Employment Appeal Tribunal rulings from February 2026 cover a wide range of issues — from the dangers of defective dismissal appeals to the limits of whistleblowing protection, the treatment of religious belief in recruitment, and the proper approach to composite misconduct.
In this month’s roundup, prepared by employment law platform LexHR, we look at nine decisions that employers, HR teams and legal advisers should take note of. From a landmark equal pay procedural ruling in the long-running Tesco litigation to a Christian social worker’s belief discrimination case going back before the tribunal, the rulings are a reminder that precision, process and proportionality matter at every stage.
Race discrimination claims fail where evidence doesn’t stack up — Nowak v Evtec Aluminium
Feeling that you’ve been treated unfairly isn’t enough on its own. The Employment Appeal Tribunal has reaffirmed that race discrimination claims must be grounded in credible evidence — not assumptions or shifting accounts.
In Mr M Nowak v Evtec Aluminium Ltd [2026] EAT 26, the EAT dismissed an appeal by a Polish machine operator who claimed direct race discrimination and victimisation by his line manager and employer.
Nowak alleged that his manager had singled him out for mistreatment because of his Polish nationality. But the tribunal found his account inconsistent, his corroborating witness not credible, and the evidence simply didn’t support an inference that race was the reason for any of the treatment he complained about. On appeal, the EAT found no error in the tribunal’s reasoning — including its observations that the workforce was largely Polish and that there was no obvious trigger for the alleged bias beginning when it did.
The EAT also dismissed arguments that a collective grievance about Friday break entitlements should have been treated as a Working Time Regulations claim. The tribunal had clearly established no such complaint was ever properly before it, and a late attempt to add one was rightly refused.
Key takeaways for HR and legal teams
Evidence is everything. A claimant’s subjective perception of discrimination doesn’t shift the burden of proof without some factual basis from which discrimination could be inferred.
Credibility matters. Where a claimant’s account shifts between a grievance and tribunal, and key corroborating witnesses are found not credible, the claim will struggle.
Watch for late-emerging claims. If an employee raises a complaint informally that might have legal legs under a different statute — such as the Working Time Regulations — it needs to be properly identified and pleaded as a tribunal claim. Mentioning it in passing is not enough.
Document grievance investigations properly. Even where an investigation is found to be inadequate, the absence of evidence that a non-Polish employee would have been treated differently can be decisive in defeating a discrimination claim.
Seconded employee’s unfair dismissal claim fails — but whistleblowing detriments face fresh scrutiny — Bank of Africa v Hassani
When an employee is on secondment, who is actually their employer? That question lies at the heart of a significant ruling with implications for any organisation that seconds workers from a parent or affiliated company.
In Bank of Africa UK Plc & Ors v Ms N Tahri Hassani [2026] EAT 27, the EAT ruled that the Employment Tribunal had made a fundamental legal error in concluding that Ms Hassani — seconded from her Moroccan parent bank BMCE to work at Bank of Africa UK as Head of HR — had become an employee of Bank of Africa UK during the secondment.
Ms Hassani had raised multiple FCA compliance concerns during her secondment and alleged she had been subjected to whistleblowing detriment as a result. The tribunal concluded that the behaviour of Bank of Africa’s CEO — who repeatedly tried to dismiss her — had effectively transferred her employment contract to Bank of Africa UK.
The EAT disagreed. An employment contract cannot transfer from one employer to another simply because one party behaves as though it has. Novation — which requires the consent of all parties — is required. Because the tribunal’s conclusion on employment status was wrong, its finding of automatically unfair dismissal fell away entirely. The whistleblowing detriment claims were remitted to a fresh tribunal.
Key takeaways for HR and legal teams
Secondment agreements must be respected. Clearly drafted secondment documentation — specifying who the employer is throughout — matters enormously. Courts will generally enforce what the documents say.
Unilateral ‘takeover’ of employment doesn’t work. One party cannot simply assume the role of employer without the employee’s consent and a proper legal mechanism for transfer.
Whistleblowing detriment liability is more complex than it looks. Even where the formal employment claim fails, detriment complaints under section 47B ERA can survive — but require careful analysis of which respondents are liable for which acts.
