Employment Law Bulletin: July 2026

Welcome

Electronic and workplace balloting: what employers need to know

The Government has published its response to consultation on electronic and workplace balloting for statutory trade union ballots, alongside a draft Code of Practice, setting out how workplace ballots could operate in practice.

The changes form part of the Government's wider programme of trade union reform and, if implemented, will introduce new options for unions conducting statutory union ballots. Importantly, it will be for the trade union – not the employer – to decide whether to conduct a ballot electronically, by post, or, where agreement can be reached, in the workplace.

For employers, the most significant development is the proposed framework for workplace balloting. While workplace voting will only be permitted with employer consent, the draft Code places considerable emphasis on both parties approaching any request constructively. The Code suggests that employers should consider the impact on the wider employment relations climate before rejecting a request, and should approach any request with an open mind. Where consent is refused, employers are expected to explain their reasons clearly to the union.

Employers should note that they are not required to bear the costs of a workplace ballot. However, agreeing to a workplace ballot could create a number of practical and legal considerations that will need to be carefully managed.

Before any workplace ballot can take place, the employer and union must enter into a written "voluntary access agreement". This agreement must set out key operational details, including the ballot location, access arrangements for the independent scrutineer, voting times, operating hours and emergency access provisions. It must also contain commitments by the employer not to unreasonably prevent eligible workers from voting, not to monitor the voting location, and to cooperate with both the union and scrutineer in conducting the ballot.

The draft Code also requires the agreement to address the consequences of any breach by the employer, including responsibility for resulting costs and the status of votes cast if a breach prevents the ballot from being completed. While the Code suggests that equivalent provisions should be included for union breaches, the detail of these arrangements is likely to become an important point of negotiation between the parties.

Employers considering a request for workplace balloting should therefore be prepared for potentially detailed discussions around access, operational disruption, confidentiality, security and liability. The requirement to document these arrangements in advance may help reduce disputes, but it also creates another area where legal advice is likely to be required.

The draft Code is due to come into force in August 2026. Employers should start considering now how they would respond to requests for workplace balloting, and whether internal policies or industrial relations strategies need to be updated in anticipation of the new regime.

Justifying indirect discrimination: lessons from Dobson v North Cumbria Integrated Care NHS Foundation Trust

The Equality Act 2010 is the primary legislative framework covering discrimination in employment. In terms of the protected characteristic of sex, several different forms of discrimination are recognised. One of these is indirect discrimination. If an employer operates a provision, criterion, or practice (PCP) which places those of a certain sex at a particular disadvantage when compared with others, this will be discriminatory unless the employer can justify the PCP as a proportionate means of achieving a legitimate aim.

Indirect sex discrimination cases often focus on the ‘disadvantage’ which women are placed at in the workplace by virtue of bearing the majority of the childcare burden. This can mean that employer requirements for flexibility are harder for them to meet than men. Tribunals accept, without the need for recourse to statistical evidence, that a ‘childcare disparity’ exists, and take judicial notice of this fact. However, this does not mean that employers are unable to demand flexibility from female members of their workforce. It is all a matter of whether the requirement for flexibility can be objectively justified.

In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal took a closer look at indirect sex discrimination and justification. Mrs Dobson was employed as a nurse. She worked on Wednesdays and Thursdays. The Trust, wanting more flexibility from its workforce, introduced a requirement that all nurses work occasional Saturdays. Mrs Dobson objected on the basis that, as she had three children, this requirement amounted to indirect sex discrimination.

The EAT held that a requirement to work occasional Saturdays had a disproportionate impact on women as a group owing to the childcare disadvantage. It also held that Mrs Dobson suffered an individual disadvantage. However, her indirect sex discrimination claim failed. The EAT held that the requirement to work occasional Saturdays was justified by the Trust as a proportionate means of achieving a legitimate aim. 

The EAT considered four practical points on justification in indirect discrimination cases:

• Individual and group disadvantage both matter. When assessing justification, tribunals must consider the disadvantage suffered by the affected group, but may also take account of the impact on the individual claimant. Looking at the claimant's personal circumstances does not undermine the analysis, provided the wider group disadvantage is also considered.

• Employers are not required to conduct extensive monitoring. While employers should be aware of the impact of their policies, there is no legal obligation to undertake detailed monitoring or forensic analysis of how a PCP affects every protected group. Tribunals should not expect employers to produce evidence that it would be unreasonable to obtain.

