Employment Law Alert UK – September 2025

Whistleblowing

Former employee’s whistleblowing detriment claim fell within the “employment field”, but failed to establish causation. The EAT has held that the Tribunal erred in its analysis of the scope of s47B ERA with respect to the Claimant’s whistleblowing detriment claim, but that its conclusions on causation were sound. The Claimant was employed as a junior doctor from August 2013 to August 2014. In 2014, he raised a number of concerns in relation to patient safety, following which he brought a whistleblowing detriment claim. This claim was funded through a crowdfunding website, but was withdrawn by the Claimant after his own evidence. In 2019 the Claimant sought to bring a further claim alleging that public statements made by the Respondent following the settlement of his earlier claim, caused him detriment. The Tribunal concluded that the claim fell outside the scope of s47B of the Employment Rights Act 1996, as the alleged detriments occurred after the employment relationship had ended and were not "in the employment field"; the Claimant was not acting ‘in employment’, but as a ‘crowdfunded litigant’. The Tribunal also found that while one statement constituted a detriment, it was not materially influenced by the protected disclosures. On appeal, the Employment Appeal Tribunal upheld the Tribunal’s findings on causation and detriment but identified errors in the Tribunal’s reasoning on the scope of s47B. Importantly it reiterated that a Claimant can be protected from whistleblowing detriment even after his or her employment ends, where a detriment is closely connected to that employment. However, in the present case the Tribunal’s errors in analysis were deemed immaterial to the outcome, and the appeal was dismissed. (Dr Christopher Day v Lewisham and Greenwich NHS Trust)

Litigation procedure

Tribunal right to strike out second claim which Claimant knew about prior to hearing of first claim. The EAT has upheld the decision of the Tribunal that the Claimant’s second claim was rightly struck out as it amounted to an abuse of process. The Claimant, who was dismissed in April 2020, brought his first claim in August 2020 alleging that his dismissal was an act of victimisation. The claim was listed for a hearing in July 2022. Prior to that, in May 2022 the Claimant was informed that three job applications which he had made to the Respondent had been unsuccessful. He issued a second claim in September 2022 regarding those unsuccessful applications. The Tribunal found that the Claimant could and should have applied to amend his first claim to include the second claim, as he was aware of the relevant facts before the final hearing of the first claim. Interestingly, the Tribunal expressly recognised that the amendment application might not necessarily have been successful, in which circumstances the Claimant would have had to bring a separate claim (as he had done). The Employment Appeal Tribunal upheld the decision, finding no error in the Tribunal’s conclusion that the second claim amounted to an abuse of process - by failing to bring the amendment application, the Claimant had taken away the Tribunal’s opportunity to decide how best to allocate time and resources to deal with the two claims. (Mr Andras Szucs v GreenSquareAccord Ltd)

Tribunal entitled to refuse amendment to introduce disability discrimination claims. The EAT has held that a Tribunal was entitled not to allow the Claimant to introduce disability discrimination claims to her claims of unfair dismissal, sex discrimination and religion or belief discrimination. The Claimant, was employed as a prison officer but was dismissed for failing her probation. The Claimant (acting as a litigant in person) brought various employment tribunal claims, the scope of which was discussed and confirmed during two preliminary hearings. Following disclosure of an Occupational Health report indicating she might be considered disabled, the Claimant sought to amend her claim to include disability-related complaints. The Tribunal refused the amendment, finding it would significantly expand the legal and factual enquiry, cause hardship to the Respondent, and was raised late without good reason. Interestingly, it was accepted that factually the Claimant alleged that she was dismissed because she failed to meet performance targets and that she was unable to do so because of sickness absence. It was also accepted that prior to disclosure the Claimant could not have known that her depression and anxiety could amount to a qualifying disability. However, significant weight was given to the fact that new heads of claim would give rise to further issues and have a significant impact on the litigation. It was also noted that the Claimant had waited 4 months before issuing her application to amend. The Employment Appeal Tribunal upheld the decision, concluding that the Tribunal had properly balanced the injustice and hardship to both parties and had not erred in law or principle. (CX v Secretary of State for Justice)

Employee relations

Tribunal rightly dismissed automatic unfair dismissal claims, but should have properly considered ordinary unfair dismissal claim. The EAT has found that the Tribunal did not err in law in finding no causal link between the alleged protected disclosures and the actions taken by the Respondent. However, it did err in relation to the Claimant’s ordinary unfair dismissal claim by failing to analyse the appeal process. The Claimant, a Senior Underwriter, alleged that he was subjected to detriments and unfairly dismissed due to raising concerns about a potentially fraudulent insurance claim. The Respondent investigated the Claimant’s concerns, and found no evidence of fraud. In March 2021 the Claimant was put on a PIP, and later dismissed. The Tribunal found that although some of the Claimant’s disclosures (in November 2019 and May 2020) were protected, the alleged detriments, including the imposition of performance objectives and the PIP, were not materially influenced by the disclosures. The Tribunal also held that the principal reason for the Claimant’s dismissal was a breakdown in trust and confidence (due to the Claimant’s refusal to participate in the PIP and persistently accusing the company of fraud), not the protected disclosures. The Employment Appeal Tribunal upheld the Tribunal’s findings in relation to the whistleblowing claims, concluding there was no error of law in its reasoning or conclusions. However, this was not the same for the ordinary unfair dismissal claim. The Tribunal failed to consider the appeal against dismissal in its overall analysis of the fairness of the Claimant’s dismissal. (Mr O Argence-Lafon v Ark Syndicate Management Limited)

DEI

Government publishes technical guidance on neonatal care leave and pay. On 22 August 2025 the DBT published employers’ technical guidance on neonatal care leave and pay, which was introduced earlier this year. The 35-page guidance is comprehensive and includes worked examples in relation to when neonatal care leave can be taken and in scenarios involving multiple births / separate periods of care. Guidance is also provided on the information which employees must provide, how much neonatal care leave and pay is accrued, and when neonatal care and leave can be taken. It includes a section on calculating the relevant week and average earnings and the records which employers should keep.

Government publishes research and analysis on improving gender equality in the workplace. On 11 August 2025 the Office for Equality and Opportunity published a report on actions for employers to improve gender equality in the workplace. The guidance advocates a “data driven approach” to achieve the most effective results. It explores hiring and selection, talent management, learning and development, inclusion and retention and leadership and accountability. Within each focus area is both “effective actions” (where there is strong evidence showing that implementation is effective) and “promising actions” where research is needed to evidence effectiveness.

Data protection

ICO publishes consultations on changes introduced by the Data (Use and Access) Act 2025. On 21 August 2025 the ICO launched two public consultations. The consultations concern new guidance on data protection complaints and the new lawful basis for processing personal data. The draft guidance sets out the process which organisations should have in place (by June 2026) for the handling of data protection complaints. The second consultation clarifies the new “recognised legitimate interest” for the processing of personal data by providing details on the new legal basis, and clarifying how it differs from the existing “legitimate interests” lawful basis. The consultations close on 19 and 30 October 2025 respectively.

AI

UK Law Commission publishes discussion paper on AI and law. On 31 July 2025, the UK Law Commission published a discussion paper titled AI and the Law. The Paper examines legal issues raised by AI in England and Wales and aims to foster discussion on areas most in need of legislative reform. It’s not focussed on employment but covers lots of interesting issues with relevance to the employment context and the explosive growth of AI in HR technology.