Employment Case Law Update | Autumn 2026 – Unfair Dismissal, Equal Pay and Discrimination 

Several significant employment law decisions have been handed down in recent months, covering issues including part-time worker protection, freedom of speech, philosophical belief discrimination and equal pay. Below, we highlight some of the key decisions and the practical lessons employers may wish to consider.

Augustine v Data Cars Ltd [2026] UKSC 30 (less favourable treatment for part-time workers)

Under regulation 5(1) and (2)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR“), a part-time worker “has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker… on the ground that the worker is a part-time worker“.

Regulation 5(3) PTWR, states that: “In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”

Background to the case

Mr Augustine was employed by Data Cars as a part-time private hire driver working on average 34.8 hours per week (his full-time comparator worked over 90 hours per week on average). All drivers were required to pay to Data Cars a ‘circuit fee’ of £148 per week to access its database.

Mr Augustine complained that imposing the flat fee on both full- and part-time drivers was contrary to regulation 5 PTWR.

The original employment tribunal accepted Mr Augustine’s’ part-time status but dismissed his claim on the following bases:

• all drivers paid the same fee and, as such, he had been treated the same, and not less favourably, than a comparable full-time worker; and
• even if this was an example of less favourable treatment, such treatment was not solely on the grounds that Mr Augustine was a part-time worker.

The decision (EAT and Court of Appeal)

Last year, the EAT considered two central questions in its decision:

1. Could the application of uniform polices, or treating everyone the same, amount to less favourable treatment?
2. Does the purported less favourable treatment have to be on the sole ground that the employee was a part-time worker, or could their part-time status merely be an effective and predominant cause of any less favourable treatment?

The EAT allowed the appeal in respect of the first question. The EAT concluded that treating someone the same as others could amount to less favourable treatment, taking into account the pro-rata temporis principle outlined in regulation 5(3) PTWR and EU Directive 97/81.

For the second question, however, the EAT dismissed the appeal and upheld the original employment tribunal’s finding that regulation 5 PTWR did not apply to Mr Augustine’s claim. The EAT agreed that the test should be widened to consider whether a worker’s part-time status was the “effective and predominant cause” of the less favourable treatment.

The EAT also agreed that the focus when applying this test should be on the employer’s reason for imposing a flat fee rather than any perceived intention to treat part-time workers less favourably. On that basis, the EAT found that Mr Augustine had been treated less favourably. However, the EAT held that they were bound by a decision in the Inner House of the Court of Session in Scotland to accept that part-time status must be the sole cause of the less favourable treatment.

The EAT’s conclusion on the second question was appealed and passed on to the Court of Appeal.

The majority in the Court of Appeal mirrored the EAT’s reasoning. The Court of Appeal agreed that the question should be whether part-time status was the effective cause of less favourable treatment and, applying this question, that Mr Augustine was treated less favourably. However, the court accepted the Court of Session’s interpretation of the test (‘was part-time status the sole ground for less favourable treatment’) as binding and therefore dismissed the appeal.

Mr Augustine was permitted to appeal to the Supreme Court.

The decision (Supreme Court)

The Supreme Court granted the appeal and decided that, for regulation 5 PTWR to apply, the worker’s part-time status must be an effective cause of any less favourable treatment.

The Supreme Court held that widening the test was the correct interpretation and consistent with the development of UK discrimination legislation. Part-time status need not be the sole cause.

Key takeaways for employers

This decision finally resolves the question as to whether the correct test centres around ‘sole cause’ or ‘effective cause’.

This brings welcome clarity but confirms that employers should consider whether:

• imposing uniform policies, workplace arrangements or practices such as pay, benefits, charges and holidays may result in less favourable treatment to part-time staff; and
• it would be possible to use a pro-rata approach to ensure all staff are treated equitably and, if not, how to objectively justify any different treatment.

Identifying other reasons for treatment will also be relevant to support a justification.

Employers may wish to review policies that apply uniformly across the workforce to ensure they do not disadvantage part-time workers in practice.

Russell Cherrington v University of Derby [2026] EAT 107 (unfair dismissal and freedom of speech: the relevance of human rights)

Section 98(4) Employment Rights Act 1996 states that: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.

