Employment Law Alert UK – April 2025

Diversity, Equity & Inclusion

ET should have granted anonymity to Claimant to stop disability being made public.
The EAT has held that the ET set too high a bar for the Claimant's anonymity application, and focussed too much on the provision of medical evidence, and the fact that the Claimant had secured a new role, in circumstances where the Claimant was legitimately concerned about his future employability. The Claimant was a university lecturer, who had concealed his Asperger's syndrome for most of his working life, although he had made it known to the Respondent (against whom he brought claims of disability discrimination). The EAT held that the medical evidence which the ET has found was lacking could not evidence the potential stigma which the Claimant was asserting, and instead the case should have focussed on whether there was a reasonable foundation for the Claimant's belief. Accordingly the EAT found that anonymity was not contrary to the public interest - any interference with the principle of open justice was relatively minor and was far outweighed by the genuine and reasonable fears for the future impact which the Claimant held. (F v J)

EAT finds ET's conclusion on disability unsafe.
The EAT found that the ET's preliminary finding that the Claimant was not disabled in law unsafe. The Claimant has Mixed Connective Tissue Disease. She was engaged by the Respondent as a Support Worker Practitioner until she was dismissed in 2021 by the Respondent for refusing mandatory Covid-19 testing. The Claimant brought claims of unfair dismissal and disability discrimination. At a Preliminary Hearing the ET held that the Claimant did not have a qualifying disability, finding her condition quiescent and not substantially affecting her day-to-day activities. However, the ET failed to consider that if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities it could still be treated that way if the effect is likely to recur. The ET had not engaged with this part of the legal test and therefore the conclusion on disability was unsafe. The case was remitted for further consideration. (Alcian Roofe-Stewart v MacIntyre Care Ltd)

Court of Appeal upholds Gender Recognition Panel's refusal to recognise non-binary gender.
The Court of Appeal has ruled that the Gender Recognition Act 2004 (GRA 2004) does not require the Gender Recognition Panel (GRP) to issue a gender recognition certificate (GRC) for non-binary gender status acquired under foreign law. The Claimant, a US citizen with legally recognised non-binary status in California, applied for a GRC in the UK, having moved to the UK on a Tier 1 Global talent visa in 2019. The GRP refused, citing that the GRA 2004 only recognises binary gender transitions (male to female or female to male). The Claimant's judicial review application was rejected by the High Court. The Court of Appeal agreed, finding that the term "gender" in the GRA 2004 refers to binary gender only, and extending it to include non-binary status would constitute a significant change to UK law not intended by Parliament. Furthermore, the Court of Appeal found that this interpretation did not breach Article 14 of the ECHR, as the differential treatment was objectively justified by the legislative changes that recognising non-binary status would require. Leigh Day who represented the Claimant announced that the Claimant will now seek permission to appeal to the Supreme Court. (R (Castellucci) v Gender Recognition Panel and anor)

Court of Appeal provides guidance on list of issues.
The Court of Appeal has overturned the decision of the EAT and dismissed the Claimant's claims. The Claimant, an NHS employee, and litigant in person, brought claims of discrimination arising from her disability and unfair dismissal. A list of issues was agreed between the parties. Significantly this list of issues did not include a claim for discriminatory dismissal. The ET dismissed the Claimant’s claims. The Claimant appealed, and the EAT found that the ET should have amended the list of issues to include a claim for discriminatory dismissal. The Court of Appeal disagreed, finding that the ET was entitled to rely on the agreed list of issues, as it accurately reflected the claims put forward in the Claimant's statement of case. The Court of Appeal emphasised that the ET's role is not to expand or modify the case beyond what is presented by the parties, especially when a list of issues is agreed upon. A court must consider which claims emerge from an objective analysis of the statement of case. In the present case, a case for discriminatory dismissal did not emerge from an objective analysis of the ET1 and therefore including such a claim would require a court to inappropriately enter the “adversarial arena”. Of further note, it was suggested during the course of the litigation that it “may have been appropriate” for the Respondent to have alerted the ET to the possibility that the Claimant might have a claim for discriminatory dismissal. The Court of Appeal was quick to dismiss this suggestion: “I would take a good deal of persuading that a litigant owes a duty to assist its adversary or the tribunal in this way.” (Moustache v Chelsea and Westminster Hospital NHS Foundation Trust)

