UK Employment Law Update

April 16, 2025April 16, 2025 by Ryan Mullen

The Biology Supreme Court: For Women Scotland Ltd v The Scottish Ministers

In For Women Scotland Ltd v The Scottish Ministers, the UK Supreme Court addressed a legal dispute about the definition of ‘woman’ under the Equality Act 2010 (EqA 2010) and the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018). The case concerned whether the Scottish Government’s statutory guidance including trans woman with Gender Recognition Certificates (GRCs) under the term ‘woman’ was lawful. The feminist organisation For Women Scotland (FWS) argued that the EqA 2010 defines ‘woman’ strictly by biological sex, excluding trans women with GRCs from the category.

The Court unanimously upheld FWS’s appeal, ruling that ‘man’, ‘woman’, and ‘sex’ in the EqA 2010 refers to biological sex. It found that the Act’s provisions, especially those related to pregnancy, maternity, and single-sex services, only function coherently when interpreted biologically. The Court emphasised that a certificated sex approach would create impracticalities and legal inconsistencies across the Act, such as in the enforcement of single-sex spaces and protections for sexual orientation.

Furthermore, the judgment clarified that, while trans people are protected under the characteristic of gender reassignment in the EqA 2010, this does not mean that they are covered under the sex-based provisions unless those protections explicitly apply. The Court rejected the idea that the EqA 2010 allows for dual meanings of sex in different contexts, confirming that a consistent, biological interpretation is necessary for clarity and legal coherence.

However, it is important to echo Lord Hodge’s statement in his summary:

‘But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.’

While trans people may not fall under the definition of a ‘man’ or a ‘woman’ in the EqA 2010, gender reassignment remains a protected characteristic in its own right and thus are protected from discrimination on those grounds. Further, they continue to receive protection against direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender. As highlighted in the judgment, if a trans woman applies for a job and, despite performing best in the interviews, a biological man is given the role, she would still have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. ‘The fact that she is not a biological woman should make no difference to her claim.’

The Supreme Court’s decision has significant implications for gender and equality law in the UK. By affirming that ‘sex’ in the EqA 2010 means biological sex, the ruling limits the scope of gender recognition to areas where legal rights are based on sex characteristics. However, it maintains the existing protections for trans individuals under gender reassignment provisions.

March 21, 2025March 27, 2025 by Nic Hart

When Beliefs Collide: Higgs v Farmor’s School

In a hotly anticipated decision, the Court of Appeal has handed down its decision in a case which looks at an employee manifesting their religious belief on social media. Higgs v Farmor’s School demonstrates that it can be difficult to rely on reputational risk alone when dismissing an employee for holding views that are seen as controversial.

Background

Mrs. Higgs, a Christian mother, who held roles as a pastoral administrator and work experience manager at Farmor’s School, voiced her views on her personal Facebook page. Her posts — criticizing the Government’s sex education policies, particularly on issues of gender fluidity and same-sex marriage —sparked a parental complaint that the language was “homophobic and prejudiced.” This complaint set off a chain of events leading to an internal investigation, disciplinary charges, and ultimately, her dismissal for alleged gross misconduct.

Mrs. Higgs challenged her dismissal on the grounds of direct discrimination and harassment under the Equality Act 2010 on the basis of her religious belief that gender is binary and that same-sex marriages are not akin to straight marriages. After bouncing between tribunals, having the claim initially dismissed by the ET then partially allowed on appeal by the EAT, the Court of Appeal eventually ruled that her dismissal was unlawful direct discrimination.

Key Legal Takeaways

Protection of Personal Beliefs

The judgment makes it clear: holding a personal belief—even one that runs counter to mainstream views — cannot serve as a standalone justification for dismissal. The Court underscored that Mrs. Higgs’s belief in a binary conception of gender and her stance on same-sex marriage are protected under the Equality Act 2010. This ruling affirms that personal beliefs, regardless of their popularity, deserve protection.

Expression vs. Belief: The Critical Distinction

A pivotal point in the decision was the distinction between the belief itself and the manner in which it is expressed. While the ET described Mrs. Higgs’s language as “florid and provocative,” the Court emphasised that an employee’s personal belief is not inherently problematic. The focus must instead be on whether the expression of that belief crosses the line into conduct that causes harm. Employers must therefore be cautious not to conflate disagreeable opinions with actionable misconduct.

The Imperative of Proportionality

Employers are required to demonstrate that any disciplinary measures are proportionate to the issue at hand. In this case, the perceived reputational risk — stemming from a solitary complaint — was deemed too speculative to justify such a drastic response. Further, Mrs. Higgs’ had provided no indication that she took this message into work, and no complaint had been made against her during the course of her employment. The ruling sends a robust message: disciplinary actions must be supported by clear evidence of harm and must align with a legitimate business aim.

