Employment Rights Act and Employment Litigation in Review – 2025

In 2025 we have seen significant focus on defining the boundaries of whistleblowing protection afforded under the Employment Rights Act, particularly focussing on cases where the Tribunal is required to distinguish between detriment and automatic unfair dismissal claims, whilst also considering the information in the mind of the decision maker and employer at the relevant time. Just last month the Court of Appeal in Rice v Wicked Vision Ltd & anor confirmed that, as things stand, an employee dismissed for whistleblowing can bring a detriment claim against a co-worker under section 47B of the Employment Rights Act 1996 (for which their employer is vicariously liable and without the co-worker being a party to proceedings), in addition to an automatic unfair dismissal claim against their employer. Permission to appeal has been granted and at this date of writing, we await confirmation as to whether Rice v Wicked Vision will proceed to the Supreme Court to provide some much needed re-clarification.

Alongside this, in Henderson v GCRM Ltd & ors the EAT held that a senior manager who took the decision to dismiss the Claimant could not be held personally liable for whistleblowing detriment (where she was unaware of the Claimant’s protected disclosures). However, in that case the Claimant’s automatic unfair dismissal claim was remitted for reconsideration having found that the ET failed properly to engage with the question of whether the dismissing manager had been manipulated and induced to adopt a false pretext for the Claimant’s dismissal. We anticipate whistleblowing litigation remaining firmly in the spotlight as we move into 2026.

In a landmark ruling, the Supreme Court confirmed earlier this year in For Women Scotland Ltd v The Scottish Ministers that “man”, “woman”, and “sex” refer to biological sex for the purposes of the Equality Act 2010, with significant implications for single-sex spaces, workplace facilities, and service provision. The judgment has the potential to significantly impact who can access women-only services but we are still waiting on an updated Code of Practice from the EHRC, which it is hoped will give a practical steer for employers navigating how to balance sensitive competing rights in this area. It is understood that the government is still considering the EHRC’s final guidance and that publication is being delayed because of the fear of a potential “backlash”. In the meantime For Women Scotland has launched another legal challenge over prisons policy and there are a number of separate employment tribunal cases in the pipeline which may offer a blueprint for the practical application of the Supreme Court decision. During December 2025, judgment was delivered in Sandie Peggie v Fife Health Board & anor. The Scottish Tribunal upheld claims of harassment brought by a nurse in connection with a trans woman being authorised to use female changing rooms, but dismissed claims for discrimination and victimisation. The decision will most likely be appealed.

In March, the Court of Appeal handed down judgment in the long-standing case of Higgs v Farmor’s School & ors, finding that the dismissal of a school counsellor for Facebook posts constituted unlawful direct discrimination on the grounds of religion or belief. The Court of Appeal held that the Claimant’s dismissal was not objectively justified, and was disproportionate. In a similar vein, in Islam-Wright v Arts Council England and C Ashcroft the ET held that the Arts Council had unfairly dismissed the Claimant in connection with her expression of support for trans colleagues. In both cases, the employer responses were found to be disproportionate, and as such, the cases act as a stark cautionary tale for employers. In the first, the Court of Appeal acknowledged that it was understandable that the school had taken objection to the Claimant’s Facebook posts, but dismissing her went too far. Similarly, in the second case, the Arts Council was criticised for failing to follow its own process: there were no informal conversations with the Claimant before inviting the Claimant to a disciplinary hearing. This remains an extremely challenging area of risk for employers to manage and likely to remain firmly in the spotlight as we move into 2026.

The EAT has emphasised the need for employers to proactively consider and evidence alternative employment options in redundancy situations, as seen in Hendy Group Ltd v Mr Daniel Kennedy. The EAT noted that the Claimant had proactively applied for five separate roles at the Respondent, without any assistance from HR, and that there was an absence of evidence of steps which a reasonable employer might take in this regard. Whilst this case might be at the extreme end of the spectrum, it nevertheless acts as a helpful reminder of the importance of pro-active engagement from an employer to support an employee exploring alternative employment options and of the Tribunal’s scrutiny of the fairness of redundancy selection and consultation processes. With the cap on protective awards for failure to collectively consult in larger exercises increasing from 90 to 180 days, and the ability for tribunals to uplift awards by 25% for non-compliance with the Code of Practice on Dismissal and Re-engagement, we might fairly expect rigorous scrutiny of these processes to continue.

