In the case of For Women Scotland Ltd v The Scottish Ministers the Supreme Court was tasked with determining the interpretation of “woman” in the Equality Act 2010 and whether this definition includes a trans woman with a Gender Recognition Certificate.  In this briefing, we consider the decision and what it means for employers.

What happened in this case?

In determining this question, the Supreme Court recognised that women have historically suffered from discrimination and that the trans community has historically been, and remains, a vulnerable community.  It also confirmed that it was not the job of the Supreme Court to determine the meaning of the word “woman” in any other context than the specific context of the Equality Act 2010 (the Act), nor “to adjudicate on the arguments in the public domain on the meaning of gender or sex.” Instead, the Court’s task was to interpret the words used by Parliament in the Act, considering the context and purpose of the legislation.

The Act defines “sex” as binary, referring to “man” and “woman”. The Gender Recognition Act 2004 states that a person’s gender becomes the acquired gender for all purposes upon receiving a full Gender Recognition Certificate (GRC), however, this remains subject to other legislation.  Therefore, the Court had to decide whether “sex” in the Act excluded this effect of the Gender Recognition Act 2004.

What was decided?

The Supreme Court considered various provisions throughout the Act to decide what Parliament had intended “woman” to mean.  It did not accept that there could be different definitions in relation to different parts of the Act, unless this had been specifically stated within the Act itself, which it was not. The Court emphasised the importance of a clear and predictable interpretation of statutory provisions, which could apply throughout the Act. It therefore found that because some provisions cannot mean anything other than biological sex (the sex assigned at birth), this must be true throughout the Act.

For example, the Court considered the provisions in relation to pregnancy, sex and maternity discrimination. It concluded the word “woman” within these provisions could only relate to biological women (which could include trans men), because it was not possible for a man or a trans woman to become pregnant, give birth, take statutory maternity leave or breastfeed. If a certificated sex meaning were used, this would exclude trans men, who may still be able to become pregnant, give birth and breastfeed, from protection.

The Court went on to consider single sex spaces and other provisions which allow for services to be provided only to one sex. It found that it could not include trans people with a GRC because, in some cases, such as providing cervical screening to women and prostate checks to men, including trans people with their certificated sex would be illogical because they would require the test for their biological sex.

It also found that single sex spaces would no longer be single sex spaces, within the context of the Act, because allowing someone to enter based on their certificated sex would then mean that there were both sexes present (according to biological sex) and it could no longer be a single sex space. It also held that including those with a GRC was not workable because organisations were not permitted to ask for a GRC, which is a confidential document, and therefore could not have the information required to determine who should be allowed and who should not. This would also create a two-tier system in that one trans woman who for whatever reason did not hold a GRC would not be admitted but another who did would.

The Court noted that trans people still have protection under the Act by both the protected characteristic of gender reassignment and also sex, through perceived discrimination (where someone is discriminated against because they are believed to have a protected characteristic) or associative discrimination (where someone is discriminated against because they are associated with someone who has a particular protected characteristic).

What does this mean for employers?

The Equality and Human Rights Commission has issued updated interim guidance in light of this case and is due to consult on updating its Code of Practice (the consultation will take place in the final two weeks of May).  In the meantime, employers should consider taking the steps below.

• Review policies and procedures: review policies and procedures to ensure they align with the Court’s interpretation of “sex” as biological sex, particularly if there are policies regarding single sex changing rooms and toilets.  It may also affect policies related to maternity leave, pregnancy, gender identity and menopause.  

• Training and awareness: provide training to staff on the implications of the judgment. Ensure that employees understand the distinction between biological sex and gender reassignment and how this affects workplace policies and practices. All staff should be treated with dignity and fairness and employers should ensure that employees are protected from discrimination and harassment.

• Data collection and analysis: if subject to the Public Sector Equality Duty, ensure that data collection and analysis are based on biological sex.

• Communication and support: communicate workplace changes and their implications clearly to all employees. Provide support to those who may be affected by the changes, ensuring a respectful and inclusive workplace environment.

For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Esmat Faiz (EsmatFaiz@bdbf.co.uk) Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In the recent case of Sullivan v Isle of Wight Council, the Court of Appeal considered the issue of whether an external job applicant was protected from detriment relating to whistleblowing.

What happened in this case?

The Claimant applied unsuccessfully for posts with Isle of Wight Council (the Council) in 2019. After being rejected, the Claimant filed an online crime report with the police alleging that she had been the subject of a verbal assault during an interview. She also alleged that one of her interviewers had been submitting fraudulent accounts to a charitable trust.  She also reported these issues to the CEO of the Council and to her MP. She relied upon her letter to her MP as a protected whistleblowing disclosure.

An investigation was carried out by the Council and the Claimant’s complaint was dismissed. The investigating officer advised that, given the Claimant’s behaviour and the exceptional circumstances of the case, and as per the Council’s complaints policy, she was not allowing the Claimant the usual right afforded to employees to refer the matter to a more senior officer for review. This was on the grounds of protecting the Council’s employees.

The Claimant complained to the Employment Tribunal that she had been subjected to a detriment, namely the refusal to allow her to seek a further review of her complaint. She argued that the whistleblowing provisions of the Employment Rights Act 1996 were incompatible with Article 14, read with Article 10 of the European Convention of Human Rights (the Convention), in so far as they protected workers and applicants for NHS posts but not job applicants generally. The relevance of Article 14 was that it prohibits discrimination affecting the rights and freedoms set out in the Convention (including, via Article 10, the right to protection from detriment relating to whistleblowing) on several grounds, including the ground of “other status”. The Claimant contended that being a job applicant fell into this “other status” category.

The Tribunal dismissed the Claimant’s claim, finding that her position was not materially analogous to internal job applicants (i.e. already workers/employees) or to NHS job applicants, who are specifically protected under the legislation due to the NHS’s almost unique characteristics as an employer and for reasons of patient safety.

The Claimant appealed to the Employment Appeal Tribunal (EAT), which upheld the Tribunal’s decision.  The Claimant appealed to the Court of Appeal. The Secretary of State for Business and Trade and the whistleblowing charity Protect were given permission to intervene.

What was decided?

The Court of Appeal dismissed the claim. It disagreed with the Tribunal and the EAT, and held that being a job applicant could amount to “other status” for the purposes of Article 14 of the Convention. It was found that a job applicant was an acquired characteristic, resulting from something that an individual had chosen to do. If a person was subjected to treatment on the ground that they were a job applicant, that was capable of being treatment on the ground of some other status.

However, the Court of Appeal agreed that the Claimant was not in a materially analogous position to either workers or applicants for NHS posts who were protected by the whistleblowing detriment provisions.  The position of someone seeking work was materially different from someone in work, and the extension of whistleblowing protection to applicants for jobs with NHS employers was intended to deal with a specific and urgent problem, enabling a culture where health service staff could make protected disclosures about matters concerning patient safety and treatment without fear of retaliation. Since the NHS comprises different legal bodies and entities, the aim was to ensure that people who might want to move from one NHS body to another would not be deterred from making protected disclosures.

The Court of Appeal also opined that in this case, any difference in treatment caused by the legislation would have been objectively justified since it pursued a legitimate aim and the means adopted to achieve that aim were appropriate and proportionate.

What does this mean for employers?

This situation is likely to be rare in practice for employers, but it is nonetheless helpful to know that employers can take a robust stance on complaints from dissatisfied job applicants which might amount to whistleblowing. However, this case does not change the fact that under the Equality Act 2010, all job applicants remain protected from unlawful discrimination by a prospective employer on the grounds of a protected characteristic (age, sex, race etc).