Separate your analysis of respondents. The EAT criticised the original tribunal for treating all three respondents as equally liable for all five detriments without properly identifying who did what and why.
EE’s fraud-based dismissal overturned — employer’s actual reason must hold up — Chand v EE Ltd
When an employer dismisses someone for multiple acts of alleged misconduct, it needs to be clear about what it actually decided — and each element of that decision needs to hold up. That’s the lesson from a ruling that delivers a sharp reminder about how composite dismissal reasons must be handled.
In Elizabeth Chand v EE Ltd [2026] EAT 17, the EAT allowed an appeal by a Senior Customer Advisor with 16 years’ unblemished service who was dismissed for gross misconduct following four customer service incidents, each characterised by EE as fraudulent.
The tribunal found that EE had no reasonable grounds to conclude that any of the four incidents amounted to fraud — but still upheld the dismissal on the basis that one incident was a serious enough breach of policy on its own. The EAT ruled that was an error. Where an employer dismisses for a composite reason — all four incidents framed as fraud — a tribunal cannot save the dismissal by asking whether a narrower version might have worked. If a key component of the employer’s actual reason lacked reasonable grounds, the dismissal is unfair.
Key takeaways for HR and legal teams
Identify your actual reason for dismissal. Decision-makers must be clear and consistent about what they are concluding and why — particularly where multiple incidents are involved.
Don’t bundle unproven allegations. Characterising a range of incidents as fraud without solid grounds undermines the whole case. If fraud is alleged, it needs a reasonable evidential basis.
You can’t retrofit a narrower case. Tribunals assess the reason the employer actually had, not the best reason it might have been able to give. Train decision-makers to articulate their reasoning clearly.
Long service and a clean record matter. A dismissing manager’s acknowledgement that length of service might have altered the outcome had fewer allegations been proven should be applied rigorously from the outset.
Christian social worker’s case sent back after tribunal fails to analyse decisions properly — Ngole v Touchstone Leeds
Can an employer withdraw a job offer because of an applicant’s religious beliefs? Only if it carefully analyses whether its concern is about the beliefs themselves or how they might be expressed — and that’s exactly where a Leeds mental health charity fell short.
In Mr F Ngole v Touchstone Leeds [2026] EAT 29, the EAT partially allowed an appeal by a qualified Christian social worker whose conditional job offer was withdrawn after the charity found online coverage of a previous legal dispute arising from Facebook posts in which he described homosexuality and same-sex marriage as sinful.
The tribunal had ruled that the initial withdrawal was direct discrimination, but that the subsequent second interview and final decision not to reinstate were proportionate. The EAT agreed on the initial withdrawal but found the tribunal had failed to properly separate and analyse the different reasons behind later decisions — in particular, it had not distinguished between concerns about Mr Ngole’s beliefs themselves (which cannot lawfully be the basis for adverse treatment) and concerns about how he might manifest those beliefs when working with LGBTQI+ service users. Those later decisions are to be reconsidered.
Key takeaways for HR and legal teams
Belief and manifestation are different things. Employers cannot lawfully act against someone purely because of beliefs they hold. But they can — potentially — take proportionate steps in response to concerns about how those beliefs might be expressed in a particular role.
Analyse each decision separately. Where multiple steps are taken (withdrawing an offer, requiring a second interview, declining to reinstate), each must be assessed on its own merits and reasoning.
Don’t conflate reputational risk with belief discrimination. Concerns that third parties might discover an employee’s views online are not the same as concerns about their ability to perform the role.
Document specific reasons behind recruitment decisions. Vague references to ‘values alignment’ without careful analysis will not survive scrutiny when a protected characteristic is involved.
Broken appeal process turns fair dismissal unfair — Milrine v DHL Services
A dismissal that looks fair on the face of it can still be ruled unfair if the employer makes a mess of the appeals process. DHL found that out the hard way.
In Milrine v DHL Services Ltd [2026] EAT 31, the EAT substituted a finding of unfair dismissal after concluding that the tribunal had wrongly downplayed a catastrophically mishandled internal appeal.
