Case law update (October 2026): Clawback provisions, part-time work & surprise disciplinary meetings

Our highly rated employment law & business immigration team look into a number of cases that could be relevant to you and your business.

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

• Training cost clawbacks: How far is too far?
• AI in the workplace: One to watch from the other side of the world
• What employers need to be aware of when it comes to digital payslips
• The importance of fair treatment & part-time workers
• Disability at work: Why employers need to look beyond the label
• Surprise disciplinary meetings: When does the right to be accompanied apply?

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Case 1 – Training cost clawbacks: How far is too far?

Mr Watts joined Geeks Ltd (“Geeks”) as a trainee quality assurance engineer in March 2019 on a starting salary of £18,000 per year. Alongside his employment contract, he signed a separate training investment agreement requiring him to repay £8,108, representing the employer’s estimated costs of mentoring, training and support during his initial training period. The repayment figure would only begin to reduce after he had completed 12 months’ service.

After approximately eight months, Mr Watts resigned to take up a new role with a salary of £30,000. Geeks sought repayment of the full £8,108 under the training agreement.

Although Geeks succeeded at first instance, the Court of Appeal held that the repayment provision was unenforceable. The court accepted that employers may have a legitimate interest in protecting their investment in employee training.

However, the clause went further than was reasonably necessary because it applied in almost all termination scenarios, regardless of the reason for leaving or what the employee did next. The substantial repayment obligation was also capable of deterring employees from moving to other employment, bringing it within the scope of the restraint of trade doctrine.

What should employers do?

When drafting training repayment provisions, employers should ensure that they:

• reflect genuine and identifiable training costs
• reduce over time to recognise continued service
• apply only in limited and appropriate circumstances, such as voluntary resignation shortly after training
• are proportionate to the employee’s salary and the value of the training received.

Importantly, the decision does not prevent employers from recovering genuine training costs. However, it confirms that clawback provisions must be carefully drafted and go no further than is reasonably necessary to protect the employer’s legitimate business interests.

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Case 2 – AI in the workplace: One to watch from the other side of the world

Although it has no bearing on UK law, an Australian employment law decision provides an interesting warning about the use of artificial intelligence (AI) in workplace disputes.

In this case, a caretaker brought a bullying complaint concerning defamatory emails and allegations that the chair of the organisation had kept a diary containing comments about her appearance. The Australian Fair Work Commission found that the underlying complaint was a serious one.

However, the commission was critical of the employee’s correspondence, noting that it “appeared to be prepared by AI.” It described the communications as lengthy, wide-ranging, repetitive and often framed in accusatory terms. The commission commented that it was “unsurprising” that the employer had stopped responding, finding that the excessive correspondence had obscured the genuine bullying allegations.

The decision serves as a useful reminder that, while AI can be a valuable drafting tool, parties should ensure that complaints remain focused, proportionate and tailored to the issues in dispute. Otherwise, there is a risk that the key concerns become lost amongst unnecessary volume and generalised allegations.

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Case 3 – What employers need to be aware of when it comes to digital payslips

Employment Rights Act 1996, Section 8: Itemised pay statement – “A worker has the right to be given by [their] employer… a written itemised pay statement.”

The decision of the EAT in Leedham v Royal Mail provides helpful clarification for employers on the requirement to be “given” a written itemised pay statement.

Contrary to Mr Leedham’s argument that he should be provided with a physical payslip, the Employment Appeal Tribunal (EAT) interpreted the word “given” in a purposive way.

The purpose in question is that there should be transparency of pay so that the employee is given the opportunity to understand and challenge their pay. To this purpose, electronic payslips are compliant where access to them is provided free of charge.

If Royal Mail has required Mr Leedham to pay to access his payslips because, for example, he had to use a smartphone with an app, that would not be consistent with the act. However, in this instance, Royal Mail provided free access for employees to view their payslips electronically, fulfilling the requirement to be “given” a pay statement.

The fact that Mr Leedham chose not to access his payslip in the way provided was not relevant to the point.