Parliament had decided twice already that the whistleblowing legislation should not be extended to protect job applicants generally – firstly, when drafting the Public Interest Disclosure Act 1998, and, secondly, in 2015 when Parliament rejected a proposed amendment which would have extended protection to a person who “is or has been a job applicant”. The Court of Appeal said in this case that substantial weight should be given to Parliament’s judgement.

However, the CEO of Protect, the whistleblowing charity who intervened in the case, expressed disappointment in the outcome. Justin Madders MP (Parliamentary Under-Secretary for State for Business and Trade) indicated that he was to meet Protect to discuss the issues on which it is campaigning, and the government was aware of the “long-overdue requirement to look at whistleblowing law”. Whether this case will cause Parliament to look again at whistleblowing protections remains to be seen.

Sullivan v Isle of Wight Council 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Connie Berry (connieberry@bdbf.co.uk), Margaret Welford (MargaretWelford@bdbf.co.uk) or your usual BDBF contact.

Is a disabled employee’s use of abusive and offensive language towards colleagues a sufficient ground to justify dismissal where there is a link between the employee’s behaviour and their disability?  In Duncan v Fujitsu Services, the Employment Appeal Tribunal (EAT) agreed with the Employment Tribunal that, in this case, the answer was “yes” and the EAT dismissed the appeal.

What happened in this case?

The Claimant was employed by Fujitsu from September 2017 until April 2021 when he was dismissed for gross misconduct. Fujitsu had knowledge of the Claimant’s two disabilities: attention deficit hyperactivity disorder (ADHD) and autistic spectrum disorder (ASD). 

During employment, the Claimant raised three grievances, all of which were dismissed. As part of the third grievance, he disclosed “chat logs” which contained messages between himself and two other colleagues which had been exchanged on Fujitsu’s Slack communication system.  These communications contained abusive and offensive language towards other colleagues, such as: “stab, stab, stab”, “imma f***in kill you”, “I just can’t believe how much of a c*** he is”, and “room had been full of business c****s” (redactions by BDBF LLP).

In response, Fujitsu invited the Claimant to attend a disciplinary hearing on 1 March 2021.  On 24 February 2021, he emailed Fujitsu stating that he did not plan to attend the disciplinary hearing, but that it should proceed in his absence.  He sent a document containing his mitigating factors, which included his submission that there was a link between his disability and his use of the offensive language.

On 3 March 2021, the investigating manager emailed the Claimant with 12 questions.  On the same day, he responded stating “I would appreciate no further questions regarding my disabilities”.  On 16 April 2021, the Claimant was dismissed without notice.  The investigating manager found that the comments were inappropriate and offensive, and she dealt with each of the mitigation points that had been raised.

Whilst the investigating manager considered (to the extent possible on the limited information before her) the issue of a potential link between the disability and the offensive behaviour, she concluded that the behaviour was deliberate, repeated, and hateful towards other colleagues.  As such, she considered that the only appropriate sanction in the circumstances was dismissal for cause.

The Claimant appealed that decision but said he would be unable to meet with the appeal manager.  The appeal hearing proceeded in his absence and was, ultimately, dismissed.

The Claimant went on to bring claims of disability discrimination and unfair dismissal.

What was decided?

The Claimant lost his claims and raised one ground of appeal which contained two limbs in the EAT. 

The first limb was that the Tribunal should have considered whether the offensive language arose directly from his disability.  The Claimant argued that he suffered from an “involuntary loss of control of emotion” and that he did “not understand social rules”.  The question for the EAT was whether the Claimant had advanced this argument before the Tribunal.  The EAT found that he had not.  Amongst other matters which persuaded the EAT of this, the Claimant had not led medical evidence on this point.  The EAT considered that the Claimant had, instead, brought his claim based on the basis of their being an indirect link. As such, Mr Duncan failed on this first limb.

The second limb of appeal was that the Tribunal had insufficiently analysed whether his dismissal was a proportionate means of achieving a legitimate aim – if it was not it would amount to disability discrimination.  For example, it was argued that the Tribunal did not appear to have considered whether there were options short of dismissal that would have reduced the discriminatory effect on him.  

The EAT reiterated that this was an objective test.  It held that certain of Fujitsu’s legitimate aims were valid, including, for example, preventing the use of threatening language about managers and colleagues, preventing harassment and other behaviour that leads to a hostile working environment and preventing threats of violence against colleagues (expressed to other colleagues but directed repeatedly and forcefully at colleagues and managers) in any work-related context.

The EAT held that the words used were very strong examples of foul and abusive language towards colleagues and there was no evidence that assured Fujitsu that the offensive remarks would not be repeated.  The EAT found that the Tribunal had carried out its own assessment of proportionality and was entitled to find that the dismissal was justified.  In particular, the Tribunal had considered legitimate aims and found that, on the basis of at least some these, the decision to dismiss because of the abusive communications was a proportionate response with respect to achieving Fujitsu’s legitimate aims.  Accordingly, the second limb of appeal also failed.

What does this mean for employers?

Employer clients should be mindful of employees’ disabilities when subjecting them to disciplinary sanctions.  Even where there is no obvious direct link between an employee’s behaviour and their disability, there may be an indirect link that proves problematic. 

Where that is the case, employers should consider the justification defence and, in particular, whether a lesser sanction than dismissal is appropriate in the circumstances with respect to achieving a particular legitimate aim. 

If a sanction short of dismissal would enable an employer to achieve that legitimate aim, an Employment Tribunal may conclude, once it has done its own analysis, that the decision to dismiss was not proportionate, in which case the employer would be liable for discrimination arising from disability.

Duncan v Fujitsu Services Ltd

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In this 1-hour webinar, BDBF Managing Partner Gareth Brahams and Associate Emma Burroughs explore the legal rights and responsibilities surrounding belief expression in today’s complex work environment. This webinar was originally delivered on 29 April 2025 and reflects our understanding as of that date. Do get in contact with either of the speakers if you would like to discuss any of the issues raised.

To view the PDF webinar slides please click on the image below, or view the recording of the webinar:

https://youtu.be/85bypaD9MVc

Please contact Gareth Brahams (GarethBrahams@bdbf.co.uk), Emma Burroughs (EmmaBurroughs@bdbf.co.uk) or your usual BDBF contact, for further advice.

Earlier this month, the Government published its response to the consultation on strengthening remedies for breaches of the collective redundancy consultation rules.  Alongside that, it published various amendments to the Employment Rights Bill, including some important amendments to the collective consultation proposals.  In this briefing, we bring you up to speed on the latest developments and what they mean for employers.

What’s the background?

Currently, collective redundancy consultation is triggered where there is a proposal to dismiss as redundant 20 or more employees assigned to one “establishment” within a 90-day period.  In this context, “establishment” has been held by the courts to mean the local unit where the employee works, not the business as a whole.  A failure by an employer to comply with these obligations may lead to a protective award of a sum not exceeding 90 days’ gross pay per employee. This award is intended to penalise the employer for breaching the statutory requirements and deter others from doing so. The amount of the award is determined by the Employment Tribunal according to what is just and equitable but, usually, the more serious the breach, the higher the protective award.

Initially, the Bill proposed to change the law to trigger collective consultation where there are 20 or more proposed redundancies within 90 days across an entire business rather than in just one establishment. This would mean that collective consultation would be triggered more frequently.  This raised the question of whether the consultation would need to be conducted with all the employee representatives at the same time even where the redundancies were in different locations and unrelated.  You can read more about the initial proposals in our briefing here.

Shortly after the Bill was published, the Government published a consultation looking at options for strengthening the remedies available for a breach of the collective consultation rules.  The options under consideration were:

• Raising the protective award to 180 days’ gross pay or removing the cap altogether. In either case, the Tribunal would retain discretion as to the amount of the protective award, based on what it determines to be just and equitable in light of the severity of the employer’s breach.

