Four mid-2026 Employment Appeal Tribunal decisions address coercion in gross misconduct, when a discretionary bonus becomes payable, constructive knowledge of disability and reasonable adjustments, and the boundary between protected trade union activity and separable misconduct.
Duress and gross misconduct: culpability cannot be ignored
In XX v YY [2026] EAT 89, an assistant head teacher in a coercive relationship was persuaded to send a sexual message to someone she believed was under 18. It was accepted that she feared serious harm to herself and her children if she refused. The employer discovered the incident 18 months later and summarily dismissed her. The Employment Tribunal rejected her wrongful dismissal claim, treating duress as irrelevant once the act was proved. The EAT allowed the appeal. Although statutory fairness was not in issue, the tribunal had to decide whether the conduct, viewed in context, was sufficiently serious to constitute a repudiatory breach justifying dismissal without notice. Coercion was relevant to culpability and gravity. The claim was remitted.
Key learning points
1. Investigate credible coercion, threats or controlling behaviour before finding gross misconduct.
2. Proof of the act does not automatically establish repudiatory breach; intention, culpability and context matter.
3. Wrongful dismissal and notice pay remain distinct from unfair dismissal, reasonable investigation and the range-of-reasonable-responses test.
Discretionary bonuses: employers cannot retrospectively move the goalposts
In Chandrashekarappa v Wipro Ltd [2026] EAT 73, Wipro offered a “kitty bonus” of up to 1% of first-year revenue from new business, subject to sector-lead approval. After the claimant secured a major John Lewis Partnership contract, his manager recommended 1% and the sector lead replied, “I am ok. Go ahead.” Wipro later required further approval and imposed a previously undisclosed $150,000 cap. The Employment Tribunal held that entitlement arose only when the capped award was formally declared. The EAT allowed the appeal. The question was what terms had objectively been communicated and whether they were satisfied, not a manager’s later view about additional authorisation. Wipro could not add an approval stage or retrospective cap. The bonus could be “wages properly payable” for an unlawful deduction claim even though its final value depended on later revenue.
Key learning points
1. Schemes should identify decision-makers, caps, conditions and when entitlement crystallises.
2. “Discretionary” does not permit new conditions after communicated terms are met; presentations and emails may be relevant.
3. Managers should confirm their authority before approving awards; internal misunderstandings may not prevent entitlement.
Constructive knowledge of disability: employers must join the dots
In Cunningham v British Broadcasting Corporation [2026] EAT 92, the claimant experienced exhaustion from type 2 diabetes and sought relief from late shifts. Express occupational health advice that she was disabled arrived only in December 2023. The Employment Tribunal found that the BBC neither knew nor ought reasonably to have known earlier. The EAT held that this isolated the formal occupational health conclusion instead of assessing the BBC’s cumulative knowledge and whether reasonable follow-up questions were required. Any reasonable tribunal would find knowledge at the relevant time. The tribunal also failed to decide whether removing her from the BBC Scotland late shift, creating a stable daytime and early-evening rota, was a reasonable adjustment. Time for an omission to adjust ordinarily runs from when the employer could reasonably have been expected to act, not merely from a later express refusal.
Key learning points
1. Consider symptoms, duration, absence, treatment and workplace impact cumulatively; do not wait for the word “disabled”.
2. Information suggesting a substantial, long-term impairment may require reasonable enquiries.
3. Assess adjustment requests promptly and individually; delay can itself create liability.
Trade union activity and misconduct: protection depends on proper characterisation
In Young v Royal Mail Group Ltd [2026] EAT 93, an employee was dismissed after two posts in a Communication Workers Union WhatsApp group during an industrial dispute. One abused Royal Mail; the other told named individuals to “choose sides” and referred to a car being blown up. The Employment Tribunal found that the posts were not participation in independent trade union activities and that dismissal was for conduct, not union activity. The EAT dismissed the appeal. Under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, characterisation was evaluative and depended on fact and degree. Earlier cases did not require conduct to be exceptionally objectionable before losing protection, and use of a union forum did not automatically make it protected. The tribunal could treat the posts as separable misconduct.
Key learning points
1. Distinguish robust union participation from separable misconduct such as threats or intimidation.
2. The forum is relevant but not decisive; assess content, purpose, audience and connection with legitimate union activity.
3. Disciplinary reasoning should identify the precise conduct and why it is misconduct rather than protected activity; overbroad reasoning risks automatic unfair dismissal.
Bottom line for HR
These decisions require employers to look beyond labels. Gross misconduct must be assessed in context, including coercion. Bonus discretion must remain within communicated terms. Disability knowledge is cumulative and may require active enquiry. Union-related conduct must be distinguished from separable misconduct. Clear policies, documented authority and fact-specific reasoning remain the strongest protection against challenge.
This round-up covers selected EAT decisions from mid-2026 examined for their legal and practical significance.
This article was created with insights from Lex HR - your always-on HR legal assistant. Lex HR helps HR professionals navigate complex employment law with confidence, providing real-time, reliable advice tailored to your needs. Try it free today and see how much easier compliance can be.