Mr Milrine, an HGV driver, was dismissed for medical incapability after more than two years’ absence caused by vertigo and vestibular migraines. The substantive decision to dismiss was not unreasonable. But what followed was described by the EAT as “strikingly” defective. The nominated appeal manager refused to hear the appeal and told no one. A replacement failed to show up, leaving Mr Milrine and his union representative waiting at the site. HR then left it to Mr Milrine to choose the next appeal manager and propose dates — without confirming anything in writing. The appeal never happened.
The original tribunal criticised this process but still found the dismissal fair overall. The EAT said that was an error. The appeal is an integral part of the fairness assessment under the Employment Rights Act, not a formality to be discounted.
Key takeaways for HR and legal teams
The appeal is not a box-ticking exercise. It is a substantive part of the dismissal process. A chaotic or non-existent appeal can undo an otherwise defensible decision.
The burden is on the employer. It is not the employee’s responsibility to chase the appeal. Employers must manage the process proactively and confirm everything in writing.
‘Futility’ must be established. If an employer wants to argue that a proper appeal would have made no difference to the outcome, it must actually say so — and have a basis for it.
Procedural failings go to liability, not just remedy. If the tribunal concludes the dismissal was unfair because of a defective appeal, compensation may be reduced to reflect that a fair process would probably have reached the same outcome — but that is a separate question.
Remission tribunal asks wrong question in long-running victimisation case — Fullah v Medical Research Council
Sometimes the problem isn’t that a tribunal gets the answer wrong — it’s that it answers the wrong question entirely.
In Mr H Fullah v Medical Research Council & Others [2026] EAT 28, the EAT allowed what is now at least the third appeal in a case that has been running since Mr Fullah, a black British IT officer, was dismissed by the MRC in 2017 — just days after returning to work following a tribunal hearing on race and disability discrimination claims.
A previous EAT had found that the tribunal considering the dismissal as victimisation had erred, and remitted a specific causation question: not simply whether the breakdown in working relationships had “contributed” to the dismissal, but whether that breakdown was itself “properly separable” from the protected acts of bringing tribunal proceedings.
On remission, the tribunal asked itself the wrong question — framing the issue as one of contribution rather than separability. The EAT found those errors fundamental. The matter is now remitted to an entirely fresh tribunal.
Key takeaways for HR and legal teams
‘Breakdown in relationships’ is not automatically a safe reason to dismiss. Where someone is dismissed shortly after bringing tribunal proceedings, employers must show the breakdown has causes genuinely independent of those proceedings.
The Martin v Devonshires test matters. Before dismissing on breakdown-of-relationship grounds where tribunal claims are in the background, legal advice should specifically address whether the breakdown is ‘properly separable’ from the protected acts.
Remission orders must be followed precisely. When a case is sent back with a specific direction, the tribunal must address that exact question. Answering a different question is an error of law.
Act quickly and carefully after tribunal proceedings. Any adverse action taken close in time to tribunal claims will face intense scrutiny. Documentation of independent business reasons must be thorough and contemporaneous.
Whistleblower’s motive doesn’t determine public interest — Bibescu v Clare Jenner
Having mixed motives for blowing the whistle doesn’t automatically disqualify you from protection. That’s the key message from a ruling that puts tribunals on notice not to conflate motive with belief.
In Miss Elena Bibescu v Clare Jenner Ltd t/a Jenner’s [2026] EAT 30, the EAT allowed the whistleblowing detriment element of a claim brought by an accountant dismissed by an accountancy practice in June 2020.
Ms Bibescu had raised concerns about a subcontractor. The tribunal found her disclosure wasn’t protected because her motive had been to discredit the subcontractor, not to act in the public interest. The EAT found that analysis was wrong. The test is whether the worker genuinely believed the disclosure was in the public interest — not why they made it. A disclosure is unlikely to be in the public interest only if it is entirely self-interested. Motive and belief are different things, and the tribunal had impermissibly collapsed the two.
However, the appeal against the automatically unfair dismissal finding failed: the tribunal had been entitled to find the reason for dismissal was Ms Bibescu’s performance and her inability to work with the subcontractor — not her disclosures.
Key takeaways for HR and legal teams
A worker’s motive for blowing the whistle is not the test. The question is whether they genuinely believed — reasonably — that the disclosure was in the public interest. Self-interest and public interest can coexist.
