Welcome to our round-up of 5 minute People and Workplace updates hand-picked to help HR teams.

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Unfair dismissal: clarification on contributory conduct relations

The Employment Appeal Tribunal (“EAT”) has clarified how tribunals should approach reductions to compensation for contributory conduct in unfair dismissal cases and how requests for reinstatement should be dealt with.

What happened?

In DHL Services Ltd v Ignatowicz 2026, the claimant was dismissed following a series of Facebook posts made during and after the raising of a grievance. The posts were critical of the employer and controversial; one of them likened the name of a manager to a controversial figure in Polish history who was responsible for a massacre of Jewish and Polish people.

The Tribunal held that the dismissal was unfair, noting in particular: a lack of training on the employer’s policies; limited evidence of reputational damage; a failure to consider lesser sanctions; and the fact that the claimant had not been asked to remove the posts.

When assessing remedy, the Tribunal reduced the compensatory award by 10% to reflect contributory conduct and ordered reinstatement. The employer appealed, contending that the Tribunal had erred in its approach to both contribution and reinstatement.

What the EAT said:

The EAT allowed the appeal and provided important clarification:

  • Different tests apply to the basic and compensatory awards – the basic award is subject to a temporal test: whether the claimant engaged in culpable conduct before dismissal. The employer need not have known about, or relied on, that conduct. The compensatory award is subject to a causal test: the conduct must have caused or contributed to the dismissal and therefore must have been known to and relied on by the employer.
  • Post-dismissal conduct can still matter – conduct occurring between dismissal and appeal cannot reduce the basic award. However, it may reduce the compensatory award if it was considered at the appeal stage and contributed to the decision to uphold dismissal.
  • Conduct might be relied on in “just and equitable” assessment – the case was remitted to the Tribunal to reconsider contribution. It must determine whether conduct occurring before dismissal makes it just and equitable to reduce the basic award, and whether conduct after dismissal was considered at the appeal stage to have caused or contributed to the dismissal. If so, it must then decide the extent to which the compensatory award should be reduced on a just and equitable basis.
  • Consideration should be had as to whether reinstatement would be just – the tribunal had failed to consider whether conduct during the litigation, for example likening the actions of DHL’s staff to that of the Nazis, was such that DHL genuinely and rationally believed that it could no longer have confidence in him. The tribunal should also consider whether the claimant’s qualified right to freedom of expression should affect the tribunal’s approach to contribution and reinstatement.

What this means for employers:

Putting to one side the technical arguments on contributory conduct, the case demonstrates that dismissal for Facebook posts about a grievance and some pretty controversial statements is not that straightforward.

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Fixed-term employees and training: EAT clarifies no separate detriment test

The EAT has confirmed that denying a fixed-term employee access to training is inherently capable of being less favourable treatment, without any need to show a separate detriment. However, employers can still justify differences in treatment where there are genuine, well-evidenced reasons beyond cost alone.

What happened?

In Komeng v National Highways Ltd 2026, the claimant, an employee on an 18-month fixed-term contract, was not informed about a development course aimed at progressing to HR Business Partner roles, while permanent colleagues were nominated. The claimant later became a permanent employee but resigned shortly afterwards. He brought claims including unfair constructive dismissal and less favourable treatment under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (“Regulations”), arguing that he had been treated less favourably by being denied access to training compared to permanent comparators.

The tribunal rejected his claims, finding that the treatment was objectively justified. Relevant factors included the time and cost of the course, the imminent end of the contract, the employee’s lack of interest in the role, and his personal circumstances at the time. The constructive dismissal claim was also dismissed, as the respondent had been supportive of the claimant’s career and there was no fundamental breach of contract. The claimant appealed.

What the EAT said:

The EAT found that the tribunal had erred by introducing a separate detriment requirement into the Regulations. However, it upheld the tribunal’s finding of objective justification and dismissed the appeal, pointing out that:

  • There is no need to show a separate detriment – for claims relating to specific rights under the Regulations (including access to training), less favourable treatment in relation to those rights is, in itself, sufficient.
  • The difference in treatment was objectively justified – the appeal failed because the employer had legitimate reasons for the decision, including the time and cost of the training, the claimant’s imminent departure, and his lack of interest in the relevant role.
  • Cost alone is not enough – the EAT reaffirmed that cost cannot, by itself, justify less favourable treatment, but it may form part of a broader, legitimate justification.

What this means for employers:

  • If a fixed-term employee is denied access to training offered to comparable permanent staff, this alone may amount to less favourable treatment. Employers should not assume a claim will fail simply because no additional disadvantage can be shown.
  • Employers should take care when offering training, development, or progression opportunities to ensure that fixed-term staff are not inadvertently overlooked.
  • Where fixed-term staff are excluded from training, employers should ensure that the decision is properly documented and supported by clear, non-discriminatory reasons.

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Burden of proof in discrimination claims: tribunals must assess each allegation properly

The EAT has found that a tribunal erred by taking a blanket approach to the burden of proof in a religion or belief discrimination case.

What happened?

In Clifton Diocese v Parker 2026, a senior employee who was non-Catholic sought to return from adoption leave on a part-time basis. This request was refused and was followed by performance concerns, misconduct allegations, and eventual dismissal for gross misconduct.

The tribunal upheld claims for unfair and wrongful dismissal, as well as religion or belief discrimination claims relating to the way the disciplinary process had been handled. In particular, the tribunal was critical of the external investigator, finding that aspects of the process were rushed and handled inappropriately, for example, mocking the claimant during the disciplinary hearing, which was characterised as harassment.

What the EAT said:

On appeal the EAT identified several errors in how the tribunal approached the discrimination claims:

  • No blanket approach to the burden of proof – the tribunal had grouped several concerns together to infer discrimination, rather than assessing each allegation individually. This was an error. Each alleged act must be considered on its own facts.
  • Focus on the actual decision-maker – the tribunal relied on conduct by other individuals (such as the line manager), but the findings of discrimination were made only against the external investigator. The tribunal failed to explain how the conduct of others supported the conclusion that the investigator had discriminated.
  • Lack of explanation is not enough – the tribunal treated the employer’s inability to explain certain actions as sufficient to shift the burden of proof. This was incorrect. At the first stage, the tribunal must assume there is no other explanation for the acts alleged to be discriminatory.
  • Consistency of reasoning matters – the tribunal’s reasoning was internally inconsistent, identifying both a discriminatory reason and a separate non-discriminatory explanation for the same conduct.

What this means for employers:

  • Ensure that decision-making is clearly attributable to specific individuals and that the reasoning behind decisions is properly documented and demonstrably non-discriminatory.
  • When defending claims, it remains important to challenge whether the claimant has established a prima facie case, rather than assuming the burden of proof will automatically shift.

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If you have any questions on anything outlined above, get in contact with Paul Seath.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice.