Key employment law cases to watch out for in 2026
To prepare you for the year ahead, we've highlighted the cases expected to shape employment law and influence HR policies and practices over the next 12 months or so.
These cover:
- Conflict of belief and freedom of expression
- Harassment
- Single sex provisions in the Equality Act 2010
- Whistleblowing
- Employment status: employee, worker or self-employed?
- Neurodiversity
Conflict of belief and freedom of expression
Last year the Court of Appeal in Higgs v Farmor's School laid down principles that employers need to consider when dealing with conflicts of belief in the workplace. Robust speech is protected as a manifestation of a religious or philosophical belief and employers should only take action for something an employee has said if it is objectionably inappropriate. And that's a high threshold.
A number of cases are going through the appeal process dealing with this conflict.
Corby v Advisory, Conciliation and Arbitration Service
Mr Corby, a conciliator at Acas, expressed his opposition to critical race theory (an academic concept which believes that racism is something that is embedded in legal systems and policies and is not just the produce of individual bias or prejudice). He advocated for a society where individuals are judged by their character, rather than their skin colour.
When Acas asked Mr Corby to delete a number of his posts on its internal social network which expressed his views on race and racism, he issued a claim, arguing that Acas had discriminated against him because of his protected beliefs.
The tribunal found that Mr Corby's beliefs were genuinely held, related to a substantial aspect of human life or behaviour, and were deeply held and carefully considered, affecting his way of life. His beliefs were consistent, logical, and structured, making them cogent and coherent. The tribunal concluded that his beliefs were worthy of respect in a democratic society and did not conflict with human dignity or the rights of others and were protected as a philosophical belief.
However, the tribunal went on to find that Mr Corby had not been subject to direct discrimination or harassment because of those beliefs. Mr Corby has appealed that decision. The EAT held a preliminary hearing on 4 September 2025, and we expect the substantive hearing to take place this year.
Miller v University of Bristol
Dr Miller is a professor of political sociology. He believes that Zionism is inherently racist, imperialist and colonial and expressed those views to his students, some of whom complained that his views were antisemitic. The university concluded that his views weren't antisemitic but he had breached its Acceptable Behaviour At Work Policy and dismissed him.
He brought a claim in the tribunal arguing that his beliefs were protected and his dismissal for expressing those beliefs was unfair and amounted to direct discrimination.
The tribunal agreed that Dr Miller's beliefs were protected and that his dismissal was both discriminatory and unfair. The university had a legitimate aim (to ensure that there was no discrimination) but the steps it had taken to enforce this were disproportionate; it should have considered imposing a lesser sanction against him (such as a written warning).
The decision has been appealed, and was heard by the EAT on 12 November 2025. We expect the outcome shortly.
Mr Lister was a teacher with gender critical beliefs, including the belief that sex is binary and immutable and should not be confused with gender identity. When one of his students asked to be known by a male name and to be addressed using male pronouns, Mr Lister adopted what he referred to as a gender-neutral communication style which involved gesturing towards the student when asking questions. Mr Lister described transitioning as “irreversible” and voiced his opinion that “taking testosterone is likely to cause long-term medical problems and [they] would be reliant on the NHS, and the services could not be guaranteed for the future.”
During the disciplinary process Mr Lister said that he would not use the student's preferred name and there was no obligation on him to do so. He was dismissed for engaging in “emotionally manipulative behaviour” towards the student which put them at risk of emotional harm, and because he had failed to follow the college's Gender Reassignment Policy.
Mr Lister brought proceedings against the college, arguing that he had been treated unfavourably because of his gender critical beliefs and/or the way that he had manifested them. The tribunal accepted that his beliefs were protected philosophical beliefs but decided that his dismissal was a proportionate response to the way in which he had expressed them.
Mr Lister has appealed to the EAT and a preliminary hearing took place on 29 May 2025. We expect the substantive hearing to go ahead this year.
Why do these belief cases matter?
Some employers still erroneously believe that their staff can hold protected beliefs but can't express them if their views don't align with organisational values or could offend other members of staff. Others appear to believe there is a hierarchy of protected characteristics and prioritise certain ones over others, possibly because of poor DEI training or allegiance to particular workplace schemes.
