Employment Law Alert UK – May 2025

Diversity, Equity & Inclusion

Supreme court holds that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex. In a landmark judgment, the Supreme Court has unanimously ruled that the terms “man”, “woman” and “sex” under the Equality Act 2010 refer to biological sex. A Gender Recognition Certificate issued under the Gender Recognition Act 2004 (GRA 2004) does not change a person’s sex for the purposes of the EA 2010. Following the decision, the EHRC has published an interim update on the practical implications of the decision considering workplaces and public services. Of particular note, in workplaces it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities. Services which are open to the public can be provided on a single-sex basis if this is a proportionate means of achieving a legitimate aim and it meets the other conditions in the Equality Act. The EHRC notes that a two-week consultation to understand the practical implications of the judgment will be launched mid-May and an updated Code of Practice will be provided to the government by the end of June for ministerial approval. This updated guidance will “provide further clarity”. (For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent))

EAT examines whether racial harassment was carried out “in the course of” employment. The EAT has held that a racist comment made by one Trust employee to another in the context of a discussion about UNISON membership was not made “in the course of” employment. At first instance, the ET found that the racist remark, although made, did not occur "in the course of" employment finding that the membership of UNISON was a personal choice and the conversation which took place related to a personal dispute with UNISON. Significantly the ET concluded that the Trust had taken all reasonable steps to prevent such conduct, thus satisfying the defence under section 109(4) of the Act, noting in particular that the Second Respondent had attended an induction session emphasising the Trust’s core values, annual performance assessments covered an individual’s performance against the Trust’s values, those values were displayed on posters in the areas around where the Second Respondent worked and the Second Respondent had undertaken mandatory equality and diversity training just a few weeks before the incident. The EAT upheld the tribunal's decision, noting that the tribunal had appropriately considered the context and evidence, and had not erred in law in its application of the statutory provisions. The decision is likely to be welcomed by employers as an example of proactive engagement with the requirement to take reasonable steps leading to a successful reasonable steps defence. (Campbell v Sheffield Teaching Hospitals NHS Foundation Trust and Mr Wesley Hammond)

Whistleblowing

Court of Appeal upholds EAT finding that external job applicants do not generally have jurisdiction to bring a whistleblowing detriment claim. The Court of Appeal has held that, with the exception of those making applications for NHS roles, job applicants do not have whistleblower protection. In a case which has been working its way through the courts the Court of Appeal has upheld the decision of the EAT from last year. The Claimant applied for two different positions at the Respondent, and attended interviews, but was unsuccessful in relation to both roles. Following the interviews, the Claimant filed an online police crime report. She alleged that she had been called "mentally insane" during the interview process and that a manager on the interview panel who was the trustee of a charitable trust had committed fraud. The Respondent carried out an investigation into the issues raised, but having found that there was no evidence of wrongdoing, decided not to carry out an appeal. In making that decision the Respondent took into account the extensive investigation already carried out and the impact of a further process on staff involved. The Claimant proceeded to bring whistleblowing detriment claims, asserting that the refusal to hear an appeal was a detriment because she had made a protected disclosure. The Court of Appeal held that external job applicants are not in a materially analogous position to workers or NHS job applicants, who are protected under whistleblowing legislation. While the court acknowledged that external job applicants could be considered as having an "other status" under Article 14 of the European Convention on Human Rights (ECHR), it found that the difference in treatment was objectively justified. The legislation was deemed to pursue a legitimate aim, with measures that were rationally connected to the objective and proportionate, thus not infringing any ECHR rights. (Sullivan v Isle of Wight Council)

Litigation procedure

EAT finds that ET did not sufficiently reason decision not to order disclosure of requested information in disability claim. The Claimant, a duty manager, brought multiple complaints under the Equality Act 2010, citing disability discrimination. The Claimant was disabled by virtue of his arthritis. He sought a case management order for specific disclosure of information regarding reasonable adjustments made for other employees (he specifically requested answers to eight detailed questions regarding disabled employees and adjustments made for them), which was refused by the ET. The Claimant appealed the decision, arguing that the tribunal erred in its application of the legal test for disclosure. The EAT reiterated that the core test is whether disclosure is necessary for the fair disposal of proceedings and whether information is relevant, in terms of being likely to assist or detract from either party’s case. The EAT noted that although a tribunal may order the disclosure of information, this is conceptually different from the disclosure of documents and account must be taken of the work which might be needed to collate the information. The ET failed to carefully consider the Claimant’s application by reference to the relevance of the information to each of his claims. The case will be remitted for reconsideration. (Bari v Richmond and Wandsworth Councils)

ET’s costs award overturned due to misapplication of legal principles. In March 2019, the Claimant brought claims of race discrimination after being unsuccessful in his application for a part-time lecturer position. The Claimant was initially a litigant in person, but in September 2020 he secured legal representation. The Claimant’s claim was unsuccessful and the Claimant was ordered to pay £20,000 in costs on the basis that the Claimant should have realised his claim had no reasonable prospect of success, especially after obtaining legal representation. The Claimant appealed against this order. The EAT allowed the Claimant’s appeal noting that the ET had repeatedly stated that it assumed that once the Claimant became represented he would have been advised that his claim had not reasonable prospect of success. The EAT found that the ET erred in law by assuming the content of privileged legal advice without evidence. The EAT highlighted that the ET failed to consider the challenges faced by claimants in discrimination cases, particularly when unrepresented and that just because a claim is not successful does not mean that it was unreasonable for it to have been brought in the first place, as a lot can often turn on witness evidence given at the final hearing. Consequently, the EAT allowed the appeal and remitted the case for reconsideration. (Madu v Loughborough College)

President of ET publishes letter re presentation of claims. On 16 April 2025 the President of the Employment Tribunal of England and Wales published a letter in relation to the presentation of claims. In particular, with effect from 21 May 2025, the new Practice Directions take effect. Significantly, from this date ET3 response may no longer be filed by email as a matter of course. Emailed responses will only be accepted in exceptional and evidenced circumstances.

Employment Rights Bill

Employment Rights Bill (ERB) progresses through the House of Lords. On 08 April 2025 the Chair of the Joint Committee on Human Rights wrote to the Secretary of State for Business and Trade to raise questions about whether the third-party harassment provisions strike the right balance between Article 8 (the right to private and family life) and Article 10 (the right to freedom of expression). The letter notes that issues may arise in the case of third parties expressing opinions which fall under one of the protected characteristics under the Equality Act. The letter requested a response by 29 April 2025 in order to inform the next House of Lords debates in relation to the ERB. Alongside this, on 22 April 2025 the House of Lords published an amendment paper containing proposed amendments to the ERB, including in particular in relation to the zero hours and low hours worker provision of the ERB.

Other interesting things

Courts and Tribunals Judiciary publishes updated guidance on AI. On 14 April 2025, the Courts and Tribunals Judiciary published updated guidance for judges on the use of AI. The guidance covers key risks and issues associated with AI and suggestions for minimising those risks, including understanding AI’s key limitations, being aware of bias and maintaining security.