Employment tribunal and court judgments | May 2026

The Claimant was offered a project manager role. The offer letter stated that the offer was “subject to” receipt of satisfactory references, a right to work check, and a successful six-month probation period which would commence on the start date. The Claimant accepted the job offer. The employer later withdrew it due to project delays and the Claimant brought a breach of contract claim.

The ET found that there was no contract between the parties because the two conditions of receipt of satisfactory references and the right to work checks had not been completed. The Claimant appealed to the EAT.

The EAT held that a binding contract had been formed on the Claimant’s acceptance of the job offer. It found that the “subject to” items were conditions subsequent, meaning the contract was operative but could be terminated if the conditions were not met (rather than conditions precedent, meaning the contract was prevented from arising until the conditions were fulfilled).

Key reasons for the EAT’s decision included:

• the offer letter included all key terms (i.e. start date, salary, role, hours etc.);
• probation could only be satisfied after employment began, and there was no attempt to differentiate it from the other conditions as conditions precedent or conditions subsequent; and
• other documents provided at the time of the offer letter said employment could be terminated without the provision of satisfactory references, implying that a contract already existed.

The offer letter did not include a notice period. The EAT confirmed that an implied “reasonable” notice period depends on the circumstances and may exceed statutory minimums. On the facts (including the seniority of the role, the Claimant travelling to a different country to take up the post, and the duration of the interview process), the EAT implied a three-month notice period which the employer was required to pay in damages.

• If you do not want a job offer to create a binding contract until certain conditions are met, this must be clearly stated. This includes (i) structuring conditions as conditions precedent; (ii) avoiding bundling conditions precedent with conditions subsequent (such as probation periods); and (iii) ensuring that all documents provided at the time of the job offer are consistent.
• Where a candidate accepts a job offer and subsequently incurs meaningful commitments (such as relocation or tenancy), be aware that this may increase the duration of an implied notice period. Where the full contract is provided after acceptance, best practice is to set out the notice provisions (including during probation) in the offer letter to reduce this risk.

The Claimants worked for a manufacturing business with around 51 staff. The business entered administration on 2 May 2023 and, on the same day, 15 employees were dismissed as redundant. Three days later, when the last prospective buyer withdrew, most of the remaining workforce was dismissed. Several employees pursued protective award claims for the employer’s failure to collectively consult on the redundancies.

The ET awarded a protective award to those dismissed on 5 May but not to those dismissed on 2 May (including the Claimants). This was on the basis that only 15 dismissals were “proposed” on 2 May, so the duty to collectively consult was not triggered. The Claimants appealed.

The EAT allowed the appeal and substituted a finding that the Claimants were entitled to a protective award for a protected period of 90 days.

The EAT held that the correct legal question is whether, at the relevant time, the employer was “proposing to dismiss” 20 or more employees as redundant within a period of 90 days, including current and ongoing consideration of future events, albeit events which are not certain (not simply whether or not there was a fixed certain proposal at a point in time).

The EAT found that on the date of the appointment of the administrators, unless the business could be sold to one remaining prospective purchaser, or part of it could be sold to the prospective purchaser, the business would be wound up and closed. In these circumstances, it was likely that there was a “fixed, clear, albeit provisional intention to close that business”, which was sufficient to trigger the collective consultation duty.

Further, the likelihood of a sale was directly relevant to whether further redundancies were being proposed. The administrators’ own reporting showed that, by 2 May, a going-concern sale was not realistically achievable and winding up had become the operative objective.

• While the duty to consult will not arise where closure of a business is merely mooted as a possibility, it will be triggered where there is a clear, albeit provisional, intention that redundancies at scale are contemplated. Employers should look forward across the full 90-day window and assess how realistic the alternative options are.
• Practical step: where a business is in financial distress and redundancies may reach the threshold, build collective consultation into contingency planning early, rather than waiting for certainty.
• In insolvency scenarios, documentation matters: administrators’ reports, board papers, and sale process evidence can be critical in showing what was realistically achievable and the operative objective.

