Employment Law Alert UK – March 2025

Diversity, Equity & Inclusion

Court of Appeal hands down judgment in the long-standing case of Higgs v Farmor’s School and others, finding that the dismissal of a school counsellor for Facebook posts constituted unlawful direct discrimination on the ground of religion or belief. The Court of Appeal held that the Claimant’s dismissal was not objectively justified and accordingly constituted unlawful discrimination: “dismissal was unquestionably a disproportionate response”. Some points of interest from this key decision:

• There were five interveners in the case, signifying the continued level of interest in cases dealing with these issues.
• Following Forstater v GCD Europe, it was accepted that the Claimant’s beliefs qualified for protection under the Equality Act 2010.
• The judgment contains significant analysis of relevant legislation and authorities – focussing in particular on how to reconcile the inability to justify direct discrimination under the Equality Act 2010 with the fact that Convention rights (i.e. Art 10 – right to freedom of expression), are qualified rights which introduces a consideration of whether actions taken which limit these rights are objectively justified. The Court of Appeal held that this “blending” was jurisprudentially legitimate and therefore gave due consideration to whether the school could objectively justify the action it took against the Claimant.
• Crucially, the Court of Appeal held that whilst it was understandable that the school had taken objection to the Facebook posts, dismissing the Claimant for gross misconduct was disproportionate.
• Interestingly, the Court commented that the Claimant’s failure to acknowledge any fault on her part or admission that she might not do the same again is not something that should justify dismissal in a case which would not otherwise warrant that sanction: “I accept that in an appropriate case lack of insight may justify an employer in choosing dismissal rather than a less severe sanction; but there can be no universal rule.”
• The Court of Appeal acknowledged that although the posts contained offensive language, the language was not “grossly” offensive and did not create a material reputational risk for the school. When considering the issue of reputation the Court of Appeal noted that generally it is important to consider whether the views expressed are personal to the employee – and that this consideration could be particularly important in the case of senior employees. It was noted that the Claimant was not a senior employee and in this case it was unlikely that readers of the Claimant’s post would think that she was speaking for the school. The Court of Appeal took particular account of the fact that the Claimant had not made any comments in the workplace and had not displayed any discriminatory attitudes in her treatment of her pupils. It was also key that the Claimant had posted on her personal account (although it was acknowledged that this fact was not necessarily a bar to reputational damage being done).
• The Court noted that it is important (particularly in the current social media climate) to judge a post by what it actually says, rather than what some readers might illegitimately read into a post. In this case it was a step too far to suggest that a person posting as the Claimant had done was necessarily homophobic or transphobic. (Higgs v Farmor’s School and ors)

Teaching Assistant was fairly dismissed following inappropriate comments made at a training day. The ET dismissed the Claimant’s claims of religious discrimination and harassment against the Respondents, finding that in the circumstances it was reasonable to dismiss the Claimant. The Claimant was placed with the Respondent as a teaching assistant. He attended an organised training day for staff on 23 March 2023. During this training session, which was called a “safe space” the Claimant expressed his own views on same-sex marriage, abortion and Sharia law, in a way which others attending the training session found objectionable. His position was terminated, after which the Claimant took to social media and later to national press and media outlets. The ET concluded that the actions taken by the Respondents were not motivated by the Claimant’s religious beliefs but were based on legitimate concerns about his conduct and the manner in which he expressed his views. The Tribunal noted that the Claimant's expression of his beliefs was not in line with the school's ethos and values, and his conduct raised concerns about potential impacts on students and staff, and it was therefore legitimate for the Respondent to have insisted that the Claimant refrain from expressing his beliefs in the manner he had, both at the school and on social media. The case serves as a cautionary tale about the risks which can arise in “safe spaces”. It is always worth reminding staff during training about the importance of expressing views respectfully and being mindful that there could be a divergence in views amongst those present. (Mr B Dybowski v The Bishop of Llandaff Church In Wales High School and Staffroom Education Ltd)

