Welcome to the Summer Employment Law Update. In our employment and HR updates, Tom Evans and Melissa Scott outline recent cases, updates to the law and other Employment and HR news. If you want to ensure you don’t miss the latest in Employment and HR, you can subscribe to our Employment Law Update Newsletter.
CASE LAW UPDATES
THE DEFINITION OF “WOMAN” IN THE EQUALITY ACT 2010 IS BASED ON BIOLOGICAL SEX
On 16 April 2025, the Supreme Court handed down their much-anticipated judgment in the case of For Women Scotland Ltd v The Scottish Ministers.
The Supreme Court unanimously ruled that the terms ”man”, “woman” and “sex” in the Equality Act 2010 refer to a biological man, a biological woman and biological sex. The impact of this decision is that the legal definitions of “man” and “woman” do not include transgender men and transgender women. Therefore, it is lawful to exclude a transgender man or woman from single sex spaces, including toilets and changing rooms.
When passing its judgment, the Supreme Court made it clear that the Equality Act 2010 does and will continue to protect transgender people from discrimination. Transgender people are protected under the Equality Act 2010 as gender reassignment is one of the nine protected characteristics. In addition, the Supreme Court made it clear that many of the sex discrimination protections still can protect transgender people as these protections extend to perception or association with a particular gender.
Key takeaways
This is a landmark judgment, which leads to some key takeaways for employers to be mindful of, including the following:
- Gender critical beliefs remain protected under the Equality Act 2010, if expressed appropriately.
- Transgender people remain protected from all forms of discrimination and harassment under the Equality Act 2010. Employers should be mindful of the upset this judgment has caused to the transgender community.
- The rights of those with gender critical beliefs and transgender people must be balanced in an appropriate and proportionate way; one should not be automatically favoured over the other.
- Having single sex facilities can be lawful, but must be objectively justifiable as a proportionate means of achieving a legitimate aim. Employers should be consideration of the fact that transgender people are protected from discrimination and harassment under the Equality Act 2010 and therefore are entitled to appropriate facilities.
- Employers should ensure that any relevant policies, procedures, and training are reviewed and updated. Employers should also consider undertaking risk assessments to evaluate whether any aspects of their organisation will be impacted by the judgment and assessing any associated risks which are identified.
EXTERNAL JOB APPLICANTS FALL OUTSIDE THE SCOPE OF WHISTLEBLOWING PROTECTION
The Court of Appeal’s decision is Sullivan v Isle of Wight Council, has confirmed that whistleblowers who are external job applicants are not protected under Public Interest Disclosure Act 1998 and Employment Rights Act 1996.
Facts
The claimant, applied for two positions with the respondent, and was unsuccessful in both applications. Following which, the claimant filed a crime report for verbal assault during her interview, and she also disclosed financial irregularities relating to a charitable trust which one of members of the interview panel was connected to. Following which the respondent undertook an investigation which found the claimant’s allegation were unsubstantiated. On this basis, the respondent denied the claimant’s right to appeal the rejection of her job applications. Subsequently, the claimant brought a claim alleging that her disclosures amounted to protected disclosures and that she faced detriment by being denied the right to appeal.
Employees, Workers, and NHS job applicants are protected under the Employment Rights Act 1996 against suffering detriment or dismissal because of them having blown the whistle. As an external applicant, the claimant fell outside the statutory definition of a ‘worker’ or ‘employee’ under the Employment Rights Act 1996, meaning that she fell outside of the scope of protection for whistleblowers.
The claimant argued that as an external applicant she was in a comparable position to that of workers or NHS job applicants. However, both the Employment Tribunal and the Employment Appeal Tribunal rejected the claimant’s argument. Not satisfied with this outcome, the claimant appealed to the Court of Appeal. The Court of Appeal also rejected her argument, ruling that the exclusion of external applicants from whistleblowing protection was objectively justified, as the legislation pursues a legitimate aim and the means adopted to achieve that aim are proportionate.
Key takeaways
External job applicants who are not applying for NHS positions cannot claim protection under the Employment Rights Act for detriments suffered due to making protected disclosures.
ASKING A WOMAN WHY SHE WANTED TO WORK AMOUNTED TO SEX DISCRIMINATION
The Employment Tribunal have ruled in Pereira v Wellington Antiques Ltd and J M Wellington that questioning why a woman wished to work amounted to an act of sex discrimination.