Thousands of Tesco store (mostly female) employees brought equal pay claims seeking parity with higher-paid roles in Tesco distribution centres (mostly worked by male employees). The claims are “equal value” claims under the Equality Act 2010, requiring an assessment of whether the jobs were equal in terms of their demands (e.g. effort, skill and decision-making).

At the “Stage 2” equal value hearing, the ET had to determine what the different roles involved, so that an independent expert could then assess whether the roles were of equal value. The parties produced extremely detailed job descriptions and extensive records of disputed points, resulting in a large number of narrow factual issues for the ET to resolve.

Given the volume of the disputes and due to the roles being carried out in a highly standardised way, the ET treated Tesco’s training and operational materials as the best starting point for identifying the “work” required by the roles, rather than relying primarily on the competing “job descriptions”  of what each party said the employees did in practice.

Tesco submitted two appeals in the EAT, which culminated in Tesco’s appeal to the Court of Appeal, with the most important point of the appeal concerning the approach taken by the ET to identifying the “work” required by the roles, and the meaning of “work” under sections 64 and 65 of the Equality Act 2010.

The Court of Appeal largely upheld the ET’s approach. It endorsed the analysis that, for equal pay purposes, “work” is concerned with the “wage-work bargain” i.e. what the employer requires the employee to do in the job. Importantly, it rejected the proposition that the only thing that matters in an equal pay claim was what an employee does in practice, rather than what their employment contract required them to do.

The Court also held that, in a highly prescribed environment, contemporaneous training and operational documentation can provide an objective baseline for what the job entails (while remaining open to cogent evidence that the practice differed).

In a concurring judgment, Sir Nicholas Underhill criticised the tendency in equal pay claims for parties to create “hyper‑granular” pleadings and dispute generation, warning that this was inconsistent with the overriding objective and risks making the process unmanageable for tribunals and independent experts.

• This equal pay claim against Tesco commenced in 2018 and remains a long way off a final decision. Employers can mitigate the risk of such claims by reviewing their pay structures, scrutinising the reasons for any pay disparities, and addressing any unjustified differences.
• Employers facing (or seeking to reduce risk of) equal pay litigation should ensure that job descriptions and contemporaneous materials (such as training materials, manuals and Standard Operating Procedures) are clearly documented, up-to-date and consistently applied in practice. Consider how these documents may be read as evidence of the job’s “demands” in an equal value assessment, particularly for standardised roles.
• Both employers and employees should expect Tribunals to push back against overly fact heavy disputes which hinder the efficient resolution of mass equal pay claims.

The Claimant was a school cleaner/caretaker employed since 2007. Over the years, he received repeated written instructions about maintaining professional boundaries with pupils. Following performance concerns and a live written warning (which noted he was awaiting an ADHD assessment), he accepted a lift to McDonald’s from three 18-year‑old sixth form students during his lunch break. The school treated this as serious misconduct for repeated failure to follow legitimate management instructions and to comply with school safeguarding policies and procedures. He was dismissed with notice. The Claimant claimed that he was unfairly dismissed.

The ET found the dismissal was unfair. While it accepted the school had reasonable grounds to believe misconduct occurred, it found the investigation fell short because the school did not obtain up-to-date medical/occupational health input or properly consider whether medical/neurodiversity factors contributed to his judgement and whether support could have mitigated future risk. The ET also criticised the school’s assumptions of the Claimant’s needs and found that the school’s instructions and communications to the Claimant had not been clear and explicit in context.

Further, the ET considered the incident a one-off, brief and unplanned event involving adult pupils, with no complaints; the conduct was treated as serious (not gross) misconduct; the Claimant had sixteen years’ service; and prior concerns had been relied upon without having been formally progressed or accompanied by a clear “next time = dismissal” warning.

• Where medical factors may be relevant to alleged misconduct, employers should examine these as part of the investigation, including whether treatment or reasonable adjustments could prevent similar issues in the future.
• Employers should not assume that they have sufficient knowledge and expertise to assess medical conditions without appropriate clinical/occupational health input, including on adjustments and support.
• If employers wish to rely on previous misconduct during a disciplinary process, it should have been addressed formally, with clear warnings regarding future misconduct.