Article 10(1) of the European Convention on Human Rights (“ECHR”): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.

Background to the case

Mr Cherrington was employed by the University of Derby as a lecturer. He was suspended and then summarily dismissed in May 2024 for gross misconduct after making inappropriate comments which students complained were of a “misogynistic”, “transphobic” and “homophobic” and “ableist” nature and which were found following an investigation to breach the University’s policies.

Mr Cherrington appealed the dismissal decision, claiming it was disproportionate and breached the Higher Education (Freedom of Speech) Act 2023 (“HEFSA 2023”). His internal appeal was rejected.

Mr Cherrington then brought a claim against the University for unfair dismissal. The primary basis for his claim was that the disciplinary process was unfair. He did not refer to Article 10 ECHR in his claim or any associated documents or submissions at the hearing. He did mention that the grounds of his disciplinary appeal focused on academic freedom under HEFSA 2023.

The employment tribunal dismissed the claim. It held that the dismissal fell within the range of reasonable responses and was not procedurally unfair.

Mr Cherrington appealed the decision, which was brought to the EAT. In his appeal, he argued that the tribunal erred in its judgement by failing to interpret the procedural fairness part of the unfair dismissal test in accordance with Article 10 ECHR, which protects academic freedom of expression. Mr Cherrington’s alternative argument was that the Article 10 ECHR point should be allowed as part of his appeal as an exception.

The decision (EAT)

The EAT dismissed the appeal. The employment tribunal was not required to take Article 10 ECHR into account, unless Mr Cherrington expressly relied on it (he accepted that he did not), or the tribunal prompted to do so by its own initiative because the issue clearly “shouts out” from the pleaded case and/or the way in which the case was presented.

In addition, it was emphasised that Mr Cherrington’s appeal did not criticise the tribunal’s decision that the dismissal was fair other than in relation to the Article 10 ECHR procedural point.

Key takeaways for employers

• Employment tribunals do not have a general affirmative duty to consider human rights in unfair dismissal cases “as a matter of course” where the parties have not pleaded or relied on them.
• Tribunals are also not required to consider the potential impact of Article 10 ECHR in every case about dismissals related to a person’s speech.
• An exception may arise where a human rights issue “shouts out” from the claim form or consideration is necessary to satisfy the fundamental duty of fairness.
• This judgement makes clear that Article 10 ECHR may be relevant in some dismissal situations with a freedom of speech element, but the issue must be expressly raised, or obvious enough from the way in which the claim is brought or argued, to be considered.

University of Bristol v Miller (philosophical belief discrimination and unfair dismissal)

This case considered the interaction between philosophical belief discrimination, freedom of expression and unfair dismissal.

Background to the case

Dr Miller was employed by the University of Bristol as a professor of political sociology from 1 September 2018 until 1 October 2021 when he was summarily dismissed for the stated reason of gross misconduct.

Dr Miller’s research had a particular focus on the Zionist movement. On 13 February 2021, Dr Miller made public comments including at an online event entitled “Building the Campaign for Free Speech” on 13 February 2021, a comment to the Jewish Chronicle on 17 February 2021, and an email to a student on 18 February 2021.

In these communications, Dr Miller expressed views that Zionism was “the enemy we face here is Zionism”, “deliberately fostering Islamophobia”, stated “it’s a question of how we defeat the ideology of Zionism in practice” and “end settler-colonialism in Palestine and to end Zionism as a functioning ideology of the world”.

Further, following this speech, the claimant was accused of antisemitism on Twitter, whereby he posted “Jewish students on British campuses being used as political pawns by a violent, racist foreign regime engaged in ethnic cleansing.”

Following this, the claimant sent an email to one of the university’s students, Mr Ben Bloch, stating “Zionism is and always has been a racist, violent, imperialist ideology premised on ethnic cleansing. It is endemically an anti-Arab and Islamophobic ideology. It has no place in any society.”

The claimant also made comments about Jewish student groups being “political lobby groups” and students being used as “political pawns”.

The university received a significant volume of correspondence about Dr Miller’s comments, including demands that disciplinary action be taken against him. The university appointed Professor Banting to investigate and Ms McColgan KC as an independent investigator. Although Ms McColgan KC concluded there was no formal case to answer, Professor Banting recommended disciplinary proceedings.