Whilst each case is determined on its own facts (including the vulnerability of the audience in question), these cases build up a picture which other employers can learn from.
Harassment
Staff networks and external speakers: are employers liable if what they say harasses an employee?
Newman v Commissioner of Police of the Metropolis
Ms Newman attended a trans day of visibility hosted by her employer. It was expressed to be inclusive and was open to anyone who wanted to learn about 'trans experiences'.
An external speaker made a number of statements Ms Newman found offensive including sharing their views that people with gender-critical views displayed “cult like behaviour” had “twisted and warped views” and were motivated by hate. Senior officers attended the event but did not intervene.
The Met refused to investigate Ms Newman's concerns because they were about a third party. Ms Newman brought proceedings against the Met for direct discrimination and harassment on the grounds of her gender critical views.
The tribunal dismissed her complaints. In respect of her harassment claim, it accepted that Ms Newman had been upset and disturbed by what she had heard, but said it was not reasonable for her to feel that way because she knew the speaker was partisan, the speaker had the right to express views that are potentially shocking or offensive, and delegates had the right to hear those views.
Ms Newman has appealed to the EAT and we await details of when the hearing will take place.
Why does this case matter?
Many organisations give their staff networks free rein to organise events and invite external guests to speak at them. In October 2026, new rules come into force which will make employers responsible where a third-party harasses a member of staff in the course of their employment.
Employers won't be able to escape liability unless they have taken all reasonable steps to prevent it. That's likely to be difficult to establish unless the employer has undertaken due diligence to ensure that the speaker is qualified to talk on the subject matter, understands the law and is not likely to go off piste and say something that could land it in hot water. They also need to be able to properly deal with challenging questions and differences of opinion.
Single sex exceptions in the Equality Act 2010
Can employers allow trans employees to use opposite sex changing rooms and toilets?
Last year the Supreme Court held that sex in the Equality Act means biological sex and is unaffected by a gender recognition certificate. Two employment tribunal decisions were handed down in 2025, one relating to separate sex workplace changing rooms, and the other to toilets. A third is expected soon. These are the first cases to grapple with the Supreme Court's judgment in the context of employment.
Peggie v Fife Health Board (1) and Upton (2)
A nurse, Ms Peggie objected to Dr Upton, a biological male who identified as a woman, using the female changing room. She was told Dr Upton had the right to use the female changing room.
On Christmas Eve she experienced heavy menstrual bleeding and went into the changing room to change into a clean uniform. Dr Upton was also there. Ms Peggie confronted Dr Upton, asked about their chromosomes and explained she was intimidated and couldn't change in front of men because she had a “bad history with men" (she had been sexually assaulted as a teenager). She also said that women have a right to feel safe and referred to a convicted male rapist who had been housed in the female prison estate.
Dr Upton told Ms Peggie they had permission to use the changing room and said that she should raise the issue through the appropriate procedures if she was unhappy.
She issued proceedings in an employment tribunal, alleging that the trust's policy directly and indirectly discriminated against her as a woman, and also amounted to unlawful harassment on the basis of her sex.
The tribunal held that Ms Peggie had been harassed from the time she complained about Dr Upton to the point at which the hospital put in place a new rota which meant that there was no possibility that the two would encounter each other in the female changing room (a period of around seven months). It dismissed her other complaints.
Ms Peggie has said that she intends to appeal against this decision. It's possible that the EAT will hear that appeal in 2026.
Ms Kelly objected to her employer's policy which allowed trans women to use female toilets.
She brought a claim in the Employment Tribunal, arguing that this policy harassed her on the basis of her sex, constituted direct and indirect sex discrimination and breached her rights under Article 8 to privacy. She argued that her employer had breached the Workplace (Health, Safety and Welfare) Regulations 1992 which require employers to provide single sex facilities for men and women, and that these terms should be interpreted in line with the Supreme Court's judgment in FWS to mean biological sex.
The tribunal dismissed her claims, and Ms Kelly has said she intends to appeal.
Hutchison and others v Darlington NHS Foundation Trust
Twenty-sex nurses objected to a male colleague who identified as a woman, using the female changing room. They allege that HR informed them that trans women could use the female facilities and advised them to “broaden their mindset” and “be educated”.
