Recent Case Law November 2026

Harassment: five questions HR should ask

When does an inappropriate comment at work cross the line into unlawful harassment? A recent EAT decision provides a useful reminder that the answer is not simply whether the employee was offended.

In McManus v British Airways, a cabin crew member with anxiety and depression was told during an occupational health assessment that Access to Work was “not for people like you, it’s for people in wheelchairs”.

She felt harassed by the comment, but her Equality Act harassment claim ultimately failed.

So, when HR is faced with a harassment complaint, what should it be asking?

1. Was the conduct unwanted?

There must first be unwanted conduct. 

This can include words, actions, jokes, images or other behaviour.

1. Was it related to a protected characteristic?

For most Equality Act harassment claims, there must be a connection between the conduct and a relevant protected characteristic. In McManus, the comment related to disability.

1. What was the purpose or effect?

The conduct must have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

1. How did the employee perceive it?

If relying on the effect of the conduct, the employee must actually have experienced the prohibited effect. Their perception therefore matters.

1. Was it reasonable for the conduct to have that effect?

This is the important final check. HR should consider all the circumstances, not simply whether somebody was upset or offended.

McManus confirms that those circumstances can include the employee’s mental ill health. However, this does not mean that their perception automatically becomes objectively reasonable.

The HR takeaway? Harassment is highly context specific. Investigations should look beyond the words used and consider the employee, the circumstances and the context before reaching conclusions.

Employment status: is the worker test about to change?

Employee, worker or self-employed? Getting employment status right matters because it determines which employment rights someone receives.

Employees have the widest range of rights, including protection against unfair dismissal and the right to a redundancy payment. “Workers” have fewer rights but still benefit from important protections including the National Minimum Wage and paid holiday. Genuinely self-employed people generally fall outside the employment rights framework.

The difficulty is that working out which category someone falls into is not always easy.

Why does substitution matter?

At the moment, someone must normally be required to carry out the work personally to qualify as either an employee or a worker.

This means that substitution can be important. If someone has a genuine and unrestricted right to send somebody else to do the work in their place, that can point strongly towards them being self-employed rather than a worker.

The Government is concerned that this can sometimes produce the wrong result. Someone might be closely controlled by the organisation they work for, for example, but still miss out on worker rights because they have a genuine right to provide a substitute.

As such, the Government is consulting on whether “significant direction or control” should become another way of establishing worker status. In practice, this would mean looking more closely at how much control an organisation has over the individual, rather than allowing a right of substitution to determine the issue.

This may only be the beginning…

The Government is also considering introducing a presumption that someone is a worker when they bring certain employment tribunal claims. It would then be for the organisation engaging them to show that they are not.

Looking further ahead, the Government's ambition is more significant still. It ultimately wants to replace the current employee and worker categories with a single status of “worker”, with everyone within that category potentially receiving full employment rights.

For now, nothing has changed and the existing three categories remain in place. HR teams do not need to start rewriting consultancy agreements just yet. But organisations which regularly use contractors, freelancers or gig workers should keep a close eye on developments. Changes to the test could mean that more people qualify for employment rights in future.

The Government's consultation closes on 8 January 2027.

Mitigation of loss: who has to prove what?

Winning an employment tribunal claim does not necessarily mean an employee will recover every penny they lose afterwards.

Employees are expected to take reasonable steps to “mitigate” their loss. In an unfair dismissal case, that will usually mean making reasonable efforts to find alternative work rather than simply allowing losses to accumulate.

But there is an important point about the burden of proof. 

Responsibility falls on the employer to show that the employee has acted unreasonably by failing to mitigate their loss. 

It is not the employee’s responsibility to prove that everything they did was reasonable.

An example: Kirkland v. Mason

Ms Kirkland was summarily dismissed from her part-time administration manager role and successfully claimed unfair dismissal.

At the remedy hearing, she claimed 19 months' lost earnings. The tribunal awarded only six months, saying it was not satisfied that she had mitigated her losses. It considered that she had chosen to prioritise a growing short-term property letting business over finding other work.

