Case law update (February 2026): Inclusion policies, discrimination & compensation

Our employment law & business immigration experts delve into some recent case law that could prove relevant to you and your business.

In our February edition of Dispatches, we look into the following case law:

• Maritime & Coastguard Agency v Groom: Volunteer or worker?
• Hutchinson & Others v County Durham and Darlington NHS Foundation Trust: Inclusion policies
• Kisheva v Secure Frontline Services Ltd: Compensation deduction
• London Ambulance Service NHS Trust v Sodola: Race discrimination?

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Case 1 – Maritime & Coastguard Agency v Groom: Volunteer or worker?

Mr Groom served as a coastguard rescue officer. Although described as a ‘volunteer’, he was remunerated for certain activities. Following a disciplinary process, he was dismissed. Mr Groom claimed he had the statutory right to be accompanied to the hearing by a trade union representative – an entitlement available only to individuals who qualify as ‘workers’.

The Court of Appeal found that even though he was described as a volunteer, a binding contract can exist during each remunerated task, meaning worker status can arise on a per‑task basis.

Further, despite describing the role as voluntary, the presence of obligations, disciplinary procedures, payslips, itemised remuneration and P45s all indicated that he was a worker.

What should organisations do?

For organisations engaging volunteers, the message is clear – substance matters far more than labels. You should:

• Review volunteer agreements and handbooks
• Examine volunteer payment arrangements
• Update disciplinary and grievance processes.

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Case 2 – Hutchinson & Others v County Durham and Darlington NHS Foundation Trust: Inclusion policies

Eight female nurses at Darlington Memorial Hospital brought claims against their employer after a trans woman colleague (who was born male) was allowed to use the female staff changing room under the trust’s ‘transition in the workplace’ policy.

The nurses claimed that this situation made them uncomfortable, affected their dignity and privacy, and caused distress. They also felt the trust did not take their concerns seriously.

Tribunal decision

1. Harassment – The tribunal found that requiring the claimants to share a changing room with a “biological male, trans woman colleague” created a hostile and degrading environment that violated their dignity.
2. Breach of health & safety law – The tribunal held that the trust’s policy broke the Workplace (Health, Safety and Welfare) Regulations 1992, which requires employers to provide single‑sex changing rooms where needed.
3. Indirect sex discrimination – The policy put women at a disadvantage because it required them to undress in front of someone of the opposite biological sex.
4. Claims against the trans colleague – The tribunal made no findings of wrongdoing against the trans colleague.

It’s important to note that this is a first instance decision, so is not legally binding.

What should employers do?

This decision sends a clear message – inclusion policies cannot override legal duties to provide safe, appropriate, single‑sex facilities where required.

Employers should:

• Review changing room, toilet and similar policies to ensure that they comply with health and safety regulations, and consider the needs of all staff
• Offer suitable alternatives, such as private or gender‑neutral facilities to manage competing rights
• Take staff concerns seriously (the tribunal criticised the trust for dismissing complaints)
• Engage with staff, document concerns, and respond transparently.

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Case 3 – Kisheva v Secure Frontline Services Ltd: Compensation deduction

Ms Kisheva was a door supervisor with an excellent record. She left her shift early after an argument on duty which left her visibly upset. She informed her team leader before leaving but did not telephone management afterwards. She was summarily dismissed for gross misconduct, relying on an alleged requirement to make an immediate phone call. This requirement, however, was not found anywhere in its policies.

Employment Tribunal (ET)

The ET accepted that the dismissal was unfair because no meaningful investigation had taken place. However, it reduced her compensation by 100%, concluding that even if a correct procedure had taken place, she would have been dismissed because she had committed gross misconduct.

Employment Appeal Tribunal (EAT)

The EAT held that the ET’s conclusion was “perverse.” The employer’s handbook/policies did not classify leaving early or failing to telephone management as gross misconduct. Leaving site early was expressly listed as ordinary misconduct, and the requirement to call management was non-existent. The EAT confirmed that the gross misconduct finding and 100% reduction in compensation was not appropriate.

The case was remitted back to the tribunal to reconsider the compensatory award.

What should employers do?

This case highlights key principles employers must follow:

• Always carry out a full and thorough disciplinary investigation
• Ensure actions are fair, reasonable, and proportionate
• Don’t rely on unwritten expectations or informal practices for summary dismissal.

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Case 4 – London Ambulance Service NHS Trust v Sodola: Race discrimination?

Mr Sodola was an African employee who applied for a team manager position in April 2020. Due to scoring lower than the appointed candidates, he was unsuccessful. In addition to this, he was subject to considerable delays in receiving written feedback, and so brought a claim for race discrimination against the trust.

Employment Tribunal (ET)

The ET found that the delay in providing written feedback (of nearly three months) did amount to race discrimination.

Employment Appeal Tribunal (EAT)

This finding was rejected on appeal. The EAT held that the ET had relied on irrelevant considerations and that the facts did not logically support the ET’s inference that the delay was related to race. The EAT confirmed that poor practice alone does not automatically give rise to discrimination.

What should employers do?

As an employer, it is important to have a consistent process that all managers are aware of, to ensure that all employees are treated in the same way. Having consistent record‑keeping and timely communication helps employers to demonstrate legitimate, non‑discriminatory reasons for their actions, even in instances when things do go wrong.

If you and your business require expert guidance on how to navigate any issues you may have encountered, please get in touch – our team will be willing to help.

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