Recent Case Law October 2026

Can market forces justify unequal pay?

An employer can use market pressure to explain a pay gap if it has evidence for the higher rate. The Employment Appeal Tribunal reached that decision on 7th September 2026 in Next Retail Ltd v Thandi [2026] EAT 130. Next won its appeal about basic pay.

Most of the shop workers were women, while most warehouse workers were men. The shop workers received lower hourly pay. Next showed that it needed the higher warehouse rate to recruit and keep enough staff. The Employment Appeal Tribunal said the original tribunal had focused on the wrong question by asking whether Next could afford to raise shop pay. Employers should keep vacancy figures, staff turnover records, pay reviews and other evidence showing why a higher rate was needed.

What reason caused the dismissal?

A tribunal must find the actual reason why an employer dismissed someone. Calling the reason “misconduct” may be too vague. The Employment Appeal Tribunal made that point on 3rd September 2026 in Kristensen v Portman Healthcare Ltd [2026] EAT 127, allowing parts of the employee’s appeal.

Mr Kristensen claimed unfair dismissal and said his employer had treated him badly because he had raised concerns at work. The tribunal did not decide which acts or beliefs led to the dismissal. The Employment Appeal Tribunal also said that the suspension and investigation could count as harmful treatment linked to his concerns. It sent parts of the case back to the same tribunal. Employers should state the exact reason for dismissal in the decision letter and meeting notes.

Must investigation notes be accessible?

An employer may need to change an investigation process when a disability makes it hard for an employee to check the evidence. The Employment Appeal Tribunal considered that issue on 15th September 2026 in NSL Ltd v Bean [2026] EAT 132.

Mr Bean has dyslexia. His employer asked him to sign handwritten notes from an investigation meeting. The Employment Appeal Tribunal upheld the findings of unfair dismissal and failure to make reasonable adjustments. It sent other discrimination issues back because the original tribunal had not dealt with each legal test separately. Employers should ask whether the format creates a barrier and offer an accessible version before asking an employee to approve investigation notes.

When can performance management become harassment?

A manager can raise genuine performance concerns, but the way the manager does so may amount to disability harassment. The Employment Appeal Tribunal dismissed the employee’s appeal on 21st September 2026 in Harkins v Marks and Spencer plc [2026] EAT 131.

Mrs Harkins said that her employer had harassed her because of her disability and had failed to make reasonable adjustments. The Employment Appeal Tribunal upheld the original decision against her. It explained that a tribunal must look at how the employee saw the conduct and whether that reaction was reasonable in the circumstances. Employers should discuss performance in private and adjust the process when they know that a mental health condition may affect the employee.

When are aggravated damages available?

A tribunal can award aggravated damages only when the employer’s behaviour caused extra distress beyond the harm covered by the main injury-to-feelings award. The Employment Appeal Tribunal applied that rule on 16th September 2026 in Khans Solicitors v Kaiser [2026] EAT 137.

Ms Kaiser had won several claims, including unfair dismissal and discrimination. The Employment Appeal Tribunal said the employer’s status as a firm of solicitors did not justify a higher award. Compensation must reflect the harm caused and must not pay for the same injury twice. Tribunals must identify the extra distress caused by the behaviour before adding aggravated damages.