Employment Law Digest April 2026: Case law update

Appeals: when an otherwise fair dismissal becomes unfair

In Milrine v DHL Services Limited:

• Mr Milrine was employed as an HGV driver. He went on sick leave in January 2020 with anxiety, depression and vertigo. His symptoms later extended further to headaches and migraines.
• While on sick leave he self-reported to the DVLA who revoked his HGV licence for 1 year. The employer considered whether he could be assigned non-driving duties but his symptoms did not permit this.
• He was referred to occupational health and after meeting with his manager it was agreed to wait for the results of a planned NHS neurology consultation before deciding what to do.
• After the neurology appointment in February 2022 there was still no clear prognosis.
• He was referred for another occupational health appointment. The advice was that there was no realistic prospect of him returning to driving duties for at least a year and that he was not fit to perform alternative duties, but that there were still treatment options left to explore including his response to new medication.
• By May 2022 there had still been no improvement and at a meeting in June 2022, Mr Milrine accepted that there was nothing more the employer could do for him; he wanted to return to work but felt that, in his current condition, he would be a “liability”. The manager accepted that the situation was beyond his control, but decided that it could not go on. She concluded that there was no reasonable prospect of him returning to driving duties or being fit to perform alternative duties within a reasonable timescale, while also having regard to the ongoing cost of covering his role with agency drivers. Mr Milrine was dismissed with notice for medical incapability.
• Mr Milrine appealed against his dismissal on 3 broad points: that he had been disadvantaged by the delay in his treatment (due to the Covid-19 pandemic); that insufficient time had been given to test the efficacy of his new medication; and that his manager lacked authority to dismiss him under the terms of the collective agreement.
• The employer’s handling of the appeal, which was intended to be a rehearing, was strikingly flawed.
• The nominated appeal manager declined to hear the appeal insisting that the appeal should be kept within the same division as Mr Milrine. As a result, he did not acknowledge Mr Milrine’s letter of appeal or reply to him.
• The replacement appeal manager did not attend the rescheduled hearing, leaving Mr Milrine and his union representative waiting on site. The HR business partner then told Mr Milrine that she would leave it for him to choose the appeal manager and propose dates but did not confirm this to him in writing.
• When Mr Milrine commenced Acas early conciliation he believed this prevented the continuation of his internal appeal. The employer did not write to him to clarify matters or check his intentions. The internal appeal never took place.

The employment tribunal (ET) dismissed Mr Milrine’s unfair dismissal claim. The ET focused almost exclusively on the procedure prior to the internal appeal and concluded that a reasonable process had been followed. It criticised the procedural failings by the employer at the appeal stage but reasoned that Mr Milrine had been offered an appeal but did not pursue it. It found that the dismissal was fair.

Mr Milrine appealed to the Employment Appeal Tribunal (EAT). He contended that the ET made an error in finding the dismissal to be fair while relegating its criticisms of the appeal process to mere remarks about its approach falling below standards of good industrial practice.

The EAT allowed Mr Milrine’s appeal, finding that:

• The ET had failed to apply the principle established in various authorities that a defective appeal process may render a dismissal unfair.
• The more striking the defects at the stage of an internal appeal, the more it is incumbent upon an ET to demonstrate in its decision why it has decided that a dismissal was, overall, fair.
• The employer’s indecision about the identity of the decision-maker at the appeal stage, and the absence of written confirmation to Mr Milrine about what he was supposed to do, fell very far short of good industrial relations practice.
• Whilst in some cases, it can properly be concluded that an appeal would have been futile, such that a failure to offer an appeal would not make the dismissal unfair, there was nothing in the ET’s judgment to suggest that it considered the internal appeal would have been futile or devoid of sensible challenge.
• The employer’s approach to the appeal took its overall decision to dismiss outside the band of approaches open to a reasonable employer. Given the severity of the defects, the only proper conclusion was that the dismissal was unfair. A finding of unfair dismissal was therefore substituted in place of the ET’s original finding that the dismissal had been fair.

This case reminds employers that a properly managed appeal process is just as important as the dismissal process in establishing an overall fair dismissal.