• Extending the remedy of interim relief to affected workers. Where interim relief is granted by a Tribunal it will order the employer to reinstate the claimant to their previous role or re-engage them in a different role pending the determination of the unfair dismissal claim at the final hearing.  Where the employer is not willing to do this, the Tribunal will make a “continuation order”, meaning the employer is ordered to pay the claimant as if their employment contract was still continuing, until the final hearing. Sums paid under a continuation order are irrecoverable regardless of the outcome of the final hearing. This makes interim relief a potentially very valuable remedy for claimants, and a burdensome one for employers.

You can read more about the consultation in our briefing here. 

What’s the latest?

The Government has put forward a number of key amendments to the Bill in this area.

1. Collective consultation will be triggered where there is a proposal to dismiss as redundant within a 90-day period either 20 or more employees assigned to one establishment (i.e. the current position), or a “threshold number of employees” across the wider workforce. This threshold number will be defined in regulations but may be either a specified number of redundancies or an overall percentage of the workforce. For example, if the threshold were to be set at 10% of the workforce, and the employer employed 500 employees across different sites, then a proposal of 50 or more redundancies across the whole business within a 90-day period would trigger collective consultation even where fewer than 20 redundancies were proposed at any one site.
2. Employers will be required to notify employee representatives in writing of the total number of proposed redundancies across the business and at which establishments.   However, employers will not be required to consult all such representatives together, nor undertake consultation with a view to reaching the same agreement with all of them.  These changes mean that all employee representatives will be entitled to information about the proposed redundancies across the entire business, but employers will have flexibility about how the consultation process is conducted.
3. The trigger for providing the Secretary of State with advance notice of proposed collective redundancies via the HR1 form will be aligned with the new collective consultation thresholds in the Bill. 
4. In terms of remedies, the maximum protective award will rise from 90 to 180 days’ gross pay per employee.  However, interim relief will not be extended to protective award claims.

In due course, the Government will also publish new guidance for employers on collective consultation which will reflect these changes.  It also plans to consult on additional ways to strengthen employee rights in collective redundancy situations.

What does this mean for employers?

These changes represent good and bad news for employers.  The retention of the words “at one establishment” is a concession to business and means collective consultation will not be triggered where a multi-site employer proposes small pockets of redundancies at different sites provided that the total numbers do not exceed the new threshold.  Clearly, the level at which the new threshold is set will be important – the lower it is, the more likely that collective consultation will be required.   

Further, the fact that consultation will not have to be conducted with all the employee representatives at the same time, nor with a view to reaching the same agreement, means that even where collective consultation is triggered by multiple pockets of smaller redundancies across different sites, there is flexibility in how that process operates.  The new guidance will be an important reference document for employers in this situation.

The doubling of the maximum protective award to 180 days’ pay significantly increases the risk to employers of failing to comply with the statutory requirements for collective consultation.  However, the Employment Tribunal will retain discretion to set the award at a figure which reflects the severity of the breach, which means minor breaches should not incur an award at the upper end of the scale.  “Buying out” protective award claims will now be more costly and therefore less attractive for employers, meaning they may choose to comply with the statutory requirements and conduct a collective consultation process.

Government Response to Consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire, 4 March 2025

Employment Rights Bill: Amendment Paper, 4 March 2025

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

LUNCHTIME WEBINAR – 29 April 2025

From the war in Gaza to trans issues, from the environment to Brexit, we are “going there”. In today’s polarised world, expressing beliefs at work (or indeed outside of work when colleagues find out about it) can lead to conflict and legal challenges.

Join us for an insightful lunchtime webinar with Managing Partner Gareth Brahams and Associate Emma Burroughs, as they delve into navigating the culture wars in the workplace. From religious and political views to personal values, we’ll explore the legal rights and responsibilities surrounding belief expression in today’s complex work environment.

Key topics include:

• The DEI backlash in the US: what does it mean for corporate DEI values and initiatives in the UK?
• When are employees’ beliefs legally protected, and which beliefs are out of scope?
• When can expressing a protected belief create problems for an employer?
• How should employers respond when belief expression causes upset, reputational damage, or conflicts with company values?
• What legal claims might arise if these issues are mishandled?

Don’t miss this opportunity to gain practical insights on managing belief expression at work.

Date: Tuesday, 29 April 2025

Time: 12.00pm-1.00pm

Click here to register

What is the background law?

The Equality Act 2010 protects individuals from discrimination because of religion and belief, which encompasses the manifestation of such beliefs.  Individuals also have fundamental rights to freedom of belief and freedom of expression of information and ideas under Articles 9 and 10 of the European Convention on Human Rights (the Convention).  Individuals also have a right to manifest their beliefs, for example, through worship, teaching, practice and words.  

Since the manifestation of a belief and the expression of information and ideas may impact others, these rights may be limited to the extent necessary in pursuit of other legitimate aims (a process known as “objective justification”).  Legitimate aims could include, for example, protecting an employer’s reputation or preventing discrimination against others.

The Convention is incorporated into UK law by way of the Human Rights Act 1998.  So far as it is possible to do so, UK legislation, such as the Equality Act 2010, must be read and given effect to in a way that is compatible with the Convention.

What happened in this case?

Ms Higgs is a Christian and she worked as a pastoral administrator and work experience manager at a secondary school (the School).  In 2018, the School received a complaint from a parent at the School about a post that Ms Higgs had made on her personal Facebook account.  She had reposted a Facebook post written by someone else about same sex relationships and gender fluidity, adding the comment: “Please read this!  They are brainwashing our children!”.  It later emerged that Ms Higgs had reposted other Facebook posts which had referred to gender fluidity as a “perverted vision” and which had said the “…LGBT crowd with the assistance of progressive school systems are destroying the minds of normal children by promoting mental illness”.

Ms Higgs was dismissed for gross misconduct on the basis that her posts:

• amounted to harassment of the complainant parent on the grounds of sexual orientation and/or gender reassignment;
• risked harming the School’s reputation; and
• breached the School’s Code of Conduct (namely that the posts may demean or humiliate LGBT pupils and cause concern about her suitability to work with children and that her online persona was not consistent with the professional image expected of someone working in a school).

Ms Higgs claimed she had suffered direct discrimination and harassment in relation to her beliefs, including that marriage is a divinely instituted life-long union between a man and woman, a lack of belief in same-sex marriage, a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex. 

The Employment Tribunal accepted that Ms Higgs’ beliefs were protected under the Equality Act 2010, however, it dismissed her claims.  It held that that the School had dismissed her because it had concluded that the language used in the Facebook posts could lead someone to reasonably believe that she was homophobic and transphobic.  Ms Higgs appealed to the EAT. 

What did the EAT decide?

The EAT decided that the Tribunal had failed to address the question of whether the School’s actions were because of, or related to, a manifestation of her protected beliefs.  The EAT held that there was a sufficiently close or direct nexus between Ms Higgs’ protected beliefs and her Facebook posts, such that they amounted to a manifestation of her beliefs.  

Accordingly, the next question was whether the dismissal was in response to a legitimate manifestation of the protected beliefs (which would be unlawful belief discrimination), or to the objectionable manifestation of the beliefs?  If the latter, the dismissal could potentially be lawful if the School was able to show that it was a proportionate step designed to achieve a legitimate aim (i.e. it could “objectively justify” the dismissal). 

Since there was more than one possible answer, the EAT remitted the claims to the Employment Tribunal.  However, the EAT went on to offer detailed guidance on the principles to be taken in account when assessing the proportionality of any interference with freedom of religion and belief and freedom of expression. 