Eight of the nurses brought proceedings against the hospital arguing that the trust's policy harassed them and amounted to direct and indirect sex discrimination.
The hearing took place in November 2025 and we expect the judgment soon. Whatever the outcome, it will only bind the parties. It will not create a precedent and does not have to be followed by any other tribunal or organisation.
Why these cases matter
There are a number of sex based exceptions set out in the Equality Act. Those that directly relate to single/separate sex facilities, such as toilets and changing rooms, are set out Schedule 3, Part 7. These provisions apply to service providers providing facilities to customers or clients (although, in practice, these are often also used by members of staff).
Instead employers have to comply with the Workplace (Health, Safety and Welfare) Regulations 1992 which stipulate that:
- separate toilet facilities are available to men and women unless each toilet is in a separate room with a lockable door (which should be floor to ceiling); and
- changing rooms provided to enable employees to change into and out of their work clothes are segregated by sex.
If the reference to men and women in these regulations relates to biological sex, employers will need to ensure their policies comply with this.
Whistleblowing
Can dismissing an employee for making a protected disclosure constitute a detriment?
Rice v Wicked Vision Limited and Barton Turns Developments Limited v Treadwell
Mr Rice was made redundant and claimed that he had been selected, by the owner of Wicked Vision Ltd, because he had made protected disclosures. He argued that this made his dismissal utomatically unfair. He later sought to bring a detriment claim, alleging four detriments, one of which was his dismissal. The tribunal granted his application to amend his claim, but on appeal, the EAT ruled that dismissal cannot be relied upon as a detriment because of the clear wording of the legislation.
A similar situation arose in another case involving Ms Treadwell. She claimed automatic unfair dismissal on the basis that she had been dismissed for making a protected disclosure. When she sought to also bring a detriment claim, relying on her dismissal as a detriment, the tribunal refused. However, the EAT allowed her appeal, holding that it was bound by previous case law to add dismissal to the list of detriments.
The EAT therefore reached different conclusions in each case, leaving two conflicting decisions for the Court of Appeal to consider.
The Court of Appeal explained that the legislation is clear and unambiguous: an employee cannot bring a detriment claim based on their dismissal for making a protected disclosure. Protection in these circumstances is covered by s.103A Employment Rights Act 1996 via a claim for automatic unfair dismissal. However, applying the doctrine of precedent, it concluded that it was bound by its earlier decision in Timis & Anor v Osiprov & Anor.
As a result, an employee may bring a claim against a co-worker involved in the dismissal and argue they their dismissal for making a protected disclosure amounts to a detriment. They can also argue their employer is vicariously liable for the actions of the decision maker, in addition to arguing their dismissal is automatically unfair.
Permission to appeal to the Supreme Court has been granted, although the hearing date is yet to be confirmed.
Why does this matter?
There's been a long-running debate about whether dismissing someone for making a protected disclosure amounts to a detriment. The distinction between detriment and dismissal claims is significant because different legal provisions apply. It’s much easier to establish a detriment claim because all that’s required is for the worker to show that their protected disclosure materially influenced their treatment. Whereas, if the employee has been dismissed they have to show that the sole or principal reason for their dismissal is their protected disclosure.
If the Supreme Court decides that an employee can't bring a dismissal claim as a detriment, it will be much harder for them to succeed because they will have to establish that the reason, or principle reason for their dismissal, was because they made a protected disclosure.
Employment status: employee, worker or self-employed?
Are volunteers workers with employment rights?
Groom v Maritime and Coastguard Agency
Back in 2013, the Supreme Court in X v Mid Sussex Citizens Advice Bureau held that UK discrimination legislation did not protect volunteers, nor was the UK required to protect them under the European Framework Directive. Accordingly, volunteers are only protected if they are, in fact, workers.
Mr Groom worked as a volunteer coastal rescue officer for over 20 years. He had a volunteer handbook which indicated that members of the Coastguard Service were entirely voluntary but had to follow a code of conduct. Volunteers were allowed to submit claims and receive payment for certain activities to cover minor costs they had incurred and to compensate them for disruption to their personal life and unsocial hours.