Seconded employees

The case of Bank of Africa UK plc v Hassani highlights the importance of having clear written agreements in place setting out the terms of any secondment:

• The claimant was employed by the Bank of Africa’s parent company (“BMCE”) from March 2013.
• In September 2016, she was seconded by BMCE to work for the Bank of Africa in London. The secondment was regulated by a secondment agreement and secondment letter, both of which stated that she remained an employee of BMCE during the secondment.
• The secondment was brought to an end in 2021, and the claimant returned to a position with BMCE.
• She brought complaints against the Bank of Africa and two of its employees of sex discrimination, race discrimination, harassment, victimisation, whistleblowing detriment, ordinary unfair dismissal and automatically unfair dismissal for the reason of whistleblowing.
• An employment tribunal (ET) found that her employment had transferred to the Bank of Africa on 8 January 2021 and that she had thereafter been subjected to various detriments due to her whistleblowing.
• The respondents appealed against those conclusions on a number of grounds.

The Employment Appeal Tribunal found that:

• The conclusion that the contract of employment had transferred to the Bank of Africa was wrong in law. Nothing in the ET’s findings of fact suggested that any party ever applied its mind to an express transfer or novation of the claimant’s employment contract to the Bank of Africa. On the facts found by the ET, the only possible conclusion was that the contract remained with BMCE. Accordingly, the complaint of automatically unfair dismissal against the Bank of Africa should have been dismissed.
• The ET had also made an error in its conclusions about key aspects of the whistleblowing detriment claims. As the Bank of Africa was not the employer, it could only be liable for detriment if it met the extended definition of “employer” (under s43K of the Employment Rights Act 1996) or if the Bank’s individual managers had acted as agents of BCME and with its authority. The part of the ET’s judgment that found the whistleblowing detriment complaint was set aside, and that aspect of the claim was sent back to a differently constituted tribunal to determine.

Discrimination: protected beliefs

The case of Ngole v Touchstone Leeds reminds employers that when dealing with cases concerning protected beliefs, decisions must not be made simply because an employee has a particular belief but rather it must be because the manifestation of that belief is objectionable and further, the employer must show that the action taken is proportionate:

• Mr Ngole applied for the role of discharge mental health support worker with Touchstone Leeds, a charity that provides mental health and well-being services.
• Touchstone’s evidence before the employment tribunal (ET) was that it was committed to promoting equality, diversity and inclusion and had a strong track record of specifically adapting and tailoring its services to the LGBTQI+ community. About a third of its workforce and approximately 12% of service users were from the LGBTQI+ community.
• Mr Ngole was invited to attend an interview and was subsequently offered the post, subject to the provision of satisfactory references.
• Because of difficulties with the references provided, Touchstone carried out a Google search of Mr Ngole’s name and found news stories about a claim he had brought against Sheffield University. He had been removed from a course at the university because of Facebook posts from 2015 in which he had expressed views against same sex marriage and homosexuality.
• Touchstone decided that Mr Ngole held views that were not “seemingly in alignment with Touchstone’s vision, values and ethos”. They withdrew the conditional job offer.
• When Mr Ngole challenged the decision, he was invited to a further meeting, following which he was notified that the decision to retract the conditional offer of employment stood on the basis that Touchstone did not feel assured that he would be able to support service users from the LGBTQI+ community and due to concerns that service users would encounter his views posted online which they could find upsetting and offensive and exacerbate their symptoms.

Mr Ngole brought complaints of direct belief discrimination. The ET found that the withdrawal of the job offer did amount to direct discrimination but his complaints that he had been required to attend a second interview and that the decision had been taken not to reinstate the job offer did not.

Mr Ngole appealed to the Employment Appeal Tribunal, which found that:

• The ET, having identified a number of reasons for the treatment, failed to identify, for each act, the reasons why Touchstone acted as it did, and then to analyse each reason separately.
• Where it is asserted that a person has been subjected to detriment, or dismissed, because of an inappropriate manifestation of a protected belief it may be helpful to ask:
  • what is the reason for the treatment
  • in respect of each reason:
    • was it genuinely an objection to the manifestation of the belief rather than the holding of the belief itself – if it was merely the holding of the belief the treatment cannot be justified.
    • if the reason for the treatment was the manifestation of the belief, was there something objectionable or inappropriate in the manifestation of the belief – if not the treatment cannot be justified.
    • if the reason for the treatment was something objectionable or inappropriate in the manifestation of the belief, was the treatment a proportionate means of achieving a legitimate aim.
  • The EAT noted that to the extent that the decision to call Mr Ngole to the second interview was because of a concern that service users might have reacted badly merely to the fact that he held the religious beliefs in question, that would be treatment because of the belief and not capable of justification.
  • The case was sent back to the ET to reconsider the reasons for the treatment.