Ms Higgs believed that the EAT should have gone further and held that her claims succeeded, rather than remitting them to the Tribunal.  Therefore, she appealed to the Court of Appeal.

What did the Court of Appeal decide?

The Court concluded that the Tribunal was bound to find that Ms Higgs’ dismissal was not objectively justified, meaning that it amounted to unlawful belief discrimination.  Even assuming that the School was entitled to take objection to the Facebook posts, dismissal was “unquestionably a disproportionate response” for the following reasons:

1. Even if the language used in the posts was objectionable, it was not grossly offensive and it was not primarily intended to incite hatred or disgust for LGBT people.  Rather, the content contained derogatory sneers and rhetorical exaggeration.
2. The offensive language used was not written by Ms Higgs (save for the repetition of the word “brainwashing”).  Rather, she was reposting the messages of others.  She had made it clear to the school that she did not condone the language, and this was relevant to the question of the degree of culpability.
3. There was no evidence that the reputation of the School had, in fact, been damaged.  Indeed, the dismissal letter had accepted that the concern was about potential damage in the future.  The dismissal letter had also accepted that there was no possibility that readers would believe that the posts represented the views of the School.  The only reputational damage was that people might fear that Ms Higgs would express homophobic or transphobic attitudes at work.  The Court accepted that if that belief became widespread then it could harm the School’s reputation, however, the risk of such widespread circulation was “speculative at best”.  The posts were made on a personal Facebook account in Miss Higgs maiden name and with no reference to the School.  After the posts were made, only one person (the parent who had complained) was known to have recognised who she was.  
4. Even if people who saw the posts feared that she would let her views influence her work, neither the School, nor the Tribunal, believed that she would do so.  Ms Higgs had made it clear that she was specifically concerned about the content of sex education in primary schools and that she would not bring these views into the School and nor would she treat LGBT pupils differently.  There had been no complaints about any aspect of Ms Higgs’ work during her employment.  It would have been open to the School to have issued a statement making it clear that it was confident that there was no risk that Ms Higgs’ views would affect her attitude towards LGBT pupils or parents.

While the Court accepted that Ms Higgs had acted unwisely in reposting the material, this did not justify her dismissal, especially since she was a long-serving employee with an unblemished work record.

The Court also addressed the issue that the School was concerned that Ms Higgs lacked insight into the consequences of her actions and had refused to take the posts down.   The Court acknowledged that in some cases a lack of insight might justify dismissal over a less severe sanction but that is not a universal rule.   The Court said that if the case is not one that would otherwise justify dismissal then it was hard to see that it should be “marked up in seriousness” because of a failure to acknowledge a fault which the employee would genuinely find difficult to do (because it was a manifestation of an important belief).

Separately, the Court said that although the School had been entitled to investigate the complaint made by the parent, it was debatable whether this needed to be disciplinary in nature and whether it had been necessary to suspend Ms Higgs. 

What does this mean for employers?

This decision makes it clear that it will not be open to employers to argue that the dismissal of an employee for the objectionable way in which they have manifested a protected belief is entirely separable from their rights to hold and manifest a belief and, therefore, not discriminatory.  The objectionable manifestation cannot be viewed in isolation.  Instead, the route to safety for the employer is to show that the dismissal is objectively justified – this requires the employer to show that they have acted proportionately in advancing one or more legitimate objectives.  This is notable since it introduces the concept of objective justification into direct belief discrimination claims (whereas on the face of the Equality Act 2010, this is reserved for indirect discrimination and discrimination arising from disability claims only).  Although helpful to employers to some extent, discharging the burden of objective justification will not be easy, particularly in light of the fundamental importance of an individual’s right to hold and manifest a belief and express information ideas. 

What are the key practical lessons for employers considering taking action against an employee in connection with the expression of their beliefs or views?

Before doing anything, consider which legal rights are engaged

• Seek legal advice on whether what has been said or done relates to a protected belief held by the employee.  If it does, this is likely to engage discrimination protection under the Equality Act 2010 and the right to freedom of thought, conscience and religion under Article 9 of the Convention.  Of course, it will not always be possible to make a complete assessment, since you may well not know what beliefs are held by the employee nor the strength of them.

• Even where you are confident that there is no connection with an underlying protected belief, remember that the right to freedom of expression under Article 10 of the Convention will usually be engaged (save where what is said concerns the expression of certain extreme beliefs).  If Article 10 is engaged, then this will be taken into consideration in other types of claim, for example, unfair dismissal claims.

• Ordinarily, employees need two years’ service to acquire the right not to be unfairly dismissed.   However, it should be noted that where the sole or principal reason for the dismissal is, or relates to, an employee’s political opinions or affiliations, the two-year service requirement is dispensed with, meaning it becomes a Day 1 employment right.

Focus on precisely why the expression of the belief or view amounts to misconduct

• Caution is needed – the key point emerging from this decision is that employers should avoid overreaching.  These cases are complex and the balancing exercise that you need to undertake is nuanced.  Helpfully, the Court of Appeal endorsed the guidance set down by the EAT in this case and this should be used as a guide in future cases.  For example, ask yourself the following questions:

  • What has the employee said or done?  If it is something done on social media, be mindful that there is a hierarchy of wrongdoing. “Liking” does not hold the same weight as reposting something or creating a post (as noted by the European Court of Human Rights in the case of Melike v Turkey).  And as the Court of Appeal noted in this case, reposting is not the same as creating a post.
  • What is the statement or post in question considered to be objectionable?  You need to show that the expression was objectionable.  Even if it seems offensive on its face, remember that there is no general right not to be offended.  The objectionable nature must go further and jeopardise a legitimate aim of the business.   This may include actions which have led to the harassment of others or damaged the reputation of the business (or could do so).  However, as this case underlines, you must take great care not to overstate such risks.  What is the extent and nature of the intrusion on the rights of others? Has actual damage been done to the business, or is it genuinely likely?
  • Did the employee make it clear that the views expressed were personal, or could they be seen as representing the views of the business?  Where views are expressed on private social media accounts and there is no link to the employer, this risk is likely to be lower.

Do not jump straight to suspension and disciplinary action

• As the Court said in this case, while it was understandable that the employer wished to investigate the complaint, it was questionable whether suspension was needed or that the process had to be disciplinary in nature from the start.  Consult the Acas Guidance on suspension before you take a decision to suspend and keep any suspension as short as possible and under review.   

• If disciplinary action is needed, the disciplinary process should be fair and conducted in line with the Acas Code of Practice on disciplinary and grievance procedures.  Careful investigation looking at evidence on both sides will be needed and you should ensure that the people who run the process are non-partisan. 

• Once disciplinary action is started, be prepared for a grievance to be lodged in response.  If the employee has manifested a protected belief, that grievance will probably allege that the disciplinary action is discriminatory – and that complaint will be a protected act.  This means you will need to be careful to avoid any subsequent detrimental treatment as this could give rise to a victimisation claim.

• If the conclusion is that the employee should be sanctioned for their actions, remember that the interference in the expression of a protected belief should always be done in the least intrusive way possible to achieve the objective in question.  Is dismissal really necessary?  For example, would a request to take down the post and not repeat with similar posts and the provision of training be enough? In this case, the Court noted that one alternative course of action open to the employer would have been to issue a statement reassuring the community that it had confidence that Ms Higgs’ views would not negatively affect her work.

• Be careful not to allow a lack of remorse or remedial action by the employee to swing your decision on sanction.  As the Court noted here, if the employee’s actions would not justify dismissal in the first place, it is unlikely that a lack of insight will tip the balance towards dismissal.  This is especially true in belief cases where the employee’s actions will relate to a something they believe in and is of importance to them.