• The absence of alternatives can be relevant. Although claimants are not required to suggest less discriminatory alternatives, a tribunal may take into account whether any alternatives were proposed, particularly where the employer has sought to explore possible compromises. This may be relevant when assessing proportionality.

• Flexibility within a PCP can support justification. Where a policy allows some scope for accommodation or compromise without undermining the employer's legitimate aim, tribunals may take that flexibility into account when assessing proportionality. 

Bonus schemes: Why HR can't move the goalposts after the event

A recent Employment Appeal Tribunal decision serves as a useful reminder that even discretionary bonus arrangements can create enforceable contractual rights once discretion has been exercised.
 
In Chandrashekarappa v Wipro, an employee was told he could receive a discretionary "kitty bonus" of up to 1% of revenues from new business, subject to approval from the relevant sector lead. After he secured a major contract, the sector lead approved the full 1% bonus. However, before payment was made, the employer introduced additional approval requirements and a bonus cap, reducing the award significantly.

The Employment Appeal Tribunal held that this amounted to an unlawful deduction from wages. Once the sector lead had exercised their discretion in accordance with the scheme as communicated to staff, the employee's entitlement had crystallised. The employer could not retrospectively impose new conditions or limits that were not part of the original arrangement.

For HR teams, the key lesson is that using the word "discretionary" does not mean that the goalposts can be moved at any time up to payment. While employers may retain discretion over whether to make an award, once that discretion has been exercised, and the employee's entitlement has been determined, a contractual right to payment may arise.

The case also highlights the importance of understanding when contractual obligations are formed. Employers should ensure that bonus schemes clearly set out all approval processes, conditions and caps from the outset. If additional approvals are required, these should be communicated before any decision is made, not after.

When reviewing incentive arrangements, HR should check that scheme documentation accurately reflects how decisions are made in practice. Attempting to change the rules after an employee has met the relevant criteria risks not only employee relations issues, but also claims for unlawful deductions from wages.

When is expressing a view a manifestation of a protected belief?

The law on religion and belief discrimination protects employees not only from less favourable treatment because of a protected belief itself, but also because of the manifestation of that belief. However, not every opinion expressed by an employee will qualify as a manifestation of a protected belief.

The leading case of Eweida v British Airways established that there must be a sufficiently close connection, or ‘nexus’, between the belief and the manifestation. It does not have to be a requirement of the belief, but it must be closely linked to it.

This issue was considered by the Employment Appeal Tribunal in London Ambulance Service v Garrett.

Mr Garrett, a paramedic, was disciplined after stating during a workplace discussion that systemic racism does not exist. He argued that the disciplinary action amounted to discrimination because of his philosophical belief that all people should be treated equally regardless of race or culture.

The EAT disagreed. While a belief in equal treatment for all was capable of protection under the Equality Act 2010, Mr Garrett's comment that systemic racism did not exist was not a manifestation of that belief. There was not a sufficiently close nexus between the two. The tribunal noted that a person could genuinely believe that everyone should be treated equally, while also accepting that systemic racism does exist. As a result, Mr Garret’s comment did not attract protection as a manifestation of his protected belief.

For HR professionals, the decision is a useful reminder that the existence of a protected belief does not automatically protect every opinion or statement that an employee with that belief makes. When dealing with workplace complaints or disciplinary issues, employers should carefully consider whether the conduct in question is genuinely linked to the protected belief and whether that link is sufficiently close.

Carers' rights in the spotlight

The government has launched a consultation on strengthening employment rights for unpaid carers and parents of seriously ill children, signalling that carers' rights may remain firmly on the employment law agenda in the years ahead.

The consultation follows the introduction of the Carer's Leave Act 2023, which gave eligible employees the right to take up to one week of unpaid leave each year to provide or arrange care for a dependant with a long-term care need. However, the government is now seeking views on whether that entitlement goes far enough.

Three potential reforms are under consideration. The first is extending the current entitlement to unpaid carer's leave beyond one week per year. The second is introducing a statutory ‘right to return’, similar to protections available during maternity leave, for employees taking longer periods away from work because of caring responsibilities. The third, and perhaps most significant proposal, is the introduction of a period of paid carer's leave.

Alongside these proposals, the consultation also considers "Hugh's Law", which would provide leave and financial support for parents and caregivers immediately following the diagnosis of a serious illness in a child.

