1. Truman v SPL Powerlines UK Ltd & Others [2026] EAT 54
In this case, the Employment Appeal Tribunal (“EAT“) considered disability discrimination claims brought by a rail worker who had failed a mandatory drug and alcohol (“D&A“) test due to his legally prescribed medical cannabis.
The Claimant applied for a safety-critical Lift Planner role in the rail industry. Under Network Rail’s mandatory policy, a D&A test was required for all safety-critical roles, which was administered by a third-party testing company. The policy provided that a fail (i.e. a positive drugs result) could still be recorded as a pass where the detected substance was legitimately prescribed medication. The Claimant disclosed his prescription, but his result was recorded as a fail. The job offer was withdrawn and the Claimant was banned from safety-critical rail work for five years. The Claimant brought disability discrimination claims, which were dismissed by the Employment Tribunal (“ET“), despite the ET accepting that the drugs result should have been recorded as a pass and acknowledging he had “suffered an injustice“. Expert evidence had also confirmed he could have worked safely with appropriate safeguards in place.
The Claimant appealed. The EAT upheld part of his appeal relating to reasonable adjustments as it concluded that the ET had used the wrong comparator — a non-disabled person who tested positive for recreational drug use — when assessing whether the Claimant had suffered a substantial disadvantage when compared to a non-disabled applicant. The EAT held that a failure to take account of relevant medical information plainly bites harder on a person with a legitimate medical need for prescribed medication than on a recreational user, and concluded that the ET’s reasoning on this point was inadequate. The correct comparator in this case was a non-disabled person who passed the test, not one who also tested positive. The EAT therefore returned this aspect of the reasonable adjustment claim to the ET for reconsideration.
This decision is important for employers that frequently use mandatory D&A testing. It confirms that workplace D&A policies must be well drafted and applied carefully, including any adjustment provisions for prescribed medication, and that outsourcing testing to a third-party provider does not transfer responsibility for the outcome. Employers should ensure that any relevant medical information is properly considered before any result is finalised.
2. Tarbuc v Martello Piling Ltd [2026] EAT 58
In this case, the Employment Appeal Tribunal (“EAT“) considered whether a pre-termination negotiation was protected under section 111A of the Employment Rights Act 1996, and whether any such protection had been applied too broadly. Section 111A provides that evidence of pre-termination negotiations is inadmissible in unfair dismissal proceedings, unless there has been improper conduct.
The Claimant was employed by the Respondent as an Estimating Engineer until his dismissal in June 2024, purportedly by reason of redundancy. Prior to dismissal, he was called to a meeting without notice or the opportunity to bring a companion. At the meeting, he was told the Respondent wanted him to leave, and, on the Claimant’s account, that if he did not accept the settlement offer, he would be put into a redundancy process and would “come last“. The Respondent denied making that threat. The Claimant brought claims for unfair dismissal, unlawful deductions and less favourable treatment as a part-time worker.
The Employment Tribunal (“ET”) found the Respondent’s version of events in respect of the settlement offer to be more credible, that the Respondent’s behaviour had not been improper and that s111A applied, meaning that the meeting was a protected pre-termination negotiation. It therefore directed that all references to the meeting be redacted from the ET hearing bundle and all related disclosure be refused across every claim.
The Claimant appealed and the EAT allowed the appeal in part. It held that the ET had incorrectly applied section 111A to all of the Claimant’s claims. Section 111A only excludes evidence of pre-termination negotiations in ordinary unfair dismissal proceedings. It does not extend to claims for unlawful deductions from wages or less favourable treatment under the part-time workers regime. By directing that the pre-termination negotiation evidence be redacted from the bundle in its entirety, the ET had wrongly excluded evidence that remained admissible and disclosable for those other claims.
Secondly, the ET was incorrect in its assessment of improper conduct. Although the ET had referred to the ACAS Code of Practice on Settlement Agreements, which provides guidance in this area, it had assessed improper conduct solely by reference to what was said in the meeting. It had not addressed the manner in which the meeting was called (without notice and without permitting a companion) even though the Claimant had specifically advanced this as part of his case. The EAT noted that the equivalent factors had not been sufficient to amount to improper conduct in Gallagher v McKinnon’s Auto and Tyres Ltd [2025] EAT 174, but that this did not mean they could never be sufficient in other cases, in combination with other conduct. The ET’s failure to address these matters and give adequate reasons was an error of law.
The case is a reminder of the limits of protection under section 111A, which applies only to ordinary unfair dismissal claims and cannot be used to withhold disclosure of the content of a settlement offer where it is relevant to any other claim. An employer preparing to make an offer of settlement to an employee should carefully consider the implications of this gap in protection, and whether “without prejudice” privilege, which applies to an offer of settlement of any type of legal claim, may also be applicable in the specific circumstances. The decision also confirms that the assessment of whether there has been improper conduct must be holistic, encompassing how a meeting is arranged and conducted, not only what is said within it.
3. Professional Game Match Officials Ltd v HMRC [2026] UKFTT 654 (TC)
In this case, which was returned to the First-tier Tribunal (“FTT”) from the Supreme Court after its decision in HMRC v Professional Game Match Officials Ltd [2024] UKSC 29, the FTT considered whether individual match contracts between PGMOL and its pool of part-time referees were contracts of employment for tax purposes. See our previous case update here which summarises the three elements to be assessed when determining whether there is an employment contract: LINK.
The Supreme Court had concluded that the first two elements of the test were met as it found that both mutuality of obligation and a sufficient framework of control were present in relation to each individual match contract. However, it asked the FTT to determine the third element of the test, whether, taking all relevant circumstances into account, those contracts were contracts of employment. After evaluating all relevant factors, the FTT decided that they were not and the part-time referees were therefore self-employed, and not employees.
On mutuality, although the work/wage bargain was present, its weight was limited. Referees could decline any appointment offered for any reason, withdraw from a match even after accepting without incurring any sanction, and were under no obligation to make themselves available across the season. Outside each individual match appointment, there were effectively no binding mutual obligations. The FTT attached particular weight to the right to withdraw after acceptance without consequence, describing this as “fundamentally inconsistent with the structure of employment.” It was also considered relevant that refereeing was also pursued as a serious hobby alongside full-time employment and “did not pay the bills,” which further diminished the significance of the work/wage mutuality.
On control, the FTT gave full weight to the Supreme Court’s finding that PGMOL’s assessment, coaching and disciplinary systems constituted significant levers of control. However, it found that the nature and quality of that control was regulatory, developmental and gatekeeping rather than managerial and supervisory. Referees retained complete autonomy over on-field decisions, PGMOL had no power to intervene in real time, and discipline for any misapplication of the Laws of the Game rested with the FA alone. The absence of disciplinary authority over referees’ core performance was a material distinguishing feature that was inconsistent with employment status.
The FTT concluded that the relationship lacked the defining hallmarks of employment: ongoing mutual commitment, subordination in performing the central task, organisational integration into PGMOL’s undertaking, and economic dependency.
This decision illustrates that a clear finding of mutuality and control, even at Supreme Court level, by no means determines the outcome of an employment status dispute. The nature, quality and context of those elements remain central to the overall evaluation, which is highly fact specific. In the right factual circumstances the third element of the test can decisively point away from employment.
For further information, please contact:
Alison Dixon, Partner, Bird & Bird
alison.dixon@twobirds.com