• Bear in mind that even if you do not dismiss, issuing any disciplinary sanction for the manifestation of a protected belief may be viewed as an act of discrimination by the employee and could also be used as a basis for constructive dismissal.

Higgs v Farmor’s School

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

The Neonatal Care (Leave and Pay) Bill received Royal Assent on 24 May 2023 becoming the Neonatal Care (Leave and Pay) Act 2023.  The Act provides the pathway to new rights and protections at work for employees who are parents of babies requiring neonatal care.  In this briefing, we outline where things currently stand and what steps employers should take next.

What is the background?

Currently, parents of a baby requiring neonatal care must use existing statutory leave entitlements to allow them to take time off work while their baby remains in hospital.  For mothers, this means using up some of their 52-week maternity leave entitlement (which may start no later than the day of the birth itself).   For fathers, this will usually mean using up the two-week paternity leave entitlement, perhaps in combination with other leave rights such as unpaid parental leave, unpaid dependant emergency leave or annual leave.  In some cases, the mother may exchange up to 50 weeks of her maternity leave for shared parental leave to share with the father.  Doing this would enable the father to take a longer period of time off work, but would, in turn, reduce the amount of time off work that the mother is able to take.

Over the last ten years there have been calls to create special leave and pay rights for parents of premature babies in receipt of neonatal care.  In 2015, two premature baby charities, Bliss and The Smallest Things, submitted a joint petition to Government on the issue.  The aim was to create an entitlement to ringfenced rights which did not exhaust other forms of leave. 

The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent on 24 May 2023.  The Act provided for the introduction of rights and protections for employees who are parents of babies up to 28 days old who require neonatal care for at least one week without interruption.  However, the precise scope and mechanics of the new rights was deferred to regulations.  On 20 January 2025, the Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 and the Statutory Neonatal Care Pay (General) Regulations 2025 were published, providing these further details.  The new framework is due to come into force on 6 April 2025 and the Government anticipates that it will benefit around 60,000 new parents.

Who is eligible to take neonatal care leave?

Employees will have a Day 1 right to take neonatal care leave for babies born on or after 6 April 2025.  The employee must also:

• be the parent of the child;
• be the intended parent of the child (meaning someone who will become a parent through a surrogacy arrangement);
• be the child’s adopter or prospective adopter; or
• be the partner of the child’s mother, adopter or prospective adopter.

In all cases, the employee must have, or expect to have, responsibility for the upbringing of the child (apart from the baby’s mother or adopter).

The right is not available to other workers, contractors or agency workers. 

When is the right to take neonatal care leave triggered?

The leave may be taken in respect of a baby who begins “neonatal care” within 28 days of their birth, provided that the care continues for at least seven consecutive days.  Confusingly, this period is counted from the day after the first day that the child enters neonatal care, meaning that, in fact, the child must spend eight days in neonatal care before the employee becomes entitled to leave.  Where the employee has adopted the child, the entitlement to leave will only arise where the neonatal care is needed after the adoption placement has begun.

In this context, “neonatal care” means:

• medical care received in a hospital;
• medical care received following discharge after inpatient treatment in a hospital (where that care is under the directions of a consultant and includes ongoing monitoring and visits arranged by the hospital); and
• palliative or end of life care.

How much neonatal care leave is available?

Employees are entitled to one week’s leave for each complete and uninterrupted week that the child spends in neonatal care, up to a maximum of 12 weeks’ leave (and the weeks spent in neonatal care are known as “qualifying periods”).

In multiple birth cases, leave will accrue in respect of each child requiring neonatal care leave, but where the babies are receiving neonatal care at the same time then the entitlement for that period only accrues once.  For example, if twin babies received neonatal care for four weeks at the same time, the employee would be entitled to four weeks’ leave, not eight weeks.  However, if one twin received neonatal care in weeks one to four, and the other twin received neonatal care in weeks five to eight, the employee would be entitled to eight weeks’ leave.

When may neonatal care leave be taken?

Leave may only be taken after the completion of the first “qualifying period” (which, as above, requires the child to have actually spent eight days in neonatal care).  In other words, the earliest that the employee may start the leave is on the ninth day after the neonatal care began. 

Alternatively, the leave can be taken at a later date, although it must be taken within 68 weeks of the child’s birth. 

How may neonatal care leave be taken?

The leave must be taken in blocks of at least a week.

Where the leave is to be taken during the time that the child is actually receiving neonatal care or within seven days of it ending (known as a “tier 1 period”), there is greater flexibility about how the leave may be taken.  In these circumstances, the leave may be taken in either continuous or discontinuous blocks of at least a week.  In practice, leave will usually only be taken in a tier 1 period by the child’s father or mother’s partner, since the mother is highly likely to already be on maternity leave. 

Where the leave is to be taken more than seven days after the neonatal care has ended (known as a “tier 2 period”), the leave may only be taken in a single continuous block. This is most likely to arise when the employee is already taking another form of family leave when the baby receives neonatal care, for example, a mother on maternity leave.  In such circumstances, the other form of family leave will continue, and the neonatal leave is added on at the end so that it does not interrupt the other leave.

How should an employee give notice of an intention to take neonatal care leave?

The employee must give the employer notice of a wish to take leave and provide specified information. 

Where the employee wishes to take leave during a tier 1 period, notice must be given for each week of leave before the employee is due to start work on the first day of absence in that week (or, if this is not possible, as soon as reasonably practicable).  The notice does not need to be in writing, although employers may request that written notice is provided (and, indeed, it will need to be in writing to claim statutory neonatal care pay). 

Where the employee wishes to take leave during a tier 2 period, the notice must be given in writing.  Where one week’s leave is to be taken, at least 15 days’ notice must be given.  Where two or more weeks is to be taken, at least 28 days’ notice must be given.   A notice of leave in a tier 2 period may be withdrawn and replaced with a notice setting out new dates.

The leave will usually start on the date specified in the notice.  The parties may agree to waive the notice requirements and, if they do so, the leave will begin on a mutually agreed date.

Who is entitled to be paid statutory neonatal care pay?

Employees will be entitled to be paid statutory neonatal care pay where they:

• have accrued at least 26 weeks’ continuous service with the employer by 15^th week before the expected week of childbirth (or the week in which the adopter is notified of a match or, in other cases, the week before the week that the neonatal care starts); and
• receive weekly earnings at or above the “lower earnings limit” (which will be set at £125 per week from April 2025).

The statutory pay will be available for each complete and uninterrupted week that a child is in neonatal care, up to a maximum of 12 weeks.  The rate of pay will be the same as other statutory family leave payments, namely £187.18 per week from April 2025.

The employee must give written notice to the employer of the week or weeks for which a claim is made and provide certain evidence of their entitlement to statutory pay.

Will employees taking neonatal care leave have any other rights and protections?

Employees will also have:

• a right to benefit from the existing terms and conditions of employment that would have applied but for the leave (apart from terms and conditions about remuneration);
• a right to return to work, in most cases to the job they performed before the leave (however, in certain circumstances the right is modified to the right to return to the same job or one that is suitable and appropriate for them to do);
• priority rights in a redundancy situation for any suitable alternative vacancy where the redundancy situation arises either during the neonatal care leave, or within 18 months of the child’s birth or adoption (in circumstances where the employee took at least six consecutive weeks of neonatal care leave);
• protection from detriment as a result of having taken or sought to take or make use of the benefits of neonatal care leave, or because the employer believed that there were likely to do so; and
• protection from dismissal or selection for redundancy for having taken or sought to take or make use of the benefits of neonatal care leave, or because the employer believed that there were likely to do so – any such dismissal will be “automatically” unfair.