Professor Norman conducted the disciplinary hearing and dismissed Dr Miller for gross misconduct, stating the following

“In all of the circumstances, whilst you are fully entitled to your views and beliefs, I do not believe that you have shown sufficient responsibility, diligence and care both in the various statements that you have made and the manner and way in which you have made them.”

His appeal was unsuccessful. Dr Miller brought claims of direct philosophical belief discrimination, harassment, unfair dismissal and wrongful dismissal.

The decision

The employment tribunal found that Dr Miller’s beliefs about political Zionism (that it is inherently racist, imperialistic and colonial and ought to be opposed) were protected philosophical beliefs under section 10 EqA, as they satisfied all five elements of the Grainger criteria (these set out by the important case of Grainger PLC v Nicholson), in that they:

1. were genuinely held by him;
2. were not merely opinions based upon the present state of information;
3. related to a weighty and substantial aspect of human life and behaviour;
4. attained the requisite degree of cogency, coherence, cohesion and importance; and
5. were worthy of respect in a democratic society.

The tribunal concluded that Dr Miller’s expression of his anti-Zionist beliefs in the February 2021 comments had a material impact on the decision to dismiss him, making the dismissal an act of direct discrimination, so causation was established.

Further, the tribunal concluded that the restrictions to Dr Miller’s right to manifest his beliefs were protected by law in the university’s Free Speech Code of Practice, Diversity and Inclusion Policy and Ordinance 28.

The dismissal was also held to be unfair under section 98 ERA and wrongful at common law and stated

“The University, as an academic institution, ought to be prepared to face and to weather criticism and reputational damage which flows from the exercise by its academics of their rights to speak and think freely and lawfully on areas within or connected to their research and expertise. Overall, dismissing the claimant has not materially protected the University’s reputation. We conclude that a less intrusive means than dismissal could have been used by the University without unacceptably compromising the achievement of its objectives.”

However, the employment tribunal reduced the basic and compensatory awards by 50% due to contributory fault, finding that Dr Miller’s comments about students and student societies were “culpable and blameworthy” and contributed to his dismissal.

The tribunal further found a 30% chance that Dr Miller would have been fairly dismissed by October 2023 due to further comments made on social media in August 2023 (Polkey reduction).

The university appealed on multiple grounds. The employment appeal tribunal dismissed the appeal, holding that:

1. the Tribunal had not erred in concluding that Dr Miller’s beliefs qualified for protection;
2. there was no error in the Tribunal’s causation analysis;
3. the Tribunal’s proportionality assessment was “within the legitimate parameters of judgment open to it”; and
4. the 50% reduction for contributory fault was appropriate.

The cross-appeal was also dismissed.

However, the EAT allowed ground 9 of the appeal, finding insufficient reasoning for the 30% Polkey reduction:

“it is not clear to us on what basis the Tribunal concluded that there was a chance of a lawful dismissal as a result of the August 2023 Tweets or, if there was, that the degree of that chance was 30%”. This issue was remitted for redetermination.

Key takeaways for employers

This case provides important guidance on the protection of philosophical beliefs in the employment context.

Political beliefs that relate to “fundamental problems” of social importance can qualify for protection under section 10 EqA, even if they are controversial or offensive to others. The bar for the fifth Grainger criterion (worthy of respect in a democratic society) is low – only beliefs akin to totalitarianism or advocating violence in its gravest forms will be excluded.

When considering causation in belief discrimination claims, tribunals must examine whether the manifestation of a protected belief had a “material impact” on the employer’s decision, applying the “because of” test under section 13 EqA.

Employers, particularly universities, must balance the importance of protecting academic freedom and free speech against their legitimate aims of protecting reputation and the rights of others.

The employment tribunal stated:

“The University, as an academic institution, ought to be prepared to face and to weather criticism and reputational damage which flows from the exercise by its academics of their rights to speak and think freely and lawfully on areas within or connected to their research and expertise.”

Comments directed at students and student groups may be separable from the manifestation of protected beliefs and can still constitute culpable conduct warranting some disciplinary sanction.