Arts Council unfairly dismissed employee in connection with expression of support for trans colleagues. The ET has upheld the Claimant’s claim of unfair dismissal, whilst dismissing her claims of victimisation against the First Respondent Arts Council England and a second named Respondent. The Claimant, who was employed as a Relationship Manager, alleged constructive unfair dismissal and victimisation following her dismissal from the Respondent. The Respondent suspended a grant which was due to be paid to a charity due to alleged transphobia and hosted a drop-in session for staff to discuss this. There followed an email from the Deputy Chief Executive of ACE which noted his personal solidarity with ACE's trans and non-binary staff, and then an email from another employee criticising the views expressed at the drop-in meeting and linking to a petition (an "allies support sheet"). The Claimant signed the allies support sheet, and added a comment. A disciplinary process was later initiated in connection with the content of the spreadsheet. The Claimant raised a number of issues about disciplinary process and ultimately treated herself as constructively unfairly dismissed. The ET agreed. It identified that the Respondent did not follow its own process, and did not have an informal conversation with the Claimant before inviting the Claimant to a disciplinary hearing. The Claimant’s comments were not intended to cause upset and she immediately apologised so an informal conversation would likely have resolved it. (Islam-Wright v Arts Council England and C Ashcroft)

EAT reduces compensation for injury to feelings in maternity discrimination case. The EAT reduced the compensation awarded to the Claimant in connection with her maternity discrimination claim from £10,000 to £2,000, finding that the original award was excessive and insufficiently reasoned. The Claimant brought a maternity discrimination claim against the Respondent after her grievance about not being offered a suitable alternative role during redundancy was not addressed. The ET dismissed most of the Claimant’s claim but did find in favour of the Claimant in relation to the handling of the Claimant’s grievance – the Respondent took no further action to identify and locate the Claimant’s grievance after she alerted the Respondent to it, later relying on the fact that it had been blocked by an internal firewall and therefore not received over email. The EAT concluded that the grievance issue was an isolated incident and did not warrant a middle-band award, thus adjusting the compensation to reflect the limited scope and impact of the discrimination. The EAT also noted that the ET failed to provide sufficient reasoning for the amount awarded. This case acts as a helpful reminder that injury to feelings should not be assumed and rather needs to be evidenced, and includes a list of factors which may be helpful to consider i.e. the Claimant’s description of their injury, the duration of the consequences, the effect on past, current and future work and the effect on personal life or quality of life. (Graham v Eddie Stobart)

EAT overturns ET's decision on indirect sex discrimination and unfair dismissal. The EAT has dismissed the Claimant’s claims of indirect sex discrimination and unfair dismissal finding that the ET had misapplied the legal tests for group disadvantage and justification in the indirect sex discrimination claim and had not adequately considered the reason for dismissal in the unfair dismissal claim. The Claimant commenced employment with the Respondent in 2005 and worked as a grade 3 manager. Her role did not require her to travel. A restructure took place in 2021 after which the Claimant was asked to travel to different locations to manage her new team. The Claimant had childcare responsibilities which meant that she could not travel as was requested. In May 2022 she was made redundant and in August 2022 she brought claims of unfair dismissal and indirect sex discrimination. The ET initially ruled in the Claimant’s favour, however, the EAT determined that the ET had failed to properly analyse the group disadvantage arising from the provision, criterion or practice (PCP), and whether the childcare disparity meant that this was intrinsic in the PCP or simply an obvious consequence of it. It had also not sufficiently engaged with the application of the PCP in general and to the Claimant in particular, or the redundancy rationale. The EAT concluded that the ET's reasoning was unclear and lacked the necessary analysis to support its findings, leading to the decision being overturned. (Marston (Holdings) Ltd v Perkins)