Further, the Government intends to introduce enhanced protection from dismissal following the return from certain types of family leave, including neonatal care leave.  This proposal is set out in the Employment Rights Bill, which is currently on its passage through Parliament.  You can read more about this proposal here.

What steps should employers consider taking now?

The Government will publish guidance for employers before 6 April 2025.  Acas also plans to publish guidance once the new rights are in force.

Employers should consider the following policy issues now:

• Who will have “ownership” of ensuring compliance with the new rules within your business (including things like preparing a staff policy and updating related policies, training line managers and managing any record-keeping obligations)?
• Will you enhance the amount of neonatal care leave available?  If so, to what amount?
• Will you enhance the rate of neonatal care pay?  If so, to what level and for how long?
• Will you extend the rights to non-employees on a voluntary basis (albeit that any individuals benefitting from this would not be entitled to statutory pay and would not be able to bring relevant claims before an Employment Tribunal as they would fall outside the statutory scheme)?
• Will you relax the notice requirements?  If so, what would be the minimum notice required?  What form must it take (e.g. would verbal notice be sufficient)?

Neonatal Care (Leave and Pay) Act 2023

Neonatal Care Leave and Miscellaneous Amendments Regulations 2025

Statutory Neonatal Care Pay (General) Regulations 2025

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In a recent case the Employment Tribunal held that a dismissal was unfair and discriminatory despite significant periods of sickness absence. While the Tribunal found that the reason for dismissal was the historic sickness absences, it held that the employer did not act reasonably in treating that as a sufficient reason for dismissal, partly because it had failed to recognise that the employee was disabled.  Further, dismissal on the basis of historic absences, rather than the propensity for future absences, could not objectively justify the discriminatory dismissal.

What happened in this case?

Ms Kitching was employed as a cleaner at the University Hospitals of Morecambe Bay NHS Foundation Trust (the Trust), cleaning the Lancaster Suite, from 2019 until her dismissal in June 2023. Over her employment, she accrued 406 days of absence across 29 occasions in 4 years, with approximately 85% of her absences linked to her mental health conditions, which included bipolar disorder and anxiety.

Ms. Kitching asked to work shorter hours or fewer shifts while remaining on the Lancaster Suite, where she was familiar with the staff and processes. She said that this adjustment would help her manage her anxiety and improve her attendance. However, her request was denied, with the Trust stating that reducing her hours would require her to work in different areas of the hospital, which she would have found stressful and disruptive.

The Trust’s “Attendance Management at Work Policy” outlined absence triggers, where exceeding certain thresholds could lead to formal review and potential dismissal. However, the policy also referenced the “Support and Retention of Disabled Employees Policy”, which allowed for flexibility in managing absences for employees with disabilities. However, the Trust applied the stricter absence thresholds to Ms Kitching.

The Trust dismissed Ms. Kitching based on her history of absences.

What was decided?

The Tribunal found that Ms Kitching’s dismissal was unfair and was based on a fundamentally flawed and discriminatory process.  There was no chance that Ms. Kitching would have been fairly dismissed if the Trust had followed a fair procedure.  Despite multiple fit notes and occupational health reports confirming her disability, the Trust failed to recognise or accommodate her conditions adequately and there was a “complete lack of an enquiring mind into whether the claimant was disabled or not”.

The Trust had also failed to make reasonable adjustments, particularly by not adjusting her shift patterns (which would have improved her attendance) or tolerating a higher level of absence in accordance with its own policies. The Tribunal had particular regard for the size and resources of the Trust when considering this.

The Tribunal found that the Trust had dismissed Ms Kitching due to absences directly linked to her mental health condition and her claim for discrimination arising from a disability was successful.  The Trust failed to justify the dismissal as a proportionate means of achieving a legitimate aim, particularly given that its own policies permitted greater flexibility in managing disability-related absence, which had been ignored.

In particular, the Tribunal criticised the Trust’s use of a backward-looking process in assessing Ms Kitching’s absences. Instead of evaluating her current and future capability to work with reasonable adjustments in place, the Trust focused primarily on her past absences without considering their context or the potential improvements that could have been made. This retrospective approach failed to account for the positive impact any reasonable adjustments would have had.

What does this mean for employers?

• Recognising disabilities: Employers must consider whether an employee is disabled under the Equality Act 2010 where an employee has heightened levels of absence, and should carefully consider the medical evidence provided, including Occupational Health reports and fit notes.

• Accommodating disabilities: Employers should always consider what reasonable adjustments can be made to help get an employee back to work. Employers should commission Occupational Health reports for employees who have period of absence, or extended absence, which can provide advice in this regard.

• Following internal policies: If an employer has policies regarding the treatment of disabled employees, these must be adhered to.

Kitching v University Hospitals of Morecambe Bay NHS Foundation Trust

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Emma Burroughs (emmaburroughs@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

An employee’s appeal against the finding of an Employment Tribunal that his dismissal for dishonesty in failing to disclose a prior gross misconduct dismissal was fair was rejected by the Employment Appeal Tribunal (EAT). The EAT upheld the original Employment Tribunal decision, affirming that the employer had acted reasonably in dismissing the employee after a thorough investigation into his omissions on his application form.

What happened in this case?

Mr Easton, a career civil servant, was dismissed from the Home Office in June 2016 for gross misconduct. In 2019, after settling the Employment Tribunal claim related to his dismissal, he applied for a role with Border Force, a part of the Home Office. On his application form, he omitted details of his previous dismissal and a three-month gap in his employment history.

Although the form did not explicitly require applicants to provide the reasons for leaving previous employment nor specify precise dates of employment, Mr Easton was aware that any prior dismissals and employment gaps were relevant to the Border Force’s hiring decision.

After Mr Easton was hired in January 2020, a former colleague alerted his new manager about his past dismissal. An investigation followed, and Border Force concluded that Mr Easton had been dishonest in withholding this information, leading to his dismissal in November 2020.

What was decided?

The Tribunal found that Mr Easton deliberately presented his employment history in a way that concealed his previous dismissal and employment gap, despite knowing that such information was relevant. The Tribunal determined that the omission was dishonest, and that Border Force had acted reasonably in treating this as gross misconduct.

Mr Easton appealed to the EAT, arguing that Border Force was already aware of his prior dismissal since it was part of the Home Office. However, the EAT rejected this argument, emphasising that the Home Office is a large organisation and could not be expected to have collective knowledge of all HR records. The Tribunal also found that Mr Easton’s failure to disclose this information deprived Border Force of the opportunity to assess his application fully at the interview stage.

The EAT ultimately agreed with the Tribunal’s conclusion that Border Force had reasonable grounds to believe Mr Easton had acted dishonestly. The appeal was dismissed.

What does this mean for employers?

Employers should ensure that job application forms clearly outline the information candidates are expected to provide, particularly in large recruitment exercises where previous employment records may not be easily accessible.

Employers may also wish to review recruitment forms to ensure clarity regarding the disclosure of prior dismissals and employment gaps to prevent disputes of this nature.  Such forms should also ask the applicant to confirm that the information provided on the form is complete and accurate and that they acknowledge that they may be dismissed from employment if it is discovered that they have provided incomplete, inaccurate or false information.

Easton v Secretary of State for the Home Department (Border Force)

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues related to the content of this article, please contact Noelle van Wyk (NoelleVanWyk@bdbf.co.uk),  Amanda Steadman (AmandaSteadman@bdbf.co.uk), or your usual BDBF contact.

Employment law never stops and 2025 looks to be no exception.  While all eyes are on the Government’s flagship Employment Rights Bill, employers should take note of a number of other developments happening this year.   In this briefing, we round up the key pieces of legislation, consultations, calls for evidence, reviews and guidance to look out for, and we also highlight some of the most interesting case law decisions expected this year.

