Employment Law Alert UK – June 2025

DEI

EHRC launches consultation following decision in For Women Scotland. On 20 May 2025 the EHRC launched a consultation on its proposed changes to the EHRC Code of Practice for services, public functions and associations following the UK Supreme Court ruling in For Women Scotland. The consultation closes on 30 June 2025. The EHRC has indicated that the final Code will be submitted to the government by the end of July and may then be laid before Parliament, but there is concern that the process may take significantly longer. No comment has been made about whether the Code of Practice on Employment will also be updated. On 28 May 2025 the Scottish Government updated that it has met with the EHRC and will continue to work alongside the EHRC as they update the Code of Practice.

Former employee's age discrimination claim re changes to LTIP dismissed. The Court of Appeal has upheld the dismissal of the Claimant’s claim of indirect age discrimination. The Claimant, a former employee of RB Health, alleged that beneficial changes to the Long Term Incentive Plan (LTIP) by RB Group which excluded employees who had already left employment constituted indirect age discrimination, as they required participants to be employed as of 18 September 2019 to benefit from amended performance conditions. Specifically, changes were made so that 50% of awards could vest regardless of the performance of RB Group shares, provided that an individual was employed on 18 September 2019, when the changes came into effect. The Claimant retired on 30 June 2019. Under the previous rules, which applied to the Claimant, RB Group performance meant that the Claimant’s award did not vest. The EAT found that RB Group was not acting as an agent for RB Health when amending the LTIP, and thus RB Health was not liable under sections 109 and 110 of the Equality Act 2010. Furthermore, the Tribunal concluded that the LTIP changes were a proportionate means of achieving the legitimate aim of retaining staff, dismissing Mr Fasano's appeal on the grounds of justification. (Amedeo Fasano v Reckitt Benckiser Group PLC and Reckitt Benckiser Health Ltd)

Comparing employee to Darth Vader constituted detriment. The ET has held that the Claimant was subjected to detriments by her employer due to making protected disclosures. The Claimant, who worked as a Training and Practice Supervisor for NHS Blood and Transplant, claimed constructive unfair dismissal, disability discrimination, failure to make reasonable adjustments, and whistleblowing detriment. The Claimant made several disclosures to the Respondent, including concerns about donor safety checks and training shortcuts, which she believed endangered health and safety. Further to this the Claimant was characterised as “Darth Vader” in a personality-type questionnaire which was filled out on her behalf. She also attempted to retract her resignation from the Respondent (three weeks after she resigned for “personal reasons” which was refused). The Tribunal dismissed the Claimant’s claims of constructive unfair dismissal, direct disability discrimination, and failure to make reasonable adjustments, but upheld her claim regarding detriments from protected disclosures. The Tribunal determined that the refusal to allow Mrs Rooke to retract her resignation and the "Darth Vader Incident" were influenced by her protected disclosure concerning donor safety checks. The Tribunal concluded that these actions were more than trivial influences on the Respondent's treatment of Mrs Rooke, highlighting the importance of addressing employee concerns and disclosures appropriately. (L Rooke v NHS Blood & Transplant, Remedy)

EAT overturns dismissal of race discrimination claim – the context of complaint should have been properly considered. The EAT has overturned the ET’s decision that the Claimant's grievances did not amount to protected acts under the Equality Act 2010. The Claimant, the only black employee at her workplace, raised grievances about differential treatment and bullying. The EAT found that the ET applied too narrow a definition of what could constitute a protected act and failed to adequately consider the context, including the employer's understanding of the complaint – where the employer would know that the Claimant was the only black employee and the complaint was specifically about difference in treatment, that fact should be considered. The EAT highlighted inconsistencies in the ET's findings and remitted the case for reconsideration, emphasising the importance of context in discrimination claims. This case serves as an important one for employers to take note of when grievances are raised, given the expectation that an employer will take account of the broader context to the allegations. (Ms M Kokomane v Boots Management Services Ltd)

