Religion or belief discrimination
Ngole v Touchstone Leeds (EAT)
Mr Ngole applied for a social work position with Touchstone Leeds and received a conditional offer of employment. The organisation later became aware of online reporting reproducing historic Facebook posts in which he had expressed the orthodox Christian view that homosexuality is sinful. After reviewing this material, Touchstone withdrew the offer, invited him to a further meeting and ultimately decided not to proceed with his appointment.
The employer explained that its concern centred on potential impact. It considered that service users might discover the material online, which in turn could undermine confidence in the organisation. It also questioned whether the expressed views aligned with its stated commitment to supporting the LGBTQI+ community.
The Employment Tribunal upheld part of Mr Ngole’s claim but rejected others. On appeal, the EAT concluded that aspects of the tribunal’s reasoning were legally flawed and required reconsideration.
The EAT emphasised the need to distinguish carefully between the protection afforded to holding a belief and the separate question of how that belief is manifested. Direct discrimination because of religion or belief cannot be justified. Where an employer’s concern relates to manifestation, the tribunal needs to analyse whether the issue arises from the belief itself or from the manner in which it was expressed. Only objectionable manifestations are capable, in principle, of justification, and even then the response must be proportionate.
The matter was remitted for reconsideration applying that structured analysis.
Employer takeaways
This decision is a reminder that employers operate in a legally sensitive space when personal beliefs intersect with public-facing roles. The starting point is always the statutory protection of religion or belief. Treatment because of the belief itself cannot be justified, however uncomfortable or controversial that belief may be in a particular social or professional context.
Where an employer’s concern relates to manifestation rather than belief, the reasoning must be carefully articulated. It is not enough to say that reputational risk exists. The question becomes far more granular: what precisely about the conduct is said to be objectionable, how does that objection arise in the workplace context and what evidence supports the concern?
A fear that service users may discover lawful personal views is unlikely to be sufficient on its own. Employers should examine whether there is a tangible operational risk or merely a speculative reaction to potential third-party criticism. Tribunals will interrogate that distinction closely.
Finally, recruitment decisions taken at the conditional offer stage are not insulated from discrimination scrutiny. Once a protected characteristic is engaged, the tribunal will look beyond stated concerns and test whether the real reason for the decision was separable from the belief itself.
Polkey reductions
Ms S Pal v Accenture (UK) Ltd
Ms Pal was employed by Accenture and brought claims for unfair dismissal and disability discrimination following the termination of her employment. A central issue concerned her diagnosis of endometriosis and whether the employer had properly addressed its impact in managing her role and ultimately deciding to dismiss.
Ms Pal pursued claims for unfair dismissal and disability discrimination. The tribunal found procedural unfairness but eliminated compensation by applying a 100% Polkey reduction, concluding that dismissal would have occurred in any event under a different approach.
The EAT held that this analysis was wrong in principle. A Polkey reduction requires examination of what the employer would realistically have done had it followed a fair version of its actual process. It is not open to a tribunal to construct an alternative procedure and assume dismissal would have followed under that hypothetical framework.
The EAT also found that the tribunal had not undertaken a proper statutory analysis of disability. It had failed to evaluate whether endometriosis met the section 6 Equality Act definition and had not adequately addressed whether any unfavourable treatment arose from the condition within section 15. The case was remitted.
Employer takeaways
This case reinforces the limits of hindsight reasoning. When an employer argues that dismissal would have occurred in any event, the tribunal will expect to see evidence anchored in the procedure that actually existed. It is not open to reconstruct the process in a way that better supports the employer’s position after the fact.
Procedural integrity therefore remains central to risk management. Even where the underlying issue appears strong, a poorly executed process can significantly increase financial exposure. A tribunal assessing compensation will ask what would realistically have happened under a fair version of the employer’s own framework.
The disability element adds a further layer. Employers should approach health conditions with structured analysis rather than assumption. Whether a condition meets the statutory definition depends on its practical impact and duration. That assessment should be grounded in medical material and clearly reasoned. Where unfavourable treatment arises from something connected to a condition, proportionality needs to be addressed expressly.
In short, process discipline and careful statutory analysis remain the most reliable safeguards against escalating liability.
Internal appeals process
Milrine v DHL Services Limited
Mr Milrine, an HGV driver, was dismissed on the grounds of medical incapability after a prolonged absence. He exercised his contractual right of appeal, but the appeal process failed to progress. The original appeal manager declined to hear the matter, while the individual who replaced the original appeal manager did not attend the scheduled hearing. Although the employer later invited proposals for alternative dates and managers, this was not confirmed formally and no appeal ever took place.
The EAT held that the dismissal was unfair. Under section 98 Employment Rights Act 1996, fairness is assessed by examining the dismissal process as a whole. The appeal stage forms part of that assessment. Serious failings at appeal level can undermine overall fairness, even if the original decision fell within a reasonable range.
The EAT noted that particularly striking defects require careful judicial explanation if a dismissal is nevertheless to be upheld. Here, the failures were sufficiently serious to render the dismissal procedurally unfair. The question of whether dismissal would have occurred in any event was relevant to compensation, not to liability.