New legislation

• The Employment Rights Bill (the ERB): the ERB is the key piece of employment law expected to come into force this year and will make wide-ranging changes to employment law.  Some of the key changes in the ERB include making unfair dismissal a Day 1 employment right, diluting the threshold at which consultation on collective redundancies is met, clamping down on the use of fire and rehire practices, introducing employer’s liability for third-party harassment of workers, requiring large employers to publish equality action plans, making it harder for employers to reject flexible working requests, expanding family leave rights and increasing the time limit to bring an Employment Tribunal claim from three to six months.  You can read our full analysis of the ERB here and catch up with our recent webinar on what the ERB means for employers here.  The Bill is currently on its passage through Parliament and is expected to pass into law this year, however, secondary legislation will still be required to bring many of the changes into force.

• Equality (Race and Disability) Bill: this Bill will introduce ethnicity and disability pay gap reporting for employers with 250 or more staff, which will be along similar lines to the existing gender pay gap reporting regime.  The Bill will also introduce a right for workers to bring equal pay claims on the basis of race or disability, rather than just sex as is currently the case.  It will also strengthen the law on equal pay more generally by permitting comparisons with outsourced workers and creating a new regulatory and enforcement unit for equal pay law.  A draft Bill is expected to be published in this Parliamentary session for pre-legislative scrutiny and a public consultation on the proposals will begin in due course. 

• Neonatal Care (Leave and Pay) Act 2023: this Act passed into law in 2023 (under the Conservative Government), with the intention that it would come into force in April 2025.  The Labour Government has since confirmed that it will come into force on 6 April 2025.  The Act will provide employees with a Day 1 right to take leave where they are the parent of a baby, aged up to 28 days’ old, who needs to spend at least a week in neonatal care.  Employees will be able to take up to 12 weeks’ leave and this will be on top of any other leave they may be entitled to, such as maternity or paternity leave or annual leave.  Employees who have at least 26 weeks’ continuous service (and meet a minimum earnings threshold) will also be entitled to receive statutory neonatal pay.  Employees will have a right to return to work and will be protected from detriment and dismissal as a result of taking, or seeking to take, the leave.  The precise scope and mechanics of the new rights will be set out in seven new sets of regulations, which are yet to be published.

• Paternity Leave (Bereavement) Act 2024: this Act passed into law in 2024 (under the Conservative Government), with the intention that it would come into force in April 2025  The Labour Government has confirmed that it intends to pass the regulations needed to bring the Act into force. The Act will remove the usual 26-week minimum service requirement for fathers and partners to take paternity leave where the mother of a child dies shortly after the child’s birth (or the adoptive parent or intended parent in a surrogacy arrangement dies).  This would make paternity leave a Day 1 employment right in these circumstances (note that under the ERB the plan is to make paternity leave a Day 1 right for all).  Separately, regulations may extend the amount of paternity leave available in such circumstances, potentially up to 52 weeks.  It is not yet clear how much of this leave would be paid – will it be just the two weeks’ statutory paternity pay as now, or will it mirror statutory maternity and adoption pay and be available for up to 39 weeks?  Further, regulations may provide that if the child also dies (or is returned after adoption), the father or partner will be entitled to stay on paternity leave for a period of time.  Regulations may also provide enhanced redundancy protection to bereaved employees when they return from paternity leave and allow them to work on “keeping-in-touch” days during their paternity leave.  The regulations are yet to be published and it is not known whether the rights will come into force in April 2025, or later in the year.

• Private Members’ Bills 2024-25: several employment-related Private Members’ Bills sponsored by different MPs are currently on their passage through Parliament.  Although not impossible, Private Members’ Bills are less likely to pass into law.  The Bills of most interest are:

  • the Bullying and Respect at Work Bill: this Bill would introduce a legal definition of “bullying” and allow employees to bring bullying claims in the Employment Tribunal. It would also introduce a “Respect at Work Code” which would set minimum standards for positive and respectful work environments and give powers to the Equalities and Human Rights Commission to investigate workplaces and take enforcement action.  The Bill has its next reading on 20 June 2025.
  • the Domestic Abuse (Safe Leave) Bill: this Bill would introduce a right for employees who are victims of domestic abuse to take up to 10 days’ paid “safe leave” from work.  The Bill has its next reading on 20 June 2025.
  • the Health and Safety at Work Act 1974 (Amendment) Bill: this Bill would amend the Health and Safety at Work Act 1974 to require employers to take proactive steps to prevent violence and harassment in the workplace, including providing relevant training to staff.  The Bill would also require the Health and Safety Executive to publish a framework on violence and harassment in the workplace and publish guidance for employers.  The Bill has its next reading on 7 March 2025.
  • the Office of the Whistleblower Bill: this Bill would establish an independent “Office of the Whistleblower” to protect whistleblowers.  It would set, monitor and enforce standards for the management of whistleblowing cases, provide disclosure and advice services, direct whistleblowing investigations and order redress of detriment suffered by whistleblowers.  The Bill has its next reading on 25 April 2025.
  • the Public Sector Exit Payments (Limitation) Bill: this Bill would limit exit payments made by some public sector organisations to employees.  The Bill has its next reading on 13 June 2025.

Government consultations, calls for evidence, reviews and guidance

• Right to disconnect: the Government has committed to introduce a new statutory Code of Practice which will provide statutory guidance on the ability for workers to disconnect outside normal working hours.  However, it does not appear that a statutory right to disconnect will be introduced.  We can expect a public consultation on the draft Code before it comes into force. 

• Regulating employee surveillance: a consultation on workplace surveillance technologies has been promised.

• Introducing a single worker status: a consultation on introducing a single worker status has been promised.  This consultation will also look at ways to improve protections for the self-employed.

• Improving TUPE rights and protections: a call for evidence will be launched to examine a “wide variety of issues”.

• Banning unpaid internships: a call for evidence is expected imminently.

• Parental leave framework: a review of all parental leave rights will be undertaken.  In particular, we can expect to see the shared parental leave regime come under scrutiny given the low uptake rates.  Ahead of that review, the cross party Women and Equalities Select Committee has recently opened a Call for Evidence seeking views on shared parental leave system.  This closes on 7 February 2025.

• Carer’s leave: a review of the carer’s leave regime will be undertaken.  In particular, consideration will be given to introducing a right to paid leave.

• Health and safety law and guidance: a review of the framework will be conducted “in due course”.  Among other things, the review will consider neurodiversity, extreme temperatures and Long Covid.

• Menopause guidance: one of the ERB’s provisions is to require employers with 250 or more employees to publish equality actions plans covering, amongst other things, the steps being taken to support those going through the menopause.  In addition, the Government has said it will publish non-binding guidance for all employers on menopause in the workplace.  It is not yet known when this will be published.  We expect that the new guidance will be along similar lines to that already published by Acas and the Equality and Human Rights Commission, both of which summarise the legal position briefly, explain how managers should approach conversations about menopause and address possible adjustments that employers can make to support affected staff.

Key cases

Belief and freedom of expression

• Higgs v Farmor’s School: an employee of a school was dismissed after she made Facebook posts objecting to the Government’s consultation on relationship and sex education in primary schools.  She claimed she had been discriminated against because of her religion or belief. An Employment Tribunal held that the dismissal not discriminatory.  She was dismissed because of the nature of her Facebook posts which may have created the impression that she was homophobic and transphobic.  On appeal, the EAT held that the Facebook posts were, in fact, a manifestation of her beliefs, meaning that the Tribunal should have probed the reason for the dismissal further.  Was it because of, or related to, her protected beliefs (which would be unlawful)? Or was it because of the manifestation of her beliefs was objectionable (which could potentially be lawful).  If the latter, the Tribunal would then need to assess whether dismissal was a proportionate response to any such objectionable behaviour.  The EAT went on to set down some guidelines for conducting such an assessment and remitted the case to the Tribunal.  However, this decision was appealed, and the Court of Appeal’s decision is awaited.  This decision is important as it will set a precedent in future cases concerning the manifestation of protected beliefs at work and when sanctions are lawful.