While no changes have yet been confirmed, the consultation reflects growing recognition of the challenges faced by employees who balance work with caring responsibilities. For many organisations, the practical impact of caring commitments is already being felt through issues such as absence, wellbeing, recruitment and retention.

For HR professionals, the consultation is worth watching closely. Any move towards longer or paid leave rights could have significant workforce planning and cost implications. More broadly, it may prompt employers to review whether their existing family-friendly and wellbeing policies provide sufficient support for carers, particularly at a time when an ageing population means more employees are likely to have caring responsibilities alongside their jobs.

The consultation closes on 1 September 2026.

Wrongful dismissal: why the circumstances behind misconduct can matter

Most HR professionals will be familiar with unfair dismissal claims, but wrongful dismissal is a different type of claim altogether. Whereas unfair dismissal focuses on the fairness of the employer's decision to dismiss, wrongful dismissal is a contractual claim that looks at whether the employer was entitled to terminate employment without notice.

Generally, an employee who is dismissed is entitled to receive their contractual or statutory notice pay. However, an employer can dismiss without notice where the employee has committed a repudiatory breach of contract – often referred to as gross misconduct. In those circumstances, the employer is entitled to treat the contract as at an end and does not have to make payments that would otherwise have been due during the notice period.

A recent Employment Appeal Tribunal (EAT) decision highlights the importance of considering the full circumstances when deciding whether an employee's conduct amounts to such a breach.

In XX v YY, an assistant head teacher sent a sexual message to someone she believed to be under 18. The employer accepted, however, that she had acted while in a coercive and controlling relationship and under extreme pressure, fearing serious harm to herself and her children if she did not comply with demands made of her.

When the matter later came to light, she was summarily dismissed. Her wrongful dismissal claim initially failed, with the tribunal finding that the pressure she was under was irrelevant when deciding whether her conduct amounted to a repudiatory breach of contract.

The EAT disagreed. It held that the correct question is whether the employee's conduct, viewed objectively and in all the circumstances, was serious enough to destroy the trust and confidence necessary for the employment relationship to continue. Those circumstances included the duress under which the employee had acted.

For HR professionals, the case is a reminder that conduct should not be assessed in isolation. Even where behaviour appears to amount to gross misconduct, employers should carefully consider any mitigating circumstances before concluding that summary dismissal – and the loss of notice pay – is justified.

Disability discrimination: when an employer may know more than it thinks

A recent Employment Appeal Tribunal decision provides a useful reminder that employers cannot always rely on the absence of a formal occupational health opinion when assessing whether an employee is disabled under the Equality Act 2010.

In Cunningham v BBC, the employee had type 2 diabetes which caused significant fatigue. The BBC was aware of her condition and had adjusted her shift pattern, although it continued to require her to work a late shift despite occupational health advice raising concerns about this. Following a disciplinary process linked to an error made during one of those shifts, the employee brought disability discrimination claims.

The key issue was whether the BBC knew, or ought reasonably to have known, that she was disabled. The tribunal initially found that it did not. However, the EAT disagreed, holding that the BBC had constructive knowledge of the disability.

Under the Equality Act 2010, an employer's obligations do not depend solely on a medical professional explicitly stating that an employee is disabled. The legal definition of disability is whether the employee has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Ultimately, this is a legal test rather than a medical one.

The concept of constructive knowledge is particularly important. An employer may be treated as knowing about a disability where it has enough information that should reasonably have prompted further enquiries. In Cunningham, the BBC knew about the employee's diabetes, understood the fatigue it caused, and had received occupational health advice referring to reasonable adjustments. That was enough to put it on notice.

Where there is evidence that a health condition is having a significant and ongoing impact on an employee, employers should consider whether the Equality Act may be engaged, and whether further investigation or workplace adjustments are required.

And Finally...

AI has chalked up what is being described as its first court victory – but before the robots start demanding silk gowns and chambers, it's worth looking a little closer.

The case involved Garfield AI, an AI-powered law firm, helping a freelancer successfully recover unpaid fees in court. AI carried out the heavy lifting before trial - preparing documents, witness statements and the court bundle. However, when it came to the hearing itself, a human barrister still took centre stage, presenting the case and advocating before the judge.

AI is becoming an increasingly common feature of workplace disputes and litigation. Employers may use AI to analyse documents or prepare evidence, while employees and their representatives are likely to be doing exactly the same. Garfield AI’s legal victory demonstrates that AI is able to take a supporting role in employment litigation, but human oversight, expertise, judgement and advocacy remain firmly in charge – at least for now.