Employment tribunal and court judgments | February 2026

In Alpha Anne & Others v Great Ormond Street Hospital NHS Foundation Trust [2026] EAT 15, the Claimants were a group of 80 cleaners of BAME background who transferred from OCS to Great Ormond Street Hospital (GOSH) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) on 1 August 2021. Post-transfer, they remained on their previous contractual terms, which were significantly less favourable than those of GOSH’s directly employed Band 2 staff on Agenda for Change terms. The discrepancies affected pay, sick pay, annual leave and pension benefits.

The Employment Tribunal held that GOSH could not be liable for any alleged discrimination occurring before the transfer, as the Equality Act 2010 does not transfer liability for pre‑transfer acts. However, the Tribunal found that once GOSH became the employer, its failure to improve terms for over a year created a continuing disparity in treatment. Because the affected employees were disproportionately from a racially diverse group, this amounted to indirect race discrimination.

The EAT upheld the Tribunal’s findings. It confirmed that:

• The relevant provision, criterion or practice was GOSH’s approach of keeping former OCS cleaners on inferior legacy terms while comparable in‑house staff enjoyed substantially better contractual benefits;
• The discriminatory impact did not require any discriminatory motive/intention. What mattered was the “group disadvantage” experienced by a “protected group” under the Equality Act 2010; and
• GOSH could not justify the disparity. Although GOSH had received legal advice confirming that contractual variation was possible, it did not take timely steps to act on it. Administrative delay, cost concerns, or general uncertainty were not accepted as legitimate or proportionate justifications.

The EAT emphasised that the same principles apply across all TUPE scenarios, including service provision changes and re‑tendering exercises

• Post‑TUPE disparities create legal risk: keeping employees who have transferred on less favourable terms can amount to indirect discrimination where those affected share a protected characteristic. Whilst changes to terms and conditions made because of a TUPE transfer are likely to be void, beneficial changes such as increasing pay are unlikely to be contentious;
• Intent is irrelevant: Liability can arise even without a discriminatory motive, what matters is the impact
• Justification is a high bar: Employers must show the disparity was necessary, time‑limited, and supported by a legitimate aim. Cost or delay alone will not suffice.
• Act promptly: If harmonisation or variation is legally possible, failing to act can create discrimination risk.
• Applies across sectors: The principles are not NHS‑specific and apply to any business transfer, outsourcing change or re‑

If you’d like a more detailed breakdown of this, and commercially savvy advice on next-steps please read our more detailed article here.

Ms Chand worked for EE as a Senior Customer Advisor for around 16 years with a clean disciplinary record. In 2022, she was accused of four separate incidents involving customer accounts. EE treated each incident as fraudulent behaviour and dismissed her for gross misconduct. Chand accepted that mistakes had been made during a difficult period of caring responsibilities but denied any dishonest intent.

She brought an unfair dismissal claim, arguing that the decision was based on an unreasonable interpretation of the facts, and that no proper basis existed for concluding she had acted fraudulently.

The Employment Tribunal accepted that there were breaches of procedure and policy across the four events, but it held that EE did not have reasonable grounds for believing any of the incidents involved fraud. Nonetheless, the Tribunal found the dismissal fair on the basis that one incident amounted to a serious policy breach capable of justifying dismissal. However, the Tribunal did not make a finding that the policy breach was the sole or principal reason for dismissal.

The Claimant appealed the decision.

The EAT overturned the Tribunal’s ruling and held that the dismissal was unfair and underlined the importance of the Tribunal examining the employer’s “actual” reason for dismissal instead of replacing the employer’s rationale with its own.

The EAT emphasised:

• The true “reason for dismissal” is what the decision‑maker actually relied on – not what they might have relied upon in different circumstances;
• Once the Tribunal concluded that EE had no reasonable grounds for believing any of the allegations were fraudulent, the whole foundation of the dismissal collapsed; and
• The Tribunal wrongly focused on hypothetical reasoning, i.e., that the dismissal was due to a serious breach of policy rather than the manager’s actual findings. This approach was legally incorrect.

As a result, the only lawful conclusion was that the dismissal was unfair. The EAT substituted that finding and sent the case back to the Tribunal solely to determine the remedy.

The EAT decision confirms that tribunals should focus on what the decision‑maker genuinely concluded at the time and the reasonableness of their conclusion, rather than what they “could” have concluded. It’s therefore crucial that employers can show they had reasonable grounds to believe that the employee committed the misconduct and that this was the actual reason for their dismissal.

Ms Farah Janjua joined Harvey Jones Ltd in July 2022 as a Sales Designer and was dismissed in December the same year after not passing her probation. She brought claims of age, race and sex discrimination, as well as harassment and victimisation, arguing that her dismissal and various workplace interactions were unlawfully discriminatory. One of her central complaints concerned an incident with a younger colleague, who, while showing her how to add an attachment to a document, responded “coz you’re old” when she said she did not know the function existed. She also alleged that a manager reacted negatively when hearing her age.

The Tribunal accepted that the remark about age was made, but it concluded that it did not amount to unlawful discrimination. It found that the colleague, who was in his late 20s, would likely have made the same comment to anyone older than him, and that his behaviour was more reflective of asserting authority than targeting her because she was 39. The Tribunal also found that her broader recollection of events was unreliable and that the remaining allegations lacked evidential support or connection to protected characteristics. Her dismissal was found to stem from performance concerns rather than discriminatory motivation, and all claims were dismissed.

A flippant or ill‑judged remark referencing age may not necessarily constitute unlawful discrimination. However, this does not give employees free reign and it is right to regularly remind them of the appropriateness of comments in the workplace as part of your DEI initiatives.

This case also reinforces that tribunals place considerable weight on the credibility of the evidence and will not infer discrimination without a clear evidential link to a protected characteristic.

The decision also underlines that dismissing someone during probation for performance reasons is lawful, provided the employer has a genuine, non‑discriminatory reason and follows a fair process. This will become even more important when the qualifying period for protection from unfair dismissal protection reduces to six months (as of January 2027) – meaning employers will need to be even more disciplined about documenting concerns, holding reviews, and making well‑reasoned decisions.