Court of Appeal dismisses part-time workers claim but gives leave for appeal to Supreme Court. The Court of Appeal upheld the EAT’s decision regarding the interpretation of causation for the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Claimant was a part-time taxi driver who, alongside other taxi drivers, was required to pay a flat circuit fee, regardless of the number of hours worked during a week. The Claimant brought a claim arguing that this amounted to less favourable treatment on account of his part-time worker status. The EAT found that while his part-time status was an effective cause of the treatment, it was not the sole cause, and therefore, following present authorities (notably McMenemy v Capita Business Services Ltd), the claim could not succeed. The Court of Appeal upheld the EAT’s decision, following the rules of precedent, however questions were raised about the soundness of the decision in McMenemy, and it was suggested that the Regulations should be construed to provide protection where part-time status is an effective cause of less favourable treatment, even if not the sole cause. The decision highlights the ongoing challenge of interpreting the scope of protection for part-time workers under UK law, but it is hoped that the case will be appealed to the Supreme Court. (Augustine v Data Cars Limited).

Jurisdiction

EAT finds jurisdiction to hear journalist’s claims against US-based employer. The EAT has upheld the decision of the ET that it had territorial and international jurisdiction to hear claims brought by a peripatetic journalist, who was employed under a contract governed by US-law. The Claimant, Ms Bhatti, is a British citizen, who was employed as a broadcast journalist under a US contract of employment. From 2013 to 2016 the Claimant primarily worked in Asia. From March 2017 she requested to become London-based (and work for the Respondent’s UK subsidiary), having travelled back to London for medical treatment in connection with a foot injury which she sustained while working in Jerusalem. Her employer refused her request to work from London aside from one day covering the London Bridge bombing in June 2017. In August 2017 the Claimant was informed that her contract would not be renewed. In May 2018 she brought claims in the ET for discrimination, victimisation, unfair dismissal, equal pay and holiday pay. The ET found that from March 2017 her employment did have a close enough connection to the England and Wales for it to have jurisdiction over her claims – the evidence showed that the Claimant did go to London to work. The EAT upheld the ET’s conclusions finding that the ET had correctly applied the “close connection” test and properly considered the Recast Brussels Regulation. There was also no procedural irregularity with the service of documents – the Respondent could not avoid the international jurisdiction of the ET over the claim in circumstances in which the claim documents were served on its London subsidiary which brought them to the attention of the Respondent. (Cable News International Inc v Ms Saima Bhatti)

Employee relations

HR consultants were not agents for dismissal decision. The EAT has dismissed the Claimant’s appeal against the decision to strike out his claims of unfair dismissal against two HR consultants, finding that whilst the HR consultants could be agents of the Respondent with respect to conducting their investigations and making their reports, it could not be argued that they were agents in respect of the decision to dismiss. The Claimant, a former director of the Respondent, raised allegations of financial impropriety which he claimed were protected disclosures. Alongside this other employees of the Respondent, raised grievances against the Claimant. Two HR consultants were engaged, one to investigate the grievances (some of which was upheld) and another to conduct a disciplinary hearing and make recommendations. The Claimant was dismissed, and brought claims of whistleblowing detriment against the HR consultants. The ET found that the HR consultants, who conducted grievance and disciplinary investigations, were not acting as agents of the employer in relation to the decision to dismiss. The EAT upheld the ET decision, concluding that the Claimant had no reasonable prospect of successfully establishing an agency relationship or liability for the dismissal. This case provides helpful clarity for employers who may engage third parties to assist with employee relations matters or internal investigations. (Mr Neeraj Handa v The Station Hotel (Newcastle) Ltd & Ors)

TUPE

No TUPE transfer of vicarious liability for acts of employees. The High Court has held that vicarious liability for torts committed by employees against a third party prior to a TUPE transfer did not transfer from the transferor to the transferee. The Claimant sought damages in respect of injuries suffered while in a hospital owned and managed by Huntercombe (No.12). The business of Huntercombe (No.12) was the subject of a TUPE transfer, in connection with which two employees were transferred from Huntercombe (No. 12) to Active Young People Ltd. The High Court examined whether the alleged vicarious liability transferred under TUPE and concluded that such liabilities did not transfer, as they were not sufficiently connected to the employment contracts under TUPE's provisions. The decision highlights the complexities of determining liability transfers in the context of business sales and employee rights. (ABC v Huntercombe (No.12) Limited & Ors)