Case law update (June 2026): Protected conversations, drug testing & dismissal

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

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

• Are ‘protected conversations’ actually protected?
• Drug testing & the Equality Act
• Discrimination claims: Clarifying the burden of proof
• The importance of clearly identifying the reason for dismissal

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Case 1 – Are ‘protected conversations’ actually protected?

Tarbuc v Martello Piling Ltd relates to an Employment Appeal Tribunal (EAT) decision on the limits of “protected conversations” under section 111A of the Employment Rights Act 1996.

Mr Tarbuc was dismissed in what the employer said was a redundancy process. Before dismissal, he attended a meeting with the managing director to discuss redundancy and a possible settlement.

He argued that the conversation should not be protected because he had been taken by surprise, denied the chance to bring a companion, and put under pressure to accept the proposal.

The EAT held that the original tribunal had erred in two important ways. First, section 111A applies only to ordinary unfair dismissal claims. It could therefore not automatically exclude evidence of the meeting in relation to Mr Tarbuc’s other claims, including unlawful deduction from wages and less favourable treatment as a part-time worker.

Secondly, when deciding whether there had been improper conduct, the tribunal should have looked at the whole context of the meeting – not just the words used and their tone. The case was sent back for reconsideration.

What does this mean for me?

The decision is significant because it warns employers that pre-termination discussions are not a universal shield. If such meetings are handled unfairly or without proper care, the protection may be limited depending on the circumstances, and these may become central to the tribunal’s assessment.

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Case 2 – Drug testing & the Equality Act

In Truman v SPL Powerlines UK Ltd (‘Powerlines’) & Others, the EAT considered how disability discrimination law applies where a worker in a safety-critical industry uses prescribed medical cannabis.

Mr Truman had genetic haemochromatosis – a condition that causes chronic pain, especially in the joints. He was prescribed medical cannabis to help him manage his symptoms.

Following a successful career in the rail industry, he applied for a role with Powerlines. The role he applied for was a safety-critical role, meaning – in accordance with a policy imposed by Network Rail – Mr Truman was required to take a drug and alcohol test. The result of his test was a ‘fail’.

The policy terms provided for a fail to be recorded as a ‘pass’ if the Medical Review Officer was satisfied that there was a legitimate medical need for the quantity of the substance found. The fail, however, was upheld by Powerlines and Mr Truman was banned by Network Rail from working in rail industry safety-critical work for five years.

Mr Truman brought claims for disability discrimination at the Employment Tribunal (ET). Although the tribunal found that if the policy had been applied correctly, Mr Truman’s positive cannabis test should have been treated as a pass because of his lawful prescription, but his claims were initially dismissed.

On appeal, the EAT confirmed that Network Rail could be treated as a qualifications body under the Equality Act 2010 and upheld the finding that the testing requirement formed part of a competence standard. However, it held that the tribunal had used the wrong comparator when analysing disadvantage to Mr Truman and the reasonable adjustments claim. Parts of the case against Network Rail were then sent back for reconsideration. The claims against Express Medicals remained unsuccessful.

What does this mean for me?

The case highlights the need for employers and industry gatekeepers to apply drug-testing policies carefully and consistently, and with proper regard to disability-related medication and the Equality Act.

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Case 3 – Discrimination claims: Clarifying the burden of proof

Miss Parker was employed as head of finance by the Clifton Diocese. Following a breakdown in working relationship which included issues around flexible working after adoption leave, she was dismissed.

Miss Parker brought a claim for unfair dismissal and, as a non-Catholic, alleged religion or belief discrimination and harassment under the Equality Act 2010.

The ET upheld both claims, finding that her lack of religious belief constituted a protected characteristic and that she had been subjected to unlawful treatment.

On appeal, the EAT upheld the finding of unfair dismissal but overturned the findings on discrimination and harassment, remitting those issues to a newly constituted tribunal. The EAT held that the ET had erred by relying on general unfairness as evidence of discrimination, and by treating the absence of a proper explanation as indicative of discriminatory intent without sufficient analysis. The EAT emphasised that tribunals must adopt a structured approach, which includes:

• identifying who did what
• determining whether the facts could support an inference of discrimination
• and only then shift the burden to the employer.

What does this mean for me?

Organisations must ensure there is a genuine and fair reason for dismissal, supported by a clear and well-documented process. Crucially, claimants must establish a causal link between the protected characteristic and the treatment complained of.

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Case 4 – The importance of clearly identifying the reason for dismissal

Ms Chand, a long-serving employee, was dismissed for alleged gross misconduct following four incidents which her employer considered to be fraudulent. The ET found that there were no reasonable grounds for a belief in fraudulent activity, however it concluded that the dismissal was fair on the basis that one incident amounted to a serious breach of company policy.

This approach was rejected on appeal. The EAT emphasised that tribunals must identify the employer’s actual principal reason for dismissal, rather than substituting a different or narrower justification after the event.

In this case, the employer’s decision was based on a composite allegation of fraud across all four incidents. As that belief was not reasonably held, the dismissal could not be fair.

The decision reinforces that fairness is assessed by reference to what the decision-maker genuinely believed at the time, and whether that belief was supported by reasonable grounds. Employers cannot rely on alternative reasons that were not central to the dismissal decision.

What does this mean for me?

The key takeaway for organisations is to clearly identify and evidence the principal reason for dismissal, particularly in cases involving multiple allegations or dishonesty. Employers should ensure that investigations are thorough, decision-making is well documented, and that the rationale for dismissal is consistently applied and defensible.

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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