(Excluding the Employment Rights Bill which we reported on separately)

Third-party “inducing” discrimination (Equality Act s111)

In Bailey v Stonewall, the Court of Appeal confirmed that Stonewall was not liable for “causing or inducing” Garden Court Chambers’ discriminatory treatment of a barrister with gender-critical beliefs. The Court said the claimant must show (1) the discrimination would not have happened but for the third party’s intervention, and (2) it is fair/just/reasonable to attribute responsibility to that third party. A complaint can be the “occasion” for events, without making the complainant legally responsible for the discriminatory outcome.

Harassment is a serious offence

The Telegraph has reported that a Metropolitan Police call centre manager was found guilty of harassment in the criminal courts after targeting a colleague with unwanted gifts and messages. This is a rare case where workplace harassment strayed into criminal conduct. The manager was handed an 18-month community order and a two-year restraining order. Some of his harassing acts were eyebrow raising to say the least, including gifting a signed photo of the rock band Queen and expensive perfume, claiming to be Ronan Keating’s cousin, and posing as Ronan himself in messages sent to his victim.

Constructive dismissal

Constructive dismissal occurs when an employee resigns in response to their employer's conduct. One of the key requirements for constructive dismissal is that the employee must not have affirmed the employment contract and accepted the breach before resigning.

In the recent Employment Appeal Tribunal case of Barry v Upper Thames Medical Group. Dr Barry was told by the Trust that she would not be paid sick pay. This was a breach of her employment contract. Six months later, she resigned. She claimed constructive dismissal, relying on this breach. The Employment Appeal Tribunal did not agree that a six month delay in this case meant that there had been affirmation of the breach.

Recruitment and health questions

Remember: don’t ask pre-offer health questions (with limited exceptions, e.g. to support interview adjustments or test an intrinsic job requirement). AECOM v Mallon is a useful reminder that employers need to be very careful if, on receipt of medical information, they decide to withdraw the job offer. If a health issue comes to light at this stage, before making any knee-jerk decision, employers should consider whether the health issue impacts on the person’s ability to do their role. The employer should also explore and document any adjustments which might be able to be made to the role to enable them to do it. The duty to make reasonable adjustments is in play and, if you withdraw the offer without first investigating whether any adjustments are available, the employer is at high risk of a claim being made.

Biometrics at work (high GDPR risk)

Fingerprints and facial recognition involve special category data. The ICO’s action against Serco Leisure shows the regulator expects clear necessity, a DPIA, and consideration of less intrusive alternatives (like cards/fobs). If staff can’t opt out without detriment, “consent” is rarely safe in employment.

Non-competes under review

Government has published a working paper on reforming non-competes (options include a cap of potentially three months and limits for certain workers, or a ban). Consultation closes 18 February 2026. Employers should review restrictive covenants, confidentiality wording, and consider garden leave/notice strategy for key roles.

Practical absence management

Recent tribunal commentary is a sharp reminder that insensitive sickness handling (tone, meeting set-up, and “you’ve let people down” messaging) can tip into disability-related harassment and significant awards.

In the employment tribunal case of Robinson v Middlesex Learning Trust, a teacher received almost £140,000 compensation after her employer failed to take a sensitive approach to her sickness absence.

Drafting a discretionary Bonus Scheme

Discretionary bonus schemes can be a valuable tool for recognising performance and driving engagement, but they also present legal and practical risks if not carefully drafted. Employers need to strike a balance between retaining flexibility and providing enough clarity to avoid disputes over fairness, eligibility or entitlement. Common questions to consider include the extent of any discretion, eligibility requirements, wider circumstances where a bonus may be withheld, clarity over terms like the bonus year and clawback provisions.