• Ngole v Touchstone Leeds: an employer who provided services to the LGBTQ community withdrew a job offer from a candidate after it was discovered that he had posted negative views about homosexuality on Facebook.  After withdrawing the offer, the employer invited him for a second interview to explain his position and offer reassurances, however, they did not go on to reinstate the job offer. The Employment Tribunal held that the withdrawal of the job offer amounted to direct discrimination as it was not a proportionate response. Instead, the employer should have invited him to discuss the matter first and, if not reassured, it could then have withdrawn the job offer lawfully.  The employer appealed to the EAT and its decision is awaited.  This is another important decision which will consider the proportionality of an employer’s response to what it considers to be an objectionable manifestation of a protected belief.

• Miller v University of Bristol: a Professor at a University who held anti-Zionist beliefs was summarily dismissed after complaints were made that he had made anti-Semitic comments in various contexts, including to his students.  An Employment Tribunal held the anti-Zionist belief in question qualified as a protected philosophical belief under the Equality Act 2010.  The University’s own investigation had concluded that his statements were not anti-Semitic, had not incited violence, and had not posed any threat to any person’s health or safety. Accordingly, the Tribunal went on to decide that the dismissal was a disproportionate response to the manifestation of his beliefs and a sanction short of dismissal (such as a warning) would have been the appropriate response.  The dismissal was held to be directly discriminatory and unfair.  The University has appealed to the EAT and the hearing is due to take place later this year.

Whistleblowing protection

• Sullivan v Isle of Wight Council: an external job applicant argued that she was entitled to bring a whistleblowing detriment claim against a prospective employer.  TheEAT held that she did not qualify as a “worker” for whistleblowing law purposes, nor should the law be interpreted widely so as to give job applicants protection (as may be done, exceptionally, for other groups such as judicial office holders and, potentially, charity trustees).  The job applicant appealed, and the Court of Appeal decision is awaited.  This is an important decision in determining who has whistleblowing protection.

• Wicked Vision Ltd v Rice: an employee brought a whistleblowing claim against the employer, arguing that it was vicariously liable for a detriment (namely, his dismissal) which had been meted out by a co-worker (namely, the owner of the business).  The EAT held he could not do so.  He could bring a detriment of dismissal claim against the co-worker and he could bring an unfair dismissal claim against the employer.  However, if the employer was vicariously liable for the detriment of dismissal, this would effectively duplicate the unfair dismissal claim and was not permitted under the legislation.  In doing so, the EAT took a narrow interpretation of the leading case on this issue – Timis and Sage v Osipov – holding that it was only authority for the point that a detriment of dismissal claim could be brought against a co-worker and not on the question of claims based on vicarious liability.  Interestingly, a few months later, in Treadwell v Barton Turns Developments Ltd, the EAT reached the opposite view.  Appeals have been filed in both cases and the Court of Appeal is due to hear the combined appeal later this year.  This will be an important decision is drawing the boundaries of an employer’s liability where a whistleblower is dismissed. 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In a recent Court of Appeal judgment, an Employment Tribunal was found to have erred in deciding that an employee had all the facts she needed to bring her discrimination claims. This case clarifies that being unaware of a discriminatory motive can justify a late claim.

What happened in this case?

The Claimant lost her job at Barclays soon after returning from maternity leave. She brought sex discrimination proceedings against Barclays.  In 2018, she applied for a senior role at HSBC.  Early feedback at HSBC was very positive, with managers indicating that they were keen to hire her.

However, by July 2018, HSBC told the Claimant that it would not be offering her the job. At that time, she knew someone at Barclays had given HSBC a bad reference about her.  Suspecting that Barclays’ negative input was linked to her previous discrimination claims, she pursued further claims against Barclays.  She did not bring a claim against HSBC.

Two years later, in 2020, the Claimant received new documents from HSBC following her repeated data subject access requests.  These revealed that a senior HSBC manager had, in fact, been told about her earlier sex discrimination proceedings against Barclays and had passed on disparaging comments before the decision not to hire her was finalised. She also learned about potential race-related remarks, including references to “Lebanese connections” which were said to make her hiring more difficult.

Relying on the newly disclosed information, the Claimant brought discrimination and victimisation claims against HSBC in November 2020 and May 2021, over two years out of time.  An Employment Tribunal decided that the claims against HSBC could not proceed because of limitation. It concluded that the Claimant’s application process ended in July 2018 and that she should have known enough by then to bring her discrimination claims.  The Tribunal also treated later events in 2020 as irrelevant, finding that they did not add to the basic facts.

The Claimant appealed successfully to the Employment Appeal Tribunal (the EAT).  The EAT held that the Tribunal had failed to consider properly whether the Claimant had the relevant knowledge in 2018 to bring a claim against HSBC, as opposed to just suspecting that her ex-employer Barclays was behind it.  HSBC appealed to the Court of Appeal.

What was decided?

The Court of Appeal upheld the EAT’s ruling and dismissed HSBC’s appeal.

The Court of Appeal emphasised that under the standard set out in Meek v Birmingham District Council, Tribunals must explain their decisions adequately.  It found that the Tribunal had not made the necessary findings about the precise moment that the Claimant had gained enough information to know that HSBC (rather than Barclays) might have discriminated or victimised her.

The Court of Appeal agreed that the EAT was right to criticise the original decision for failing to explain how they had concluded that the Claimant knew enough in July 2018 to pursue a discrimination claim, despite new facts arising in 2020. It emphasised that a Tribunal deciding whether to extend time must carefully consider what a claimant knew, and when, before concluding the claimant had enough information to bring a claim.

The Court of Appeal criticised the Tribunal for failing to address the Claimant’s race discrimination claim, which arose from comments about “Lebanese connections” in 2020 and, therefore, needed its own separate time-limit analysis.

In line with the principle in Barnes v Metropolitan Police Commissioner, the Court of Appeal noted that Tribunals should consider both what a claimant suspected and whether any delay in bringing proceedings was reasonable.

As a result, the Court of Appeal remitted the case to a new Tribunal to decide whether it was just and equitable to allow the claims to proceed outside the usual three-month limit.

What does this mean for employers?

This decision highlights the following key points for employers:

• Understanding the true reason for a decision: even if a candidate knows that a decision had been made to turn down their application, the ordinary time limit to bring a claim may be extended if they later uncover evidence suggesting a discriminatory or victimising motive.

• Risk of victimisation claims: a candidate who has previously raised discrimination complaints remains protected against victimisation – whether from a previous employer or a prospective employer treating them unfavourably as a result of their protected acts. 

• Take a cautious approach to references and subsequent internal discussions: managers and HR teams must handle references carefully, ensuring no unlawful bias or “protected act” knowledge improperly influences hiring decisions. Feedback should be factual rather than speculative and there ought to robust protocols in place to avoid unconscious bias. 

• Responding promptly to data subject access requests: delayed disclosures (or failing to disclose key documents when first asked) can undermine an employer’s arguments that a claim is “too late.”  If important new evidence is only provided by an organisation long after the event, a Tribunal is more likely to extend time. Check your DSAR handling procedures to ensure completeness and timeliness.

HSBC Bank plc v Chevalier-Firescu

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Yulia Chizh (YuliaChizh@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.