Mr Groom was accused of misconduct and following a disciplinary hearing, his membership of the Coastguard Service was terminated with immediate effect. He was issued with a P45.
He argued that he was a worker and should have been given the opportunity to be accompanied at the disciplinary hearing.
The tribunal decided that Mr Groom was not a worker because there was no contract between him and the Coastguard and the parties had a “genuinely voluntary relationship”. Mr Groom appealed.
The EAT said that the term volunteer is not a term of art. The key issue is whether there is a contract between the parties and, if so, what was the nature of that contract. In this case there was “plainly” a contract between Mr Groom and the Coastguard which included the right for Mr Groom to be paid. The fact that other volunteers didn't choose to submit claims was irrelevant. Mr Groom was a worker when he undertook activities for which he could be paid - but not necessarily when he was doing things that didn't attract payment.
This case has been appealed to the Court of Appeal and it went part heard on 20 November 2025.
Why does this matter?
Many organisations engage volunteers. Genuine volunteers don't have any employment rights even if they are reimbursed for expenses they have actually incurred.
The Court of Appeal may set out further guidance to help employers decide if their volunteer has morphed, perhaps over time, to a worker.
Must part-time worker status be the sole cause of less favourable treatment?
Mr Augustine, a part-time driver, paid a weekly ‘circuit’ fee (£148 a week for every driver) to access a booking system. He argued the fee constituted a larger proportion of his earnings compared to a full-time driver and therefore less favourable treatment due to his part-time status.
The Court of Appeal considered whether regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 means that a worker’s part-time status must be the sole cause of their less favourable treatment, or whether it has wider scope so that the treatment need not be exclusively because of their part-time status.
The Court of Appeal was bound by the earlier decision of the Inner House of the Court of Session (Scotland’s appeal court) in McMenemy v Capita Business Services Ltd and therefore held that the part-time status of a worker must be the sole cause of the less favourable treatment. As it wasn’t in this case, it dismissed Mr Augustine’s appeal.
However, the Court of Appeal expressed reservations about this interpretation. It has therefore granted leave for the case to be heard by the Supreme Court, and a hearing date is awaited.
Why does this case matter?
Currently, it remains the case that for a part-time worker to be successful in their discrimination claim, the tribunal has to determine that their part-time status was the sole cause of that less favourable treatment. But this may not stay the legal test for long. If the Supreme Court does overturn the decision, so that part-time status need not be the only cause of the less favourable treatment, it will be a much wider test and could lead to more successful discrimination claims.
Neurodiversity
Analysis carried out earlier this year by Irwin Mitchell, using data published by the Ministry of Justice, revealed a sharp rise in tribunal decisions citing ADHD. The number increased from just six in the first half of 2020 to 51 in the first half of 2025 - a 750% increase.
We have reported on many of these judgments throughout the year, including:
- Do you need to wait for a diagnosis before making reasonable adjustments for a neurodivergent employee?
- Should you adjust your disciplinary procedure for autistic employees?
- Reasonable adjustments and neurodiversity: how one employer got it right
- Does your onboarding process discriminate against neurodivergent employees?
- Does an ADHD diagnosis mean an employee is (rather than may be) disabled under the Equality Act 2010?
- Employee with ADHD dismissed for sending offensive messages: was it discrimination?
We are likely to see this upward trend continue into 2026. There is now a much greater general awareness of neurodiversity, both within workplaces and society generally. A growing number of individuals are, later in life, recognising traits of neurodivergence or receiving a formal diagnosis. As more cases are reported and discussed openly, employees are likely to be increasingly confident in asserting their rights under the Equality Act 2010 and asking for reasonable adjustments to be made to their work and to the policies that apply to them.
Why does this matter?
A worker doesn't need a formal diagnosis to establish the difficulties they encounter amount to a disability under the Equality Act 2010.
Employers need to ensure their managers are equipped to have sensitive conversations with staff to find out how their condition affects them, and where appropriate, know how to obtain additional support (such as from occupational health or other relevant professionals). This is important because employees who meet the legal definition of disability are protected from discrimination and have the right to reasonable adjustments. These adjustments help ensure they are not placed at a significant disadvantage compared to colleagues without disabilities.
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