Don’t dismiss concerns because the messenger has an agenda. Even where a disclosure is made partly to damage a colleague, it may still be protected if the worker genuinely believed there was a public interest dimension.
Carefully separate the reason for dismissal from the act of disclosure. If a dismissal can be explained by poor performance or difficult working relationships, that evidence needs to be thorough and independent.
Get the whistleblowing test right from the start. The combined requirements — qualifying disclosure, reasonable belief, public interest — each need to be assessed separately and in the right order.
Equal pay litigation procedures must be followed to the letter — Tesco Stores v Element
The mammoth Tesco equal pay litigation has generated yet another procedural ruling — this time a reminder that the tribunal rules governing reconsideration applications are mandatory and must be followed precisely.
In Tesco Stores Ltd v Ms K Element & Others [2026] EAT 33, the EAT considered appeals arising from procedural decisions in the equal value stage of the long-running litigation involving more than 50,000 predominantly female store-based employees who claim they are paid less than distribution centre colleagues.
The EAT clarified how the mandatory procedural stages for reconsideration applications must be applied, emphasising that the word “must” in the tribunal rules means exactly that — each step is obligatory and cannot be skipped or treated as discretionary. With the substantive Material Factor Defence hearing scheduled for spring 2026, this ruling keeps the case moving, if slowly, forward.
Key takeaways for HR and legal teams
Procedural rules in large cases are not optional. Strict compliance with the tribunal’s procedural framework is essential, particularly in complex multi-claimant cases where any misstep can cause significant delay.
Equal pay exposure is long-term. Retailers and employers with split workforces — some customer-facing, some in distribution or logistics — should monitor this litigation closely. The substantive question of whether the pay difference can be justified is yet to be finally determined.
Case management in complex claims matters enormously. Errors in the management of reconsideration applications can themselves become grounds for appeal, adding cost and further delay to already protracted proceedings.
Childcare discrimination justification gets rare detailed guidance — Dobson v North Cumbria NHS
It is well established that requiring employees to work weekends can amount to indirect sex discrimination — because women disproportionately bear childcare responsibilities. But what happens when an employer says the requirement is justified? Guidance on that question has been rare. Until now.
In Mrs Gemma Dobson v North Cumbria Integrated Care NHS Foundation Trust [2026] EAT 32, the second EAT appeal in this dispute, the EAT dismissed Ms Dobson’s challenge and provided substantial guidance on how tribunals should approach the justification stage of indirect discrimination claims.
Ms Dobson, a community nurse with three children (two of whom are disabled), had worked a fixed Wednesday/Thursday pattern since 2008. When the Trust introduced a requirement that all community nurses work flexibly — including at weekends — she refused and was dismissed. On the second appeal, the EAT provided practical guidance: tribunals may take into account the impact on the specific claimant when assessing proportionality; employers are not required to conduct formal monitoring of every PCP’s impact to rely on justification; and where a PCP has built-in flexibility, tribunals should look at the PCP as actually applied — not a “diluted” version of it.
Key takeaways for HR and legal teams
Justification requires evidence, not assumptions. Employers must show that the requirement serves a legitimate aim and goes no further than necessary. Vague references to ‘business need’ will not suffice.
Flexibility within a PCP cuts both ways. A requirement framed with some give — ‘you may need to work some weekends’ — does not necessarily make it easier to justify. Tribunals will look at how it was actually applied.
The childcare disparity is a starting point, not the whole analysis. Acknowledging group disadvantage is only part of the picture. Justification remains a live and contested issue in each case.
Document your attempts to accommodate. The Trust’s willingness to negotiate a compromise — which Ms Dobson declined — was relevant to the proportionality assessment. A clear paper trail of flexibility offered and refused is an important safeguard.
Bottom line for HR
February’s EAT decisions touch every stage of the employment lifecycle — recruitment, secondment, disciplinary action, dismissal and internal appeals. The common threads are precision and process: employers who act clearly, consistently and in accordance with their own procedures — and who document that they have done so — are far better placed when things end up in litigation.
For HR teams, the Milrine and Chand cases in particular are a timely reminder that a defensible outcome is not the same as a fair process. Getting the decision right is only half the job.
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