The EAT overturned that decision.

The tribunal had asked the wrong question. It needed to decide whether the employer had proved that Ms Kirkland had acted unreasonably in failing to mitigate her losses. The tribunal had made no such finding.

What does this mean for HR?

If an employer wants to argue that compensation should be reduced for failure to mitigate, it needs to be ready to prove its case.

That may mean gathering evidence of suitable alternative jobs available during the relevant period, carrying out job-market searches, and working with recruitment businesses to demonstrate the opportunities realistically open to the claimant.

Simply pointing to gaps in the claimant's job search may not be enough.

Mitigation arguments therefore need to be employer-led and evidence-based. If reducing compensation matters, start gathering that evidence rather than expecting the employee to prove the opposite.

When your star performer is causing problems

What do you do when someone is brilliant at their job, but increasingly difficult to work with?

It can be tempting to tolerate the behaviour, particularly where the individual is commercially important or difficult to replace. The problem with waiting is that relatively manageable concerns can develop into something much harder to resolve.

Muir v AstraZeneca UK Ltd provides a useful example.

Dr Muir was a technical lead working on a project to develop a breast cancer drug. Colleagues made informal complaints about his overly forceful manner, but he was not initially made aware of how his behaviour was being perceived.

Eventually, matters escalated and he was dismissed for gross misconduct. He successfully claimed unfair dismissal and disability discrimination.

The tribunal considered that AstraZeneca should have intervened much earlier. Dr Muir was unaware of the impact his behaviour was having. The company also knew that he had mental health issues and was experiencing stress as an important project deadline approached.

Don't wait for the formal complaint

The lesson for HR is not that difficult behaviour should be tolerated. Quite the opposite.

Early intervention could mean an informal conversation about how someone is coming across, management or communication training, clearer behavioural expectations, or support with workload and stress.

This can be particularly important with high performers. Technical expertise can sometimes mean that behavioural problems are dismissed as quirks or the price of getting results, but avoiding the conversation may be unfair to everyone involved. 

The better approach is to spot the pattern and intervene early. Waiting until colleagues are making formal complaints and the employer has lost patience can turn a manageable people problem into a disciplinary process, resignations or litigation.

Lastly, Captain Kirk comes to the rescue of an ex-Aldi employee

It is not every payroll dispute that attracts the attention of the captain of the USS Enterprise.

But William Shatner, better known as Star Trek’s Captain Kirk, recently waded into a row between Aldi and a former employee over a £97.64 wage overpayment.

The employee’s father, radio presenter Chris Brooks, posted on X after his son received a letter from Aldi seeking repayment following the end of his employment. Brooks described the letter as “intimidating”, particularly because it warned of debt recovery action if payment was not made by a date which, according to Brooks, had already passed before the letter was even sent.

Enter Captain Kirk.

Shatner responded publicly, criticising Aldi’s accounting department and suggesting that the company should work out how much it had spent pursuing the debt. He suspected it might be more than the £97 at stake.

There is, however, a serious HR point lurking beneath the celebrity intervention.

Employers are generally entitled to recover genuine accidental overpayments of wages. While someone remains employed, an overpayment is also one of the recognised exceptions to the usual restrictions on deductions from wages. But where employment has already ended and there are no further wages from which to make a deduction, the employer will normally need to ask the former employee to repay the money and, ultimately, consider a civil claim if they refuse. ACAS recommends explaining the overpayment and being fair and flexible about repayment.

Having a legal right to recover money does not mean it needs to be exercised at maximum warp speed.

A proportionate first letter explaining what has happened, apologising for the employer’s error and inviting the individual to discuss repayment is likely to achieve more than an immediate threat of debt recovery, particularly where the sum is modest.

In this case, Aldi subsequently apologised for the concern caused and confirmed that it would not pursue the money after all.

Perhaps the HR lesson is simple: before sending the stern template letter, consider whether a more human approach might help everyone to live long and prosper.