ET rules in favour of Claimant in age discrimination claim against law firm. The ET ruled in favour of the Claimant finding that Respondent discriminated against him on the grounds of age. The ET determined that the Respondent's refusal to extend the Claimant’s partnership and the subsequent termination of his membership were acts of direct age discrimination. The Claimant who had been a partner since 1992, sought to delay his retirement beyond the firm's set retirement age of 60. The Respondent had in place a new process whereby at 60 partners could apply to delay their retirement first by 3 years, and then by a further 2. The Claimant’s first application (to delay his retirement to 63) was successful, but his second was rejected. The Respondent sought to argue that the Claimant’s second application was rejected because of the Claimant’s performance feedback, including the Claimant demonstrating a lack of collaboration and willingness to engage with succession planning. The Respondent also asserted that the retirement plan generally aimed to promote fairness for all partners. However, the ET was not persuaded that in practice this was the driver behind the decisions – in practice there was no ‘blocking’ of junior partners being promoted because of older partners not retiring. The ET acknowledged that workforce and succession planning and collegiality and cohesion were potentially legitimate aims, but found that in practice it was not reasonably necessary to enforce retirement at 63 to meet those aims. There were a number of less discriminatory options which the Respondent could have adopted. (Scott v Walker Morris LLP)

ACAS publishes new advice on neurodiversity in the workplace. On 21 January ACAS published new advice on understanding neurodiversity at work. The guidance provides information on different types of neurodiversity as well as how to talk about neurodiversity and use appropriate language. The publication also includes steps which employers can take to seek to be neuroinclusive.

WEC publishes report on the rights of older people. On 19 February 2025 the Women and Equality Committee published a report on the rights of older people. The WEC finds that ageism is widespread in the UK and that the current protections against discrimination are failing older people. The report highlights the importance of taking steps to address these issues in the context of national demographic change and an increasing number of people in older age groups in the UK than ever before. The report focusses in particular on ageist stereotypes in the media and advertising and digital exclusion.

Employee Relations

EAT upholds dismissal for gross misconduct arising from omission in job application. The EAT dismissed the Claimant’s appeal against his dismissal by the Respondent for gross misconduct. The EAT upheld the ET’s decision, finding that the Claimant had been dishonest in his job application by failing to disclose a previous dismissal for gross misconduct and a subsequent period of unemployment. When the Claimant applied for a role with the Respondent, the application form included a box for the Claimant to set out his employment history. The Claimant provided his Employment History using years only, thereby concealing a three month gap following his dismissal for gross misconduct, which he also did not mention at any stage during the recruitment process. He also did not provide any information to the Respondent about a serious underlying health condition. When these omissions came to light he was dismissed for gross misconduct. The EAT concluded that the Claimant’s dismissal was within the range of reasonable responses available to the Respondent given that the Respondent had a genuine belief in the Claimant’s dishonesty, which was reasonably held given the investigation which the Respondent had carried out. (Easton v Secretary of State for the Home Department (Border Force))

Other interesting things

Government announces changes to right to work checks. On 12 February 2025 the government updated its employer’s guide to right to work checks. Of particular note eVisas are replacing physical biometric residence permits, and we may see more employers move from carrying out manual document checks to using the Home Office online checking system.

Government publishes responses to Employment Rights Bill consultations. On 04 March 2025 the government published responses to its consultations on collective consultation and fire and re-hire, Government response to the consultation on the application of zero hours contracts measures to agency workers, a Government response to the consultation on creating a modern framework for industrial relations and statutory sick pay. Of particular note is the response to the consultation on collective consultation and fire and re-hire. The government has confirmed that it intends to increase the cap on protective awards for failure to collectively consult from 90 days to 180 days. Although the government has not gone as far as to remove the cap entirely (an option which was explored in the consultation) this change materially increases the risk associated with any collective process. It is also worth noting that with effect from 20 January 2025 Employment Tribunals have the right to increase a protective award by 25% if an employer has unreasonably failed to follow the Code of Practice on Dismissal and Re-engagement. A 25% uplift could now increase a protective award by up to the equivalent of 45 days (if the protective award is for 180 days). The response, does however note that Employment Tribunals will continue to have discretion to vary the length of the protected period, taking into account the seriousness of any non-compliance, as well as mitigating factors. In other better news, the government has confirmed that it will not be introducing the possibility of interim relief for employees who bring claims. If you would like to discuss this further, please reach out to your usual contact.