Government publishes consultation on ethnicity and disability pay gap reporting to shape proposals to be included in upcoming Equality (Race and Disability) Bill.
On 18 March 2025 the government published a consultation seeking views on how to implement mandatory ethnicity and disability pay gap reporting for employers with 250 or more employees. The consultation invites views on how best to practically implement the proposals to inform the government's next steps. The government is aiming to ensure that legislation gives employers a clear framework, provides robust data and that reporting can be adopted by employers across different sectors. The consultation closes on 10 June 2025.

Final regulations on neonatal care leave and pay published.
On 20 March 2025 the Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 and the Statutory Neonatal Care Pay (General) Regulations 2025 were approved in both House of Parliament, bringing into effect new rights in relation to children born on or after 6 April 2025 who require neonatal care for a week or more.

FCA publishes update on NFM rules and D&I proposals.
On 12 March 2025 the FCA announced updates in relation to its proposals on NFM and D&I. The publication of the final rules on NFM has been delayed yet again, with the FCA indicating that it will "set out next steps" by the end of June this year. The delay is down to the FCA taking further time to "get this right", as well as ensuring the approach is proportionate and aligned with planned legislation. Following pushback from the industry and engagement with the Treasury Select Committee on the separate proposals relating to D&I, the FCA and PRA have confirmed that they have no plans to take the proposals any further. The FCA indicate that this is because of the feedback received, together with "expected legislative developments" (likely to be a reference to the Government's proposed Equality (Race and Disability) legislation mentioned above) and to avoid imposing additional burdens on firms.

Parker Review publishes update report on improving the ethnic diversity of UK Business.
The report, published in March 2025 considers the progress which has been made by FTSE 100 and 250 companies against their Board targets. As at December 2024 95% of FTSE 100 companies and 85% of FTSE 250 companies had at least one ethnic minority director on their board. The review has expanded its scope to consider ethnic representation in senior management. On average ethnic minority executives currently comprise between 9 and 11% of the total number of UK-based senior managers. It is hoped that this number can be increased by 2027 to between 13% and 15%.

ACAS focuses on neurodiversity in the workplace.
Following the publication of its own guidance, on 6 March 2025, ACAS published an independent research paper on neurodiversity at work written by researchers at Birkbeck University. The paper is not intended to act as further guidance from ACAS, but does consider what good policy and practice looks like in the workplace. It includes a section on what "good" looks like for proactive reasonable adjustment processes and advocates "a holistic organisational and policy approach as part of wider equality, diversity and inclusion and wellbeing initiatives".

Litigation procedure

Preliminary Hearing highlights importance of document metadata.
The Claimant is bringing multiple claims against the Respondent and 15 named individuals, including whistleblowing detriment, automatic unfair dismissal, ordinary unfair dismissal, and various forms of disability discrimination. The ET held a Preliminary Hearing to address strike out and deposit applications from both parties. The Tribunal decided not to strike out any claims or responses, allowing the case to proceed to a full hearing. Of particular note, in the Claimant's submissions he contended that the metadata of certain key documents illustrated that the true decision-maker in relation to his dismissal was not the person identified to him, but rather others who modified key documents at the relevant time. The ET noted that proper analysis of the metadata of documents was a matter for both expert and non-expert witness evidence, and could not be determined at a preliminary stage. The progression of this case will be watched with interest as it highlights the new potential implications of technological expertise in proceedings. (Forest v Amazon Web Services and Ors)

Tribunal Procedure Committee publishes new consultation.
On 24 March 2025 the Tribunal Procedure Committee launched a new consultation on proposed changes to the Employment Tribunal Procedure Rules 2024. The proposals include amending the rules to clarify that tribunals may direct parties to take part in a dispute resolution appointment or to prepare a draft of a proposed case management order. The consultation closes on 19 May 2025.