Facts
During her interview, the business owner of the respondent asked the claimant why she wanted to work as her husband had a good job.
The Employment Tribunal found that this remark alone was a discriminatory and sexist question which amounted to an act of direct sex discrimination.
In its finding, the Employment Tribunal found that the question would not have been asked of a man and reflected stereotypical assumptions about gender roles. The Tribunal rejected the respondent’s defence that the question had been asked out of genuine concern. Highlighting that the discriminatory and sexist nature of the question could not be counterbalanced by good intentions.
Key takeaways
Employers should make it clear to their employees that the expression of outdated ideologies, like the ones seen in this case, could amount to discrimination and are should not be used in the workplace. Employers should ensure that their reporting processes are well communicated to their employees, as well as ensuring that their policies are up to date and that regular training is delivered to their employees.
UNFAIR DISMISSAL: THE COURT OF APPEAL HIGHLIGHTS IMPORTANCE OF EMPLOYER’S HAVING CLEAR POLICIES AND PROCEDURES IN PLACE
The Court of Appeal have ruled in the case of Hewston v Ofsted, that it was unfair to dismiss an employee, for a one-off incident of touching a pupil during an inspection visit.
Facts
In this case the claimant was a school inspector. During an inspection visit he brushed water off the hair of a 12-year-old pupil and put his hand on the pupil’s shoulder. This conduct was reported to the respondent by the school in a letter of complaint.
The respondent’s position was that the reported conduct amounted to an act of gross of misconduct and accordingly they chose to discipline the claimant resulting in his dismiss for gross misconduct. The claimant brought claims of unfair dismissal.
The Employment Tribunal found the dismissal to be fair. However, on appeal the Employment Appeal Tribunal found the dismissal to be unfair – the Court of Appeal shared this view. The dismissal was also found to have been procedurally unfair, as the claimant did not have sight of the school’s complaint letter or the pupil’s statement during the disciplinary procedure.
In reaching their decision, the Court of Appeal found that the absence of a ‘no touch’ policy or relevant training, meant that a dismissal in this case was unjustifiable. Without the appropriate training or communication regarding expected conduct, it would not have been obvious to the inspector that his conduct was improper. Therefore, the claimant could not have expected to be dismissed in relation to his conduct.
The Court of Appeal also ruled it was inappropriate for an employer to increase the severity of an employee’s conduct because an employee fails to show remorse for their actions.
Key takeaways
The major takeaways from this case for employers is the importance of having clear disciplinary policies in place and the necessity of employer’s making it clear and providing training on employee’s expected conduct.
VICARIOUS LIABILITY AND THE ‘ALL REASONABLE STEPS’ DEFENCE
In the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust & Hammond, the Employment Appeal Tribunal has clarified the scope of an employer’s liability for harassment where the alleged incident arises in a trade union context.
Facts
In this case the claimant, a black man, worked for the NHS Trust as Branch Secretary for UNISON. The claimant was involved in a heated argument with a colleague regarding union fee deduction. During the argument, his colleague directed racist comments at the claimant.
Subsequently, the claimant brought a claim of racial harassment against his colleague and Sheffield Teaching North Hospitals NHS Foundation Trust.
The tribunal found that the racist comments had been made but not ‘in the course of’ the claimant’s employment. The Employment Tribunal also found that the first respondent (the Trust) had taken all reasonable steps to prevent racial harassment in the workplace. The claimant appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal dismissed the claimant’s appeal. In its judgment, the Employment Appeal Tribunal concluded that the racist comment was made during working hours and on the Trust’s premises, but it was not ‘in the course of employment’ but rather in the context of union activity between two union members, and therefore the Trust was not vicariously liable for the conduct of the second respondent.
The Employment Appeal Tribunal also found that the Trust had taken all reasonable steps to prevent harassment. The steps the Trust took included; visible promotion of the Trust’s values (‘affording dignity, trust and respect to everyone’), mandatory training on equality and diversity issues every three years, an induction which focused ‘acceptable behaviour at work’ and the Trust’s values and annual performance assessments which included consideration of compliance with the Trust’s values.
Key takeaways
This case serves as a helpful indicator of what steps an employer can take to prevent harassment in the workplace.
For further advice on recent Employment Law Changes please contact the employment team at employment@dtmlegal.com or call 01244 354 800 / 0151 321 0000