As the tribunal noted: “It was clearly open to the claimant to articulate his views about Zionism without reference to students and student societies.”

Next Retail Ltd v Thandi (equal pay)

This case considered the application of the material factor defence in equal pay claims and the correct approach to justification.

Background to the case

The claimants were 3,540 retail sales consultants working in Next’s shops who brought equal pay claims, arguing they were paid less than the comparators, all of which were warehouse operatives.

An earlier employment tribunal decision dated 2 June 2023 had established that the claimants’ work was of equal value to that of their comparators.

Over the relevant period (2012-2023), 77.5% of retail consultants were female compared to approximately 47-53% of warehouse operatives. Further, 47% of the female workforce worked part-time compared with 21% of the male workforce.

The hourly basic pay difference was £0.92 in 2012, reducing to £0.38 by 2023 due to national living wage increases.

Next relied on five material factors to justify the pay differential, including

1. Market forces
2. Recruitment and retention of warehouse staff,
3. Maintaining 24/7 warehouse operations
4. Incentivising productivity and attendance, and
5. Overall business viability.

The claimants contended that reliance on market forces perpetuated historic sex discrimination in pay rates, including the appeal of store work to female workers and the preponderance among them of part-time workers who earned a secondary income to support the main household breadwinner, and that Next had not shown that it had not been influenced in any way by these factors.

The decision

The employment tribunal found there was no direct discrimination – the difference in pay was driven by cost considerations rather than any “conscious or subconscious influence of gender” and “the drive and imperative was to reduce cost and enhance profit.”

However, the tribunal found that the claimants had established “particular disadvantage” under section 69(2) based on:

• the statistical gender disparity between the groups;
• benchmarking against a largely male-dominated warehouse market; and
• the preponderance of part-time workers in retail.

Regarding justification, the tribunal found that paying the market rate to warehouse staff was “costs only” with no legitimate “costs plus” element and was therefore not a proportionate means of achieving a legitimate aim.

The section 69 defence failed for basic pay and six other terms, though it succeeded for nine terms including certain bonuses and premiums tied to specific operational needs.

Next appealed. The “essence” of the appeal was described as:

“that the Employment Tribunal wrongly found that NEXT should have paid Retail Sales Consultants the same Basic Pay as Warehouse Operatives, to whom a completely different rationale for paying more applied, effectively because NEXT could afford to do so.”

The employment appeal tribunal allowed the appeal in part. It held that the tribunal erred in characterising Next’s aim as “costs only”. The aim, taken as a whole, of paying higher rates to warehouse staff included recruitment and retention factors which did not apply to retail staff.

Importantly, the EAT held that Next was not required to justify not increasing the claimants’ pay to the same level – the focus should have been on the reason for the comparators’ higher pay.

The EAT found that on the tribunal’s own findings, the pay differential for basic pay was a proportionate means of achieving a legitimate aim.

The cross-appeal on direct discrimination was dismissed.

Key takeaways for employers

This case clarifies important principles regarding the material factor defence in equal pay claims.

When assessing legitimate aim tribunals must make a “fair characterisation of the employer’s aim taken as a whole”. An aim of paying higher rates to attract and retain staff in a competitive labour market is legitimate, even if it coincidentally preserves higher pay in a sector that was historically male-dominated.

The “costs only” versus “costs plus” distinction requires careful application. Where an employer pays higher wages to one group due to genuine recruitment and retention pressures that do not apply to another group, this is not simply a desire to save costs.

In assessing proportionality, the focus should be on why the comparators were paid more, not on whether the employer could have afforded to equalise pay by increasing the claimants’ wages.

Statistical evidence of gender disparity between claimant and comparator groups can establish “particular disadvantage” under section 69(2), especially when combined with benchmarking practices that reflect a male-dominated labour market and evidence of the childcare disparity affecting women’s working patterns.

What should employers be doing now?

These decisions provide useful guidance on a range of employment law issues, from equal pay and discrimination to disciplinary decisions and workforce management. Employers may wish to review existing policies, practices and decision-making processes to ensure they remain aligned with current legal developments.

If you would like advice on how any of these cases could affect your organisation, our employment team would be happy to help.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.