Employee Relations

The FCA fines and bans Crispin Odey.
The FCA announced on 17 March 2025 that it will fine Crispin Odey £1.8m and ban him from the UK financial services industry. The FCA found that Mr Odey had breached Conduct Rule 1 (the requirement to act with integrity) by taking actions to deliberately frustrate the disciplinary process (investigating allegations of sexual harassment against Mr Odey concerning conduct between 2003 and 2020) and showing a "reckless disregard" for Odey Asset Management's governance, causing regulatory breaches.

Court of Appeal upholds decision of EAT that Ofsted inspector unfairly dismissed.
The Court of Appeal has agreed with the EAT that the summary dismissal of an Ofsted inspector with an otherwise clean disciplinary record was unreasonable. The Claimant worked as an Ofsted inspector. During a school inspection he briefly touched a pupil's head to wipe away rain that was dripping down his face (the children having just come inside from the pouring rain). It was accepted that there was no intention to harm the child and that the conduct did not pose a safeguarding risk. Nevertheless following a complaint from the school, a disciplinary process was launched and the Claimant was dismissed for gross misconduct. The Claimant brought claims of unfair dismissal and wrongful dismissal which were dismissed by the ET at first instance, but were then overturned by the EAT. The Court of Appeal also upheld the Claimant's claims, finding it "deeply regrettable" that the Claimant had been dismissed for conduct which "amounted to no more than a momentary and well-meaning lapse of professional judgment of a kind which he was most unlikely ever to repeat." Of particular note for practitioners the judgment highlights that where a particular action is not listed as an example of potential gross misconduct, consideration must be given as to whether an employee could reasonably expect their employer to perceive that conduct to be serious misconduct. And also, that an employer should not as a matter of course be able to "bump up" the seriousness of the conduct on the basis of whether the employee fails to show contrition. (Hewston v Ofsted)

New compensation limits, statutory payments and Vento guidelines.
On 13 March 2025 The Employment Rights (Increase of Limits) Order 2025 was made, effecting changes from 6 April 2025. Of particular note the compensatory award for unfair dismissal will increase from £115,115 to £118,223 and the limit of a week's pay for the purposes of calculating statutory redundancy payments will increase from £700 to £719. The updated Vento bands are £1,200 to £12,100 (lower band), £12,100 to £36,400 (middle band) and £36,400 to £60,700 (upper band). A summary of employment law rate changes is available.

Government launches call for evidence on remote and hybrid working.
On 5 March 2025 the House of Lords Committee on home-based working launched a call for evidence for its inquiry into the effects and future development of remote and hybrid working. The Committee will consider the challenges and opportunities of remote and hybrid working, the impact that it has on individual wellbeing as well as organisational productivity and resilience. Submissions are also invited on why some employers have implemented back-to-office mandates, whilst others have continued to support hybrid or remote working. The call for evidence closes on 25 April 2025.

Employment Rights Bill (ERB) progress.
On 11 and 12 March 2025 the House of Commons report stage and third reading of the ERB took place. Further to this, on 21 March 2025, the government published its response to the report by the Women and Equalities Committee (WEC) into miscarriage and bereavement leave. The government acknowledges that "more can be done to support parents who experience pregnancy loss before 24 weeks", and that it "accepts the principle of bereavement leave for pregnancy loss". However, the government has made no express commitments. Of additional note, earlier this month the ERB was amended to define the initial period of employment as "not less than 3 months and not more than 9 months from the day on which the employee starts work" offering a clearer indication of the government's idea of a probationary period. The ERB will now progress to the House of Lords.