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Employment in the news | May 2026
27 May 2026
Our newsletter is a quick read this month, reflecting limited legislative activity. It was a surprise that the King's Speech didn't include a Bill on ethnicity and disability pay reporting. The EHRC's revised Code of Practice on Services, public functions and associations was put before Parliament for approval. Recent EAT decisions offer guidance on what amounts to a protected disclosure for whistleblowing purposes, and how to approach protected conversations to preserve their confidentiality in subsequent proceedings.
Chapter 1
EHRC Code of Practice on Services, public functions and associations
The EHRC's revised Code of Practice on Services, public functions and associations has been of particular public interest because it covers the interaction of the protected characteristics of sex and gender reassignment. The Code, which was already being updated, was revised to reflect the Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers on the definition of sex in the Equality Act. The government laid the Code before Parliament for approval on 21 May and it will come into force in due course.
The Code gives service providers guidance on how to balance the rights of all service users in the context of access to single sex facilities. Although employers will be interested in the guidance, it's not directly relevant to handling similar issues in a workplace context. The Equality Act contains a specific exemption for providing single-sex services if specific conditions are met and the guidance deals with that exemption, which doesn't apply to employment-related discrimination.
For employers, the legal issues surrounding balancing rights in the workplace are being clarified through tribunal decisions. The EAT is due to hear appeals in at least two cases, which should give greater certainty about the interplay between gender reassignment and sex discrimination in the employment context.
Chapter 2
Whistleblowing – what counts as a qualifying disclosure?
In Capeling v TFX Group Ltd, the EAT confirmed that a disclosure about missing contracts accompanied by a mention of health and safety risks did not qualify for whistleblowing protection.
TFX Group dismissed Mrs Capeling from her sales role with a medical device manufacturer during her probationary period. She claimed that this was because she’d blown the whistle, making her dismissal automatically unfair. She relied on a Teams call in which she told a manager that the company did not have written contracts in place with some contractors and that this was putting the health and safety of patients at risk.
The EAT found that a complaint about missing contracts alongside an "unexplained and unspecified general assertion" about health and safety risks was not a disclosure of information. A disclosure needs to have sufficient factual content to be capable of showing that there is a health and safety danger or a risk that a danger is being deliberately concealed. The generalised nature of the complaint did not meet that threshold.
Even if there had been a disclosure of information, the tribunal’s finding that Mrs Capeling did not have a reasonable belief that the matters disclosed tended to show that there was a health and safety risk was fatal to her case. The absence of a written contract had no bearing on health and safety and Mrs Capeling’s role in the organisation meant she would have known that.
Next steps
- Employers faced with an employee complaint should scrutinise whether it has sufficient factual content to amount to a whistleblowing complaint.
- Complaints that simply flag a concern in general terms may not cross the threshold for protection. The disclosure must convey information, not merely an unsubstantiated opinion.
Chapter 3
Protected conversations – the importance of proper process
Tarbuc v Martello Piling Ltd highlights the need to consider all aspects of a protected conversation, not simply what an employer says during a meeting, to decide whether either party can refer to it in later tribunal proceedings. Under the Employment Rights Act, pre-termination negotiations are normally inadmissible in unfair dismissal claims unless either party has behaved improperly.
Mr Tarbuc was dismissed for redundancy in June 2024. His employer invited him to a meeting at which it offered him terms for a departure, which he did not accept. It said this was a "protected conversation". The employee tried to rely on the conversation in his unfair dismissal claim but the tribunal found it was inadmissible because the employer’s conduct in the meeting wasn’t improper.
His appeal against the decision succeeded. Although what happened during the meeting was relevant to whether there had been improper conduct, it was not the only relevant factor. The tribunal hadn’t considered the cumulative effect of other matters the employee had raised – for example that not having advance warning of the meeting was an "ambush” and meant he did not have an opportunity to bring a companion with him. That was inconsistent with the ACAS Code of Practice on Settlement Agreements. The tribunal’s decision could not stand as it had not taken account of all the potentially relevant factors when considering whether the employer’s handling of the discussions was improper.
Next steps
- Follow the ACAS Code of Practice carefully when initiating a pre-termination negotiation, to reduce the risk that employees allege that there has been improper conduct.
- Tribunals assess improper conduct "in the round" – including how the employer arranges the meeting and whether the employee has a chance to prepare for it.
- In any event, section 111A protection is claim-specific. It applies only to ordinary unfair dismissal. Evidence of the protected conversation remains admissible in relation to other claims the employee might bring.
Authored by Ed Bowyer, Stefan Martin, and Jo Broadbent.
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