future earnings on an uncapped basis for ordinary unfair dismissal claims from January 2027.

Government consultation on reform to zero-hour contracts

It is intended that the legal position regarding zero-hour contracts and low hour workers will be reformed significantly in 2027. The UK Government has launched a consultation on the intended measures which aim to bring an end to the flexibility of zero-hour contracts which employers currently enjoy.

The key impending changes are noted below:

Duty to offer guaranteed hours

• To qualify for this, a worker must work under a zero-hours contract or work for hours which are below a certain threshold. This threshold has not yet been determined and the UK Government is consulting on what the threshold should be. The UK Government has indicated that its preference is a threshold which is between 8 and 20 hours per week.
• The UK Government is also consulting on what the reference period should be in calculating the guaranteed hours offered to workers and the length of subsequent reference periods. In addition, the consultation is seeking to identify whether the guaranteed hours should be calculated using mean or median average hours worked during a reference period.
• There will be no duty to offer guaranteed hours to a worker who is engaged under a limited term contract that is shorter than the reference period, provided that the limited term is reasonable, e.g. for a temporary need. The consultation seeks views on what could amount to a “temporary need” which is not related to a specific task or event.
• Finally, the consultation seeks feedback on whether employers should have exemptions from the right to offer guaranteed hours in limited circumstances and whether any worker groups should be excluded from this right.

Payment for shifts cancelled, moved or curtailed on short notice

• The UK Government is seeking to consult on the length of “short notice,” which cannot be more than seven days, and is also considering introducing a “very short notice” period which would require a higher payment (compared to a short notice) from employers.
• It is also being considered whether short-notice payments should be based on a percentage of expected earnings or by another metric, such as National Minimum Wage or National Living Wage. The consultation also seeks views on whether any exceptions to such payments should apply, such as an uncontrollable event, e.g. a loss of power in the building, with the employer being required in this case to give written notice to the worker.
• Further, the consultation seeks views on whether the right to short notice payments should be enforceable by the Fair Work Agency (in addition to the Employment Tribunals) which could require employers to make payments and pay a penalty to the UK Government. It has been suggested by the UK Government that such penalty could be 50% of the arrears owed, including a minimum and maximum threshold per worker.

Reasonable notice of shifts

• The UK Government is seeking views on what should amount to reasonable notice. For workers who are engaged directly, this could be between one and four weeks (or an alternative proposal), and for agency workers, this could be five days or less.
• The consultation also asks when a worker should be given longer notice and when shorter notice might be acceptable (for example, due to a last-minute change in staffing capacity).

Key takeaway for employers:

Employers who regularly use zero-hour staff (e.g., seasonal workers) should prepare for the impending changes to zero-hour contracts / low-hour workers. There will be a greater focus in this area and the changes could lead to substantial financial consequences for employers, such as in relation to short notice payments and penalties for failure to make such payments.

The Data (Use and Access) Act 2025

The Data (Use and Access) Act 2025 (the Act) became law on 19 June 2026.

The Act enhances the rights of data subjects under the existing UK data protection legal framework. The UK Information Commissioner’s Office (ICO) has published guidance on the changes brought into effect through this new legislation.

The key takeaway for employers is that data controllers (including employers) now need to follow a formal and structured process in dealing with complaints raised by a data subject, which is intended to reduce the burden on the ICO’s complaints handling process.

Data controllers are required to:

• provide an accessible way in which a data subject can submit a complaint that their personal data has been processed in a manner which is non-compliant with UK data protection law;
• acknowledge complaints within 30 days and take appropriate steps to investigate the complaint without undue delay;
• keep complainants informed about the progress and outcome of their complaint without undue delay;
• maintain suitable records regarding the resolution of the complaint; and
• state in their internal privacy notice that individuals have a right to complain to the data controller (as well as to the ICO).

In relation to subject access requests, the Act makes it clear that data controllers only need to make reasonable and proportionate searches in response to a subject access request.

We will be issuing a separate alert regarding the Act and its implications for data controllers (including employers) in due course which will provide further detail on the changes and the recommended steps that data controllers should take to ensure compliance with the updated requirements.