Six Employment Appeal Tribunal decisions from January and February 2026 cover disciplinary fairness, Polkey reductions, section 15 discrimination, post-TUPE pay, state immunity and the reach of COT3 settlement agreements. The cases carry practical lessons across a wide range of everyday employment situations.
Procedural imperfections do not make a misconduct dismissal automatically unfair
In Lamb v Teva UK Ltd [2026] EAT 8, an engineering supervisor was fairly dismissed following a near-fatal electric shock despite arguing the investigation was tainted by dual roles, late CCTV disclosure and a pre-hearing comment from a manager. The EAT dismissed all grounds: disciplinary fairness is assessed in the round; minor procedural imperfections considered together do not require a finding of unfair dismissal. The judgment is also a comprehensive single-document review of the governing framework — section 98 ERA, Burchell, the ACAS Code and natural justice.
Key learning points
Concerns about an investigation not raised at the time are hard to run on appeal.
The band of reasonable responses tolerates imperfection — it does not require a perfect process.
Where concerns about the disciplinary process exist, raising them promptly and in writing during the process is essential to preserving those arguments on appeal.
Polkey counterfactual must focus on the individual, not the employer's model
In Pal v Accenture (UK) Ltd [2026] EAT 12, a manager dismissed under Accenture's 'up or out' progression model had her unfair dismissal found but a 100% Polkey reduction applied. The EAT allowed the appeal: a Polkey reduction requires a fact-specific inquiry into what would have happened for this individual had a fair process been followed — the tribunal cannot assume the model's logic makes the outcome inevitable. The tribunal's failure to properly address the claimant's disability claim (endometriosis) was also an error, and the case was remitted.
Key learning points
A 100% Polkey reduction cannot be justified simply by reference to an employer's general performance system.
Disability linked to conditions such as endometriosis must be properly addressed before a Polkey argument is advanced.
Tribunals must engage individually with each claimant’s circumstances when assessing Polkey; a general business rationale is not a substitute for that analysis.
Wrong section 15 test and conflicting findings require full retrial
In Phullar v OFSTED [2026] EAT 10, an inspector dismissed on capability grounds after cancer surgery — having received none of the equipment recommended by an Access to Work assessment — had her case remitted in its entirety. The employer conceded the section 15 error: the tribunal asked whether disability was an 'operative factor' in dismissal rather than whether treatment was 'because of something arising in consequence of disability'. The same judgment also reached opposite conclusions on whether alternative roles had been explored, and declared the dismissal fair without explaining why, despite listing significant procedural concerns.
Key learning points
Section 15 EA 2010 turns on what arose from the disability — not on whether disability was in the employer's mind.
Irreconcilable factual findings in the same judgment on the same issue are a near-certain route to remission.
Employers should implement reasonable adjustments recommended by specialist assessments such as Access to Work without delay; failure to do so will be difficult to defend in discrimination proceedings.
Post-TUPE failure to harmonise BAME cleaners' pay was indirect race discrimination
In Anne & Others v Great Ormond Street Hospital [2026] EAT 15, eighty BAME cleaners transferred to an NHS Trust under TUPE were not moved onto Agenda for Change rates that other Trust employees received. The EAT held this was indirect race discrimination for the post-transfer period: the relevant comparators after TUPE are other employees of the new employer, not workers of other contractors. Group disadvantage was clear (78% of the transferred group were BAME vs 51% of comparable Trust staff), and objective justification failed — the Trust's contracts contained an express variation clause enabling harmonisation from day one.
Key learning points
Maintaining legacy pay after a TUPE transfer may constitute indirect discrimination if the transferred group carries a protected characteristic.
A contractual variation clause allowing harmonisation from the transfer date will be very difficult to ignore when justification is in issue.
Incoming employers should audit the pay terms of transferred staff at the point of TUPE and take active steps to harmonise where a variation clause permits, rather than allowing disparities to persist indefinitely.
State immunity: EAT stands by its own precedent despite Court of Appeal obiter criticism
In Government of the State of Kuwait v Mohamed [2026] EAT 20, the EAT declined to depart from three of its own earlier decisions holding that section 5 of the State Immunity Act 1978 — which removes immunity for personal injury claims — applies to employment-related claims. A Court of Appeal judge had described those decisions as wrongly decided in Alhayali, but only obiter. The EAT held that an obiter observation does not render its own precedents 'manifestly wrong', which is the applicable threshold. The EAT was also bound by Court of Appeal authority in Shehabi that section 5 covers psychiatric injury.
Key learning points
The EAT's convention of following its own decisions is robust — obiter criticism from a Court of Appeal judge is not a binding instruction to depart from them.
Jurisdictional issues in state immunity cases should be assessed at the outset; a Supreme Court ruling in Shehabi is awaited.
Foreign state employers should monitor the outcome of Shehabi closely, as a Supreme Court ruling altering the reach of section 5 of the State Immunity Act 1978 could significantly change the tribunal’s jurisdiction over employment-related claims.
Broadly worded COT3 can bar future whistleblowing claims from the same disclosures
In Darlington v London Borough of Islington [2026] EAT 11, a teacher who settled a detriment claim about a negative reference via COT3 — in full and final settlement of all claims 'whether arising from employment… or from events occurring after this agreement' — was barred from bringing a fresh whistleblowing claim when the same Council refused her a role at a different school. The EAT held that objectively construed, the COT3 covered all claims past and future causally connected to the same protected disclosures. The future-facing language was unambiguous and the different location of the alleged later detriment did not take it outside the agreement.
Key learning points
Future-facing COT3 language can extinguish claims for wrongs not yet committed at the date of settlement, if causally connected to the settled matters.
Whistleblowers fearing ongoing victimisation must scrutinise the scope of any COT3 carefully before signing.
Advisers should seek to limit future-facing settlement language to specific identified disclosures, or ensure the claimant is fully aware that signing may extinguish claims for detriments not yet suffered.
Bottom line for HR
Across disciplinary process, remedy, discrimination and settlement, these six cases confirm that procedural accuracy and individual assessment matter. There are rarely shortcuts, and the cost of getting the fundamentals wrong remains high.
This round-up covers selected EAT decisions from January and February 2026. It is provided for general information only and does not constitute legal advice.
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