Employment Appeal Tribunal (EAT) rulings over recent weeks have reinforced a familiar message for employers and advisers. Statutory gateways, consultation obligations and early procedural decisions can determine the outcome of a case long before the underlying facts are tested.
In our latest roundup, prepared in association with employment law platform LexHR, we examine decisions on insolvency payments, late challenges to remedy awards, collective consultation duties and pandemic adjustments.
Experts say the cases demonstrate that careful timing and correct legal framing are essential to avoid expensive mistakes.
No basic award without tribunal decision in Chaudhry case
An employee could not recover a basic award from the state after his employer became insolvent because no tribunal had yet ruled on his unfair dismissal claim.
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In Mr M Chaudhry v Paperchase Products Ltd (in administration) and Secretary of State for Business and Trade, Chaudhry’s unfair dismissal claim was stayed when Paperchase entered administration. He then sought payment of a basic award from the National Insurance Fund.
The EAT dismissed the appeal, holding that the statutory scheme requires a tribunal to first decide that a dismissal was unfair and make a basic award before the Secretary of State can be liable to pay it. The fact that insolvency prevented the claim from being heard did not change that requirement.
Key learning points
- State-backed payments depend on an actual tribunal award, not just a lodged claim.
- Insolvency does not relax statutory preconditions.
- Early tribunal decisions may be critical where insolvency is foreseeable.
Late challenge to remedy rejected in Vesuvius v Cowie
An employer was prevented from correcting an error in a multimillion-pound award because it raised the point too late.
In Vesuvius Plc v Mr Glenn Cowie, the tribunal awarded more than £3 million for age discrimination and unfair dismissal, including a gross-up for national insurance contributions that should not have been included. The employer appealed after the award had been paid.
Although the EAT accepted the gross-up was legally wrong, it refused to allow the employer to run the point on appeal. The issue had not been raised at the remedy hearing and undoing the award would cause significant prejudice to the claimant.
Key learning points
- Remedy errors must be challenged early, ideally at tribunal stage.
- New points on appeal are discretionary and often blocked.
- Finality and fairness can outweigh technical correctness.
Collective consultation duty clarified in Micro Focus case
The EAT narrowed when employers must collectively consult in redundancy situations across corporate groups.
In Micro Focus Ltd v Mr James Mildenhall, the tribunal had found a breach of collective consultation duties by treating the employer as a de facto group-wide employer. That finding triggered a protective award.
The EAT overturned that approach, confirming that consultation duties under section 188 of the Trade Union and Labour Relations (Consolidation) Act apply only to the specific legal employing entity proposing dismissals. Group influence or operational control was not enough.
Key learning points
- Collective consultation thresholds are entity-specific, not group-wide.
- Legal employing entity matters more than operational reality.
- Misapplied EU case law can undermine redundancy decisions.
Redundancy dismissal unfair where no consultation in Gormley case
A redundancy dismissal was ruled unfair because the employer failed to consult, even though redundancy itself was genuine.
In Gormley v Phoenix Business Solutions (UK) Ltd, the tribunal accepted there was no consultation but still rejected the unfair dismissal claim, instead awarding a limited payment for the consultation period.
The EAT allowed the appeal, holding that failure to consult goes directly to fairness under section 98 of the Employment Rights Act. Having found no consultation, the tribunal could not lawfully conclude the dismissal was fair.
Key learning points
- Consultation failures are substantive, not cosmetic.
- You cannot compensate away unfairness.
- Polkey principles remain central to redundancy fairness.
COVID adjustments mishandled in Duke v B and M Retail
The EAT ordered a full rehearing after errors in handling disability and dismissal claims during the pandemic.
In Mr Neil Duke v B and M Retail Ltd, a clinically vulnerable employee was refused furlough as a reasonable adjustment and offered only sick pay if he stayed away from work. His discrimination and unfair dismissal claims were rejected by the tribunal.
The EAT found multiple legal errors, including flawed analysis of indirect discrimination, reasonable adjustments and justification, and a failure to address a wrongful dismissal claim at all. The case was remitted for rehearing.
Key learning points
- Pandemic policies must still accommodate disability rights.
- Offering sick pay is not automatically a reasonable adjustment.
- Tribunals must address every pleaded claim.
Armed forces discrimination claims struck out in Dunn case
Statutory exemptions prevented former service personnel from bringing disability discrimination claims.
In L and Paul Dunn v Ministry of Defence, both claimants argued that Equality Act exemptions for armed forces service should be read compatibly with human rights law to allow their claims to proceed.
The EAT rejected both appeals, holding that Parliament deliberately excluded armed forces service from disability discrimination protections. Human rights arguments could not override clear statutory wording.
Key learning points
- Equality Act exemptions for armed forces are robust.
- Human rights arguments have limits in employment litigation.
- Jurisdictional issues should be assessed at the outset.
Bottom line for HR
Across insolvency, redundancy, discrimination and remedy, the EAT continues to underline that statutory structure and procedural accuracy matter. Missed steps, whether consultation, timing or legal framing, can decide outcomes long before the merits are reached.