Employer takeaways
The internal appeal stage is often treated as confirmatory rather than substantive, yet this decision illustrates why that approach is unsafe. Under section 98, fairness is assessed across the dismissal process as a whole. An appeal that fails to function properly can undermine an otherwise defensible decision. What mattered here was not simply that the appeal did not cure earlier defects. The failure to progress it at all signalled procedural breakdown. Confusion, absence of written confirmation and lack of proactive management fell below reasonable standards.
For employers, the lesson is that appeal arrangements should be handled with the same degree of formality as the original hearing. Allocation of an appropriate manager, clear written communication and active oversight are basic safeguards. Even where the outcome appears predictable, tribunals separate the question of fairness from the question of inevitability. An employer may succeed in reducing compensation if dismissal was likely in any event, but that does not repair a procedurally flawed process.
Unfair dismissal
Chand v EE
Ms Chand was dismissed for gross misconduct following four incidents which the employer characterised collectively as fraudulent. The dismissing officer treated the allegations together and concluded that fraud had occurred.
The Employment Tribunal later found that there were no reasonable grounds for believing that any of the incidents involved fraud. However, it upheld the dismissal on the basis that one incident amounted to a serious policy breach.
The EAT allowed Ms Chand’s appeal. The tribunal had failed to identify the employer’s actual principal reason for dismissal. The evidence showed that the operative reason was a composite allegation of fraud. Once the tribunal concluded that the belief in fraud was not reasonably held, the dismissal could not stand.
The tribunal had strayed into assessing what the decision-maker might have concluded on the evidence, rather than identifying what was in fact concluded at the time. That counterfactual reasoning was relevant only to compensation.
Employer takeaways
This decision underlines the importance of precision in identifying the reason for dismissal. Tribunals will not reconstruct the case for the employer. They examine what the decision-maker actually relied upon at the time. Where allegations are framed collectively, the reasoning must support that collective characterisation. If the employer presents the conduct as fraud, it needs a reasonable evidential basis for that belief. If that belief collapses, the dismissal may collapse with it.
Employers should therefore avoid over-labelling conduct. Characterising behaviour in the most serious terms may appear robust, but it narrows the margin for error. Careful articulation of the reason in decision letters and investigation notes is critical.
This case also demonstrates the distinction between liability and remedy: the fact that a lesser characterisation might have justified dismissal does not salvage an unfair dismissal finding. Counterfactual reasoning belongs to compensation, not to the identification of the principal reason.
Secondment & whistleblowing
Bank of Africa United Kingdom and others v Hassani
Ms Hassani was employed by BMCE Bank of Africa and seconded to its UK affiliate. The secondment documentation provided that her employment remained with BMCE, with an expectation of return at the end of the arrangement.
During her time in the UK, she raised concerns about regulatory compliance and governance within the UK business, including matters relating to Financial Conduct Authority obligations. Relations with senior management deteriorated. She was later placed on gardening leave and, following the end of the secondment in 2021, returned to BMCE.
She brought claims in the Employment Tribunal alleging automatic unfair dismissal for whistleblowing under section 103A of the Employment Rights Act 1996 and whistleblowing detriment under section 47B against the UK bank and individual respondents.
The Employment Tribunal concluded that, by early 2021, the UK entity had effectively “stepped into the shoes” of the employer and that her employment had transferred. On that basis, it upheld her automatic unfair dismissal claim and found that she had been subjected to unlawful detriments for whistleblowing.
The Employment Appeal Tribunal disagreed on the central issue of status. It held that the tribunal had erred in law in treating managerial control as determinative of employment identity. A change in employer requires a legally effective novation or other recognised transfer mechanism involving agreement of the relevant parties. On the tribunal’s own findings, there had been no such agreement. BMCE therefore remained her employer throughout the secondment.
That conclusion was dispositive of the automatic unfair dismissal claim against the UK bank. Without an employment relationship, liability under section 103A could not attach to that entity.
The EAT also found that the tribunal had not properly analysed the statutory framework governing whistleblowing detriment. Where the alleged wrongdoer is not the direct employer, liability depends on whether the extended definitions in section 43K ERA 1996 apply or whether the individuals acted as authorised agents. In addition, the tribunal had adopted an impermissible composite approach by treating respondents as collectively responsible without examining each person’s knowledge and motivation separately.
The detriment findings were set aside and remitted to a differently constituted tribunal for reconsideration on a narrowed basis.
Employer takeaways
Secondment arrangements within group structures have the potential to blur operational lines, but this decision restores legal clarity. Employment status does not shift simply because managerial control sits elsewhere. A contractual employer remains in place unless there is a legally effective change agreed by the parties.
For organisations operating across entities, this has real consequences. Automatic unfair dismissal liability depends on employment status. Whistleblowing detriment liability depends on statutory gateways. The analysis should begin with the contract and the statutory definitions, not with assumptions about who exercises control.
The EAT’s rejection of a pooled or composite approach to detriment liability is equally important. Each alleged act should be traced to a specific individual and a specific reason. Motives cannot be merged across respondents.
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