Employment Law Coffee Break: New Vento bands published, gross misconduct dismissals, and GDPR for HR

Getting up to speed on employment law reforms and new Vento bands

Join this week's webinar

We have previously reported on April 2026 employment law reforms and the new statutory rates and limits which will apply. With employment law reforms now being implemented at pace, Osborne Clarke lawyers Amy Moylett, Alexandra Farrell Thomas and Shaziya Kurmani are hosting a webinar on Thursday 9 April 2026 at 9am. They will look at what employers and agencies must do now to prepare for the 2026/2027 reforms. 
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New Vento bands published

Last week saw the publication of the new Vento bands which will apply to awards for injury to feelings for cases presented on or after 6 April 2026:   

• the lower band of £1,300 to £12,600 (increasing from £1,200 to £12,100) for less serious cases;
• the middle band of £12,600 to £37,700 (increasing from £12,100 to £36,400) for cases which do not merit an award in the upper band;
• the upper band of £37,700 to £62,900 (increasing from £36,400 to £60,700) for the most serious cases;
• amounts in excess of £62,900 can be awarded in the most exceptional cases.   

Employers will need to factor in the new Vento guidelines when assessing liability and the potential award which may ultimately be made, in appropriate cases.

Awards at the upper end of the middle band or within the upper band are increasingly common where an employer's conduct has been found to be particularly egregious. Tribunals may also award aggravated damages on top, where conduct has been high-handed or malicious.

Personal injury awards for psychiatric harm caused by discrimination sit alongside, rather than within, the Vento bands, meaning total compensation in serious cases can significantly exceed the upper band figure.

A continued uptick in Employment Tribunal claims is anticipated. This is reflected in the tribunal quarterly statistics for October to December 2025, which recorded that new single claims in the tribunal increased by 54% and the tribunal's open track case load (whistleblowing and discrimination claims) by 49%, compared with the same quarter in 2024. As well as the forthcoming employment law reforms, including new claims of third party harassment and the reduction in the unfair dismissal qualifying limit, AI is increasingly playing a role in the number and complexity of claims in tribunal.

Osborne Clarke is working with clients on strategies and efficiencies in managing the increasing use of AI by individuals, who are using it to raise grievances and tribunal claims, where often the claim may appear more sophisticated than the underlying merits warrant, and where the claimant may have limited understanding of the applications, witness statements and other tribunal documentation being generated by the AI tool. Our specialist GDPR for HR team also look at how AI is affecting how tactical data subject access requests are made in employment disputes in their latest Insight. 

Tribunal finds dismissal for vaping unfair despite employer's genuinely held belief in misconduct

A recent case serves as a prompt for employers to review their relevant policies on misconduct.

The claimant had worked for his employer for over eleven years before he was dismissed, after an investigation, supported by CCTV footage, concluded that he had been vaping in the disabled toilets, activating the fire alarm and causing disruption to production.  

At his disciplinary hearing, the claimant initially denied ever vaping before later conceding that he did so occasionally at home. The disciplinary officer found that he had been untruthful and dismissed him for gross misconduct on the grounds of a health and safety breach, loss of trust and confidence, and loss of production. However, a comparator employee, who faced a separate health and safety allegation, had received only a final written warning after admitting his conduct and apologising.  

The Employment Tribunal ruled that despite the fact that the employer held an "honest and genuine belief" that the claimant was guilty of misconduct, it found that the dismissal fell outside the band of reasonable responses open to a reasonable employer and was therefore unfair.

The real reason for the dismissal was not the misconduct itself but the claimant's failure to apologise; the tribunal stated that "failing to apologise or to accept responsibility is not misconduct." In evidence, the disciplinary officer had conceded that an apology would have saved the claimant his job, confirming that the conduct itself was never truly the determining factor.

The dismissal was disproportionate for a single incident in an otherwise unblemished career spanning over a decade, with "no or insufficient credit for the fact that there had been no prior misconduct."

There was no clear rule that vaping in the toilets would be treated as gross misconduct. The tribunal held that "a reasonable employer would have made it clear that such conduct will be deemed gross misconduct" — a general prohibition on smoking or vaping was not sufficient.

The employer had treated length of service as an aggravating factor, reasoning that a long-serving employee should have known better. The tribunal rejected this approach, confirming that "a reasonable employer would consider length of service as a mitigating factor, not a disadvantage."   

The claimant's compensation was however reduced by 50% to reflect his own contributory conduct: he knew vaping was prohibited, even if he did not appreciate that it could result in dismissal. The total award after that reduction was £22,216.72.   

What does this mean for employers?   

This decision is a timely reminder that it is the misconduct itself that must drive the sanction. Where a disciplinary officer concedes that an admission or apology would have led to a different outcome, it will be difficult to characterise the dismissal as a response to the conduct rather than to the employee's demeanour. Denial or a lack of remorse can legitimately be taken into account, but they cannot be the principal reason for dismissal.

With reforms to unfair dismissal laws reducing the qualifying period for unfair dismissal claims from two years to six months from 1 January 2027, this decision takes on heightened significance.

At present, employers may proceed on the basis that conduct dismissals within the first two years carry a more limited legal risk. However, ensuring that the reason for a dismissal and the procedure followed are genuinely fair will become increasingly important. Even where misconduct is genuine and proven, a dismissal can still be unfair if the policy framework is inadequate, an unfair process is followed, the sanction is disproportionate, or the real reason for dismissal does not withstand scrutiny.

Employers who have not already reviewed their disciplinary policies and procedures (and trained those responsible for conducting disciplinary hearings) with the incoming change in mind should do so as a matter of priority.

The case also serves as a prompt for employers to review their relevant policies. Disciplinary policies should expressly identify which categories of behaviour will be treated as gross misconduct. A general prohibition on a particular activity, without a clear statement that breach may result in summary dismissal, is unlikely to satisfy a tribunal's expectations.

Vaping has become increasingly prevalent in workplaces, yet many employers' policies either predate the widespread use of e-cigarettes or address vaping only in passing alongside smoking. This decision underlines that a blanket prohibition, without more, will not be sufficient to support a gross misconduct dismissal where the policy does not make the consequences of a breach explicit and where employees may not regard vaping and smoking as equivalent.

Policies should expressly state that vaping is prohibited on the premises, identify any designated areas where it is permitted, and make clear that a breach may be treated as gross misconduct liable to result in summary dismissal (and even in such cases, mitigation and other factors may still make a gross misconduct dismissal unfair). The policy should be communicated to staff and reviewed periodically.   

GDPR for HR

In our latest GDPR for HR Insight, our specialist team looks at the role of data in internal investigations, the impact of AI on tactical data subject access requests (DSARs) made in employment disputes and on how recruitment is conducted, and a recent EU court ruling offering UK employers practical clarity on two recurring DSAR questions: deleted data and who counts as a recipient. 
Read more >