Employment Law Digest September 2026: Case law update

The right to be accompanied

In Wolfe v Taka Mayfair Limited: 

• Mr Wolfe had been employed by Taka Mayfair, a restaurant, as a head sommelier / manager. 

• Following the end of his shift, and without advance warning, Mr Wolfe was called to a meeting with the two new owners of the restaurant. 

• He was not provided with any explanation as to what the purpose of the meeting was or what might happen in it.  

• At the meeting, he was dismissed.  

Current legislation provides that where a worker is required to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at the hearing, the employer must allow the worker to be accompanied at the hearing by a companion chosen by the worker who is either a trade union official or work colleague.  

Mr Wolfe sought to claim in the Employment Tribunal (ET) that he had been denied the statutory right to be accompanied at this meeting.  

Mr Wolfe accepted that he had not actually requested to be accompanied to the meeting.  

He argued that the employer failed to make him aware of the nature or purpose of the meeting in advance, nor did he appreciate during the meeting that he might be dismissed until the point at which he was in fact dismissed. He argued that if the worker must “reasonably” request to be accompanied at the hearing, there should be an obligation on the employer to do so as well, and that it would not be reasonable for an employer to withhold from the worker the nature or potential outcomes of the meeting.  

The ET found that as Mr Wolfe had not requested to be accompanied, the statutory right was not triggered.  

Mr Wolfe appealed that decision and the Employment Appeal Tribunal dismissed his appeal: 

• A worker must make a reasonable request to be accompanied.  

• If they don’t, then the statutory right is not engaged and they cannot complain they have not been denied a right to be accompanied.  

• There is no generalised obligation on employers to act reasonably. 

The ET was obliged to apply the legislation as it is, and not as it may be argued that it should be. The EAT said that if this is a gap in statutory protection that ought to be filled then it is a matter for parliament to do so.  

Whilst a failure to tell an employee about their right to be accompanied will not amount to a breach of the legislation if the employee did not ask to be accompanied, employers should continue to be mindful of complying with the Acas Code of Practice on Disciplinary and Grievance Procedures where relevant, given the potential for an uplift in compensation, such as in an unfair dismissal claim for failure to observe the Code.  

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Take Me There

Freedom of expression

In Cherrington v University of Derby:  

• Mr Cherrington was a senior university lecturer in media and film.  

• He was summarily dismissed for gross misconduct, after a disciplinary hearing found that he had used inappropriate and unprofessional language when speaking to students.  

• The University found that he had used misogynistic, transphobic, ableist and other inappropriate and divisive language.  

He claimed unfair dismissal but an Employment Tribunal (ET) found that the reason for dismissal was misconduct, that the procedure followed was fair, and that in all the circumstances, dismissal fell within the range of reasonable responses open to a reasonable employer.  

Mr Cherrington appealed, arguing that the ET should have considered the potential impact of Article 10 of the European Convention of Human Rights (ECHR), which protects academic freedom of expression.  

He had briefly mentioned freedom of speech at the ET hearing but he did not specifically refer to this in his claim form or in his witness evidence or his submissions before the ET.  

He argued that the principle of academic freedom of speech must be protected to ensure that academic employees have the ability within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs. 

The EAT dismissed the appeal:  

• In the circumstances of this case, the Article 10 issue did not “shout out” from Mr Cherrington’s pleaded case and/or the way that he presented his case.  

• ETs are not required to consider the potential impact of Convention Articles “as a matter of course” in every unfair dismissal case, and are not required to consider the potential impact of article 10 in every case which is concerned with a dismissal for reasons related to speech.  

• He could not raise the article 10 argument on appeal when it had not been advanced as part of his case at the ET. 

Whistleblowing claims

In Jackson v The Chief Constable of Greater Manchester Police: 

• Mr Jackson was a long serving senior police officer for Greater Manchester Police.  

• He claimed whistleblower protection, alleging that he had made three protected disclosure reports to a prescribed person, the Independent Police Complaints Commission (“IPCC”), containing 19 protected disclosures (PDs). 

• The reports included complaints of cronyism in the promotion process leading to promotion to critical decision-making roles on the basis of friendships rather than ability, allegations of misconduct and cover ups. 

• As a result of making these reports, he claimed to have been subjected to detriment by his employer, culminating in his constructive dismissal, when he served notice of retirement. 

• The Employment Tribunal (ET) claim was vast. The final hearing took up 102 days of hearing (not including deliberation time) between November 2021 and May 2023. 

In a 381 page judgment, the ET found that:  

• none of the 19 PDs amounted to protected disclosures, so all his claims were dismissed; and  

• Mr Jackson was not, in any event, constructively dismissed.  

In his appeal to the Employment Appeal Tribunal (EAT), Mr Jackson argued that only selective passages he was relying on from within the three reports should be considered when deciding whether they amounted to protected disclosures. His appeal failed as the EAT found that: 

• Where Mr Jackson relied on selected passages in the reports he had submitted to the IPCC, the ET was entitled to consider material in those reports which was closely related to the passages relied on. The ET was not confined to the passages quoted in an agreed List of Issues where, in the interests of justice, it was necessary to consider what was the information disclosed in context and in the round. Mr Jackson could not fillet, or cherry pick, a small part of his disclosure, without the remainder of what he disclosed being subject to the relevant legal test. 

• Where a worker goes outside the employment relationship to make a protected disclosure (rather than making a disclosure to their employer), additional layers of responsibility are required on the worker. A worker who makes a disclosure to a prescribed person must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true. There must be a reasonable belief in the truth of more than “the gist” of the disclosure made. The ET was entitled to find that Mr Jackson lacked a reasonable belief in the substantial truth of important allegations or that the alleged qualifying disclosure requirements were not met. 

• It was not an error for the ET to treat delay and Mr Jackson’s conduct in raising matters through grievances as potentially relevant to whether he genuinely and reasonably held the statutory beliefs required or reasonably believed that the disclosures were made in the public interest.  

This case provides useful guidance for employers considering whistleblowing concerns and acts as a reminder that where a disclosure is made outside the employment relationship to an ‘outsider’, strong conditions are placed upon the disclosure requiring not only the information but each allegation under it to be substantially true.