What should employers do?

Employers should ensure all employees have free access to their pay statements where they are not being provided physically. In practice, this means the employee should not be required to have their own laptop, smartphone or any other electronic device or need to subscribe to any service in order to view their payslip.

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Case 4 – The importance of fair treatment & part-time workers

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Section 5 – “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…”

In Augustine, the Supreme Court provided clarification on whether “ground” must be the sole ground or reason, or – more widely – just an effective cause.

Mr Augustine was a private hire car driver for Data Cars who worked fewer hours than other Data Cars drivers. All Data Cars drivers were charged a weekly fee to access its booking system, which was the same regardless of the hours worked.

Mr Augustine claimed that the requirement that he pays the same fee to access the booking system, even though he worked fewer hours and so earned less than other drivers, was discrimination contrary to Part-time Workers (Prevention of Less Favourable Treatment) Regulations (the Regulations).

The Employment Tribunal (ET) did not agree with Mr Augustine. The ET found that the reason Mr Augustine was charged the same fee as other drivers was not only because he was a part-time worker, but because Data Cars needed to earn revenue from its business. Part-time worker status was not the sole reason.

The Employment Appeal Tribunal (EAT) and the Court of Appeal both rejected Mr Augstine’s appeal that the reason must be the sole reason.

The Supreme Court agreed with Mr Augustine.

As the regulations came into being because of the European Union directive on part-time work, the Supreme Court turned to clause 6.1 which allows for the introduction of more favourable provisions. On that basis, the court widened the meaning of “ground” so that part-time working did not have to be the sole ground, but only needed to be an effective cause.

What should employers do?

Employers should ensure that part-time workers are treated fairly at all times and that any difference in treatment of a part-time worker is not because they work part-time (or for any reason that is contrary to the Regulations or the Equality Act 2010).  If any difference in treatment is because of part-time work, that treatment must be justifiable on objective grounds.

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Case 5 – Disability at work: Why employers need to look beyond the label

In Marguerite Andrea Cunningham v British Broadcasting Corporation [2026] EAT 92, the Employment Appeal Tribunal (EAT) considered how employers and tribunals should approach knowledge of disability and the duty to make reasonable adjustments. The judgment is a timely reminder that an employer should not adopt an overly formalistic approach, waiting for occupational health to use the word “disabled” before taking protective action. Instead, the employer must assess all the information reasonably available to it before making any decisions.

Ms Cunningham had worked for the BBC since 1987 as a television presentation announcer/director. She had type 2 diabetes and experienced fatigue. The BBC knew of her diagnosis, the effects of exhaustion and her requests for changes to her working arrangements. Some shifts were adjusted, but she continued to work a BBC Scotland late shift ending at 12:30am. After a broadcast error in June 2023, disciplinary proceedings began, although no formal action was ultimately taken. Occupational health later advised that she should not work shifts ending at or after midnight.

The original Employment Tribunal dismissed claims for failure to make reasonable adjustments and discrimination arising from disability. On appeal, however, the EAT concluded that the tribunal had erred when addressing the BBC’s knowledge. The evidence did not have to arrive as a single definitive medical label. Taken together, the BBC’s actual knowledge of the condition, its effects and the adjustment requests meant that it knew – or ought reasonably to have known – that Ms Cunningham was disabled during the relevant period.

Key lessons for employers

First, constructive knowledge is a practical, evidence-based concept. Managers should not focus narrowly on whether an employee or clinician has expressly identified a condition as a disability under the Equality Act 2010. Warning signs may include a long-term diagnosis, reports of fatigue or other substantial effects, repeated absence, requests for support, and medical recommendations. Those facts should trigger careful enquiry. Managers should document what is known, ask proportionate follow-up questions and avoid treating uncertainty as a reason to do nothing. Managers should also not ask questions simply because they are worried it will open a ‘can of worms’.

