Employment Edit: 28 May 2026

Legal updates

Protected conversations

The EAT has confirmed that tribunals must assess the whole context before excluding evidence from so called “protected conversations”. By way of a reminder, a protected conversation (sometimes referred to as a “pre-termination negotiation”) is an off-the-record discussion between an employer and an employee about ending employment on agreed terms. Evidence of these conversations is not admissible in an ordinary unfair dismissal claim unless there has been improper conduct.

The claimant brought claims of ordinary unfair dismissal, unlawful deduction from wages and less favourable treatment for being a part-time worker. Prior to the claimant’s dismissal, the respondent held a meeting with him which it said was a protected conversation. The claimant argued that there had been improper conduct as he was ambushed by the meeting, could not bring a companion and was threatened with redundancy if he refused the exit offer made. At first instance, the tribunal found that there had been no improper conduct and concluded that the fact and content of the meeting were inadmissible in relation to all the claimant’s claims.

On appeal, the EAT noted that the rule permitting evidence of protected conversations to be excluded only applies to ordinary unfair dismissal, so the tribunal was wrong to exclude the meeting from the claimant’s unlawful deduction from wages and part-time worker claims. It also said the tribunal had looked only at what was said during the meeting and had failed to consider the wider circumstances, including the way in which the meeting was called or the failure to allow the claimant a companion. The improper conduct issue will therefore be re-determined by the tribunal.

(Tarbuc v Martello Piling Ltd)

Single sex spaces

EHRC Draft Code

Last week, the Equality and Human Rights Commission’s (EHRC) updated draft Code of Practice for services was laid before Parliament. The Code provides guidance to service providers, public functions and associations on how the Equality Act 2010 applies to them. Notably it does not apply to employers (although see our comments below).

The EHRC has updated the Code to reflect developments in legislation and case law over more than a decade, including in relation to the legislation on same-sex marriage, case law on the definition of disability, the threshold for a philosophical belief to be protected and the Supreme Court’s judgment on the definition of ‘sex’ in the Equality Act in the case of For Women Scotland v The Scottish Ministers. We covered the For Women Scotland judgment in a previous edition of Edit (here).

Updates to the Code include further guidance for service providers on considerations that may be relevant to determining the proportionality of providing separate and single sex services, as well as the circumstances in which the provision of mixed-sex services may be appropriate. The Code also notes that it is good practice to record the reasons why a decision has been taken to provide (or not provide) a single-sex service, as well as having a policy in place setting out whether, and if so how, single-sex services will be provided.

Parliament now has 40 days to consider the updated Code. If there is no resolution to reject it in that period, an order can be made to bring it into force.

Whilst the Code applies to services, as opposed to employers, there are likely to be elements of the Code that may also provide useful guidance for employers in considering their obligations and approach to the provision of single sex facilities. In the meantime, the EHRC has stated that it will be looking to update its guidance for employers in due course.

Access to female only facilities  

In a judgment published this month, an employment tribunal considered whether the employer’s policy of permitting trans women to use female only facilities amounted to discrimination.

It was accepted in this case that the employer applied a policy of allowing trans women to access female facilities. The claimant, who is female and Muslim, raised concerns and subsequently brought tribunal claims alleging indirect discrimination (on the basis of sex, religious belief, and disability) and harassment (related to sex and philosophical belief).

The tribunal’s key findings include:

• The employer’s policy of allowing trans women to access female facilities amounted to indirect sex discrimination. In finding that the policy placed women at a disadvantage, the tribunal found that less discriminatory alternatives were available, including permitting trans colleagues to use alternative facilities if they do not wish to use the toilets of their biological sex. The tribunal noted, in particular, that a significantly higher proportion of the respondent’s staff were women and/or Muslim women, compared to colleagues who are transgender. Permitting trans colleagues to use the alternative facilities would therefore have had a lesser impact.
• The policy also amounted to harassment related to sex and philosophical belief (namely, the claimant’s gender critical belief).
• The respondent had carried out an inadequate balancing exercise, and had not given sufficient consideration to the impact of its policy on women and Muslim women. While the respondent had consulted with its LGBT, disability and BAME networks about its policy, it had not consulted with its women’s staff networks or networks for employees of faith.

As this is a first instance decision, it is not binding on other tribunals. Also, there have been a number of cases looking at similar issues in recent months, which we have covered in previous Edits, and this case should be considered alongside the decisions in those cases. However, the cases make it clear that it is essential for all organisations to carry out a thorough balancing exercise and to document their thinking to support the approach they are taking in relation to the provision of toilet and changing facilities. This is a developing and highly fact-sensitive area and one which we have been advising a range of organisations on how best to navigate. If you have any queries, please get in touch with your usual Burges Salmon contact or contact Katherine Flower.

(LS v NHS England)

Flexible working for disabled employees

The Women and Equalities Committee has launched an inquiry into flexible working access for disabled people.

WEC notes that a shift in workplace culture since the Covid-19 pandemic has resulted in greater acceptance of flexibility around hours, shift patterns and where individuals work. The inquiry is set to explore why these increased options for flexibility have not yet had a substantial impact on the employment rate of disabled people and the disability employment gap.

As part of its work, WEC will consider what impact the flexible working reforms in the ERA 2025 – which will mean an employer can only refuse a flexible working request where it is “reasonable” for it to do so on one or more statutory grounds – will have on disabled workers and jobseekers. WEC will then look to identify any further legislative or policy steps that the government could take to increase disabled people’s access to flexible working. This call for evidence is open until 26 June 2026.

Religion or belief discrimination

The EAT has provided useful guidance on how a tribunal should determine whether to draw an inference that an action of an employer was done because of a protected characteristic (such as religion or belief).

The claimant was employed by a Catholic diocese as Head of Finance. During her adoption leave, her employer reacted negatively to her request to work flexibly on her return and raised concerns about errors in the accounts which it said had come to light during her leave. She was suspended and then dismissed for gross misconduct. She brought employment tribunal claims, including unfair dismissal and direct religion or belief discrimination.

The tribunal found that there were serious procedural failings with the disciplinary processes that led to the claimant’s dismissal, including an unbalanced investigation and a rushed disciplinary hearing. As well as upholding her complaints of unfair dismissal and wrongful dismissal, the tribunal also found that some of the claimant’s complaints of discrimination related to her lack of Catholic faith.

On appeal, the EAT found that the tribunal’s reasoning on religion and belief discrimination was flawed. The tribunal had noted that the treatment of the claimant was mostly due to her manager’s antagonism towards her after her flexible working request. Having identified failings by that manager and an HR adviser, the tribunal did not explain why their failings led to an inference that the investigating manager had discriminated against the claimant because of her lack of Catholic belief. The fact that the investigating manager treated the claimant unfairly was not enough to suggest such a connection. The case has been sent back to the tribunal to reconsider whether the conduct complained of was because of the claimant’s lack of Catholic belief.

(Clifton Diocese v Parker)

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