We have also seen the Employment Tribunals give careful consideration to procedural fairness in dismissal processes connected with conduct or capability. In Alom v Financial Conduct Authority the EAT upheld the fairness of the Claimant’s dismissal finding that minor procedural imperfections did not render the disciplinary process unfair. However, in Remillard v JP Morgan Chase Bank, procedural failings, specifically the Respondent’s failure to disclose key documents during the disciplinary process and unreasonable delays in providing the outcome once relevant information had been gathered, led to a finding that the Claimant had been unfairly dismissed. These themes have been echoed in subsequent cases. Delay was similarly problematic in the recent case of Ms C O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust and a failure to follow the employer’s own procedures led to an adverse finding in Zen Internet Ltd v Mr Paul Stobart. Whilst there is clearly a threshold for the trivial, these cases do indicate the Tribunal’s willingness to careful consider the steps which an employer has taken, and to consider whether they have been carried out expeditiously, and crucially, in line with the employer’s processes.

The EAT and Court of Appeal have reiterated the importance of compliance with early conciliation requirements, but have also confirmed that tribunals retain discretion to allow amendments to cure defects in appropriate cases. Perhaps most importantly, the courts need to ensure that any decisions in this area are carefully reasoned. In HSBC Bank plc v Chavalier-Firescu the Court of Appeal found that the ET had not properly explained its reasons for refusing to extend time and striking out the Claimant’s claims. This would have involved describing the Claimant’s claims, establishing when the Claimant knew she had arguable claims and its assessment of the Claimant’s explanations for not bringing those claims sooner.

In Reynolds v Abel Estate Agent Ltd & ors the EAT found that the Claimant’s failure to follow the early conciliation process with ACAS did not automatically bar her claim from proceeding. It will be interesting to see whether the courts will be more or less willing to be flexible when it comes to early conciliation with the newly extended 12 week early conciliation period.

There have been a steady stream of disability discrimination cases this year and we have seen detailed scrutiny of preliminary findings in relation to disability. In Harry Stedman v Haven Leisure Ltd and Alcian Roofe-Stewart v MacIntyre Care Ltd, initial findings that the Claimants did not have a qualifying disability were remitted for reconsideration in both cases. In Stedman the EAT helpfully outlined the following key principles: (i) a Tribunal must compare the Claimant’s abilities as they were with the impairment against what they would hypothetically be without it; (ii) it suffices if the Claimant experiences a substantial adverse effect on the ability to carry out just one day-to-day activity, and (iii) it is not permissible to weigh up the Claimant’s ability to carry out one day-to-day activity as against another in order to arrive at an overall assessment.

Helpfully for employers fearing a creep in the scope of their obligations to make reasonable adjustments, in Hindmarch v North-East Ambulance NHS Foundation Trust the EAT clarified that “it cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect.” In that case, where the provision or otherwise of requested PPE would not actually result in the Claimant returning to work, it was not found to be a reasonable adjustment. In a similar vein, in Mr Colliander-Smith v Veritas Asset Management LLP, the Respondent, represented by us, successfully defended claims for disability discrimination, where the Claimant sought to argue that he was entitled to a significant discretionary bonus, despite only having worked 18 days that year due to illness.

We have seen interesting cases this year in relation to open justice. In the first, DBP v Scottish Ambulance Service, the Claimant applied for permanent anonymity in respect of a judgment from a claim which she had brought more than a year previously. The claim included an account of her previous self-harm and suicide attempt, from which she feared public judgment and further harm to her from continued publication. The EAT did not immediately dismiss the application for a lack of evidence, instead remitting the matter for reconsideration. Perhaps most interestingly the EAT noted that post-hearing applications for anonymity are increasingly common due to the online Register, and that the principle of open justice must be balanced with the need to protect vulnerable individuals. Demonstrating a similar willingness to protect certain information, in F v J the EAT held that the ET set too high a bar for the Claimant's anonymity application (where the Claimant feared that information about his Asperger’s syndrome could affect his future employability) and that anonymity in that case only resulted in a relatively minor interference with open justice.

At the other end of the spectrum in Cohen v Mahmood, the EAT rejected an application by the Claimant, a self-described ‘student journalist’, to access documents remotely, finding insufficient justification for how the documents would advance the open justice principle. Concerns were raised about the potential misuse of sensitive materials, as the Claimant herself was not transparent in her responses to questions asked in connection with the proceedings.

In Forest v Amazon Web Services, the Claimant contends that the metadata of certain key documents illustrates that the true decision-maker in relation to his dismissal was not the person identified to him, but rather others who had modified key documents at the relevant time. At a Preliminary Hearing the ET refused to strike out any of the Claimant’s claims. The court also found 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 potential new implications of technological expertise in proceedings. Alongside the advent of the use of AI in the workplace generally, this case sends a strong signal of a changing litigation landscape, and the increasing importance of technology and the use of data.

In Augustine v Data Cars Limited 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 each week. The Court of Appeal upheld the EAT’s decision that following present authorities, the Claimant’s part-time status was an effective cause of the treatment, but not the sole cause, so his claim for less favourable treatment could not proceed. However, questions were raised about the soundness of existing precedent. The decision highlights the ongoing challenge of interpreting the scope of protection for part-time workers under UK law. It is hoped that the case will be appealed to the Supreme Court.