Secondly, occupational health advice informs rather than replaces management judgment. If a report is incomplete or ambiguous, the appropriate response is normally to seek clarification promptly. While that clarification is obtained, sensible interim measures should be considered. In this case, the EAT highlighted the need to examine whether temporarily removing the claimant from the late shift would have been reasonable while the BBC questioned the occupational health advice. A ‘wait and see’ approach can expose an employee to continuing disadvantage and increase legal risk.

Thirdly, the correct analysis of reasonable adjustments begins with precision. The employer and, if litigation follows, the tribunal must identify the relevant provision, criterion or practice, the substantial disadvantage it creates for the disabled employee, and the steps that might remove or reduce that disadvantage. A proposed adjustment should then be assessed in context, including its effectiveness, practicality, cost and operational impact. General assertions about rota requirements are unlikely to substitute for a focused assessment of the particular shift and the employee’s circumstances.

Fourthly, health information should be integrated into disciplinary decision-making. The EAT did not disturb the finding that Ms Cunningham’s broadcast error was not materially caused by disability-related exhaustion, and the separate challenge on that issue did not succeed. Even so, employers should investigate whether disability may have contributed to an alleged performance or conduct issue before deciding on formal action. This requires careful review of the information available, an open mind, consideration of relevant medical evidence and a clear record of the decision-making process.

Finally, employers should act early and keep adjustments under review. Effective practice includes training managers to recognise potential disability, maintaining communication with the employee, recording decisions, assigning responsibility for obtaining medical clarification and revisiting temporary arrangements as evidence develops. The case does not mean that every requested adjustment must be accepted, but it does show that an employer must engage actively and sensibly with the available information.

The central lesson from Cunningham is that disability duties are driven by substance, not labels. Where the accumulated evidence points to a long-term impairment causing meaningful disadvantage, employers should investigate, consider interim protection and make a reasoned adjustment decision. That approach is not only legally safer; it supports fairer and more effective workplace management.

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Case 6 – Surprise disciplinary meetings: When does the right to be accompanied apply?

In Wolfe v Taka Mayfair Ltd [2026] EAT 106, the Employment Appeal Tribunal clarified that the statutory right to be accompanied at a disciplinary or grievance hearing is not automatic – the worker must first make a reasonable request.

The facts & decision

Mr Wolfe, a head sommelier, was called into a meeting after a shift without advance warning of its purpose. He was dismissed during the meeting. He later sought to amend his Employment Tribunal claim to allege a breach of Section 10 of the Employment Relations Act 1999, arguing that he had been unable to request a companion because he did not realise that the meeting was disciplinary until it was too late.

The tribunal refused the amendment because the proposed claim was bound to fail, and the EAT dismissed the appeal. Section 10 applies only where the worker is invited or required to attend a disciplinary or grievance hearing and reasonably requests to be accompanied. No request was made here, so the statutory duties were never triggered. That remained the position even though the employer had not explained the meeting’s nature beforehand. The EAT observed that any gap in the protection created by the statutory wording was for Parliament, rather than the courts, to address.

Key lessons for employers

The decision provides a narrow answer on statutory liability, but it is not a licence to hold surprise disciplinary meetings. Employers should continue to tell employees in writing what a meeting concerns, set out the allegations and possible consequences, provide relevant evidence, allow reasonable preparation time and expressly remind the employee of the right to be accompanied. Those steps support compliance with the ACAS Code and reduce the risk that a dismissal is found procedurally unfair.

If a worker asks for a companion once the purpose of a meeting becomes clear, the employer should pause and consider the request rather than pressing ahead. Managers should therefore be trained to recognise when an apparently informal conversation has become disciplinary in substance. They should also keep a clear record of the invitation, explanation of rights, any request made and the employer’s response.

Finally, employers should distinguish the Section 10 claim from broader fairness. A failure to permit accompaniment can attract compensation of up to two weeks’ pay, but a deficient process may also contribute to an unfair dismissal finding and an uplift for unreasonable failure to follow the ACAS Code. The safest course remains transparency and fair warning, even where the strict statutory right has not yet been activated.

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