Practical Implications for Employers

Separate Belief from Conduct: Employers should critically assess whether it is the underlying belief or the way it is expressed that is problematic. Criticism should target behaviour that directly undermines workplace values, not the belief itself.
Ensure Disciplinary Measures Are Justified: Any action taken against an employee for expressing a protected belief must be both necessary and proportionate. Employers need to gather objective evidence that demonstrates the actual harm caused – reputational risk alone may not be enough to justify dismissal.

March 7, 2025March 7, 2025 by Ryan Mullen

Employment Rights Bill: further Government amendments

The Government’s most recent round of proposed amendments to the Employment Rights Bill—detailed in the Amendment Paper published on 5 March 2025—brings a fresh wave of proposed reform. These changes challenge established norms and empower both workers and unions, while simultaneously tightening the screws on non-compliant employers.

Highlight: Agency Workers

The amendments introduce a new chapter into the Employment Rights Act 1996 that would clearly define “agency worker” for the purposes of guaranteed hours and shift rights. Agency workers – often caught in a grey area between traditional employment and temporary work – would enjoy defined rights regarding shift payments and guaranteed hours during a currently undefined reference period. A follow-up amendment would ensure that even those without a traditional worker’s contract aren’t left without recourse if wages are withheld. Finally, the amendments would allow for worker and agency worker collective agreements to expressly exclude and replace certain statutory duties or rights.

Highlight: Collective Redundancy Protected Period

The “protected period” for collective redundancy consultations would be extended from 90 to 180 days. This change would empower Tribunals with a longer window with which to impose a higher protective award for employees in cases of collective redundancy. However, as confirmed by the Government, no interim relief will be available for those bringing claims for protective awards and/or unfair dismissal claims in cases of ‘fire and rehire’.

Highlight: Other Amendments

The Amendment Paper makes a whole host of further amendments that, while perhaps not as important as the above, are still of note, including:

A legal obligation to keep detailed records demonstrating compliance with annual leave and other working time entitlements.
The definition of “employment business” under the Employment Agencies Act 1973 being expanded to cover modern arrangements, including umbrella companies.
Removal of the lower earnings limit for Statutory Sick Pay, to ensure that all employees are entitled to SSP (albeit for lower earners, at 80% of their average weekly earnings if lower than the current statutory rate).
Trade union recognition procedures to modernize collective bargaining and protect against ‘unfair practices’ intended to influence the outcome of a recognition application.
Trade unions would no longer have to renew their political resolutions every ten years to maintain their political funds.
The rules governing industrial action ballots being simplified – replacing numerical thresholds with majority voting and extending the ballot’s effective period to a fixed 12 months.
Trade union access agreements could include non-physical entry, such as, for example, digital right of access.
The Secretary of State may issue notices of underpayment when statutory pay is breached. A penalty framework would be introduced equal to 200% of the underpayment, capped at £20,000.00.
The Secretary of State being granted enhanced powers to enforce compliance through court orders and tribunal proceedings. Notably, if a worker is unlikely to bring a claim, the government could step in and initiate proceedings on their behalf.
The amendments would allow the Secretary of State to provide legal advice and representation in employment-related disputes. Importantly, there are now provisions for recovering the costs of such legal assistance from awarded costs and even for recouping enforcement expenses from non-compliant parties.

October 15, 2024November 23, 2024 by Duane Morris

Unreasonable Actions Require (All) Reasonable Steps: UK Developments in Workplace Sexual Harassment Policy

On 26 October 2026, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA) will come into effect, alongside updated guidance from the Equality and Human Rights Commission. Under the WPA, employers will face new proactive duties to prevent sexual harassment in the workplace. This significant shift means that it’s no longer enough to react to incidents after they occur; employers must now take reasonable steps to prevent them from happening in the first place.

Failure to comply with these strengthened protections could result in substantial financial penalties, including a potential 25% uplift on any employment tribunal awards ‒ a risk that no business can afford to ignore. Given the uncapped damages associated with discrimination claims, the stakes have never been higher.

This update will break down what these legal changes mean for your business and provide practical guidance on how to remain compliant. By understanding and acting on these new obligations now, you can create a safer work environment and protect your organization from significant legal and financial repercussions.

October 11, 2024November 23, 2024 by Duane Morris

Power to the People (to Be Consulted) –The UK Employment Rights Bill 2024

On 10 October 2024, the Labour government published the Employment Rights Bill. While the content was not surprising, given much was detailed heavily in their Plan to Make Work Pay campaign document, what is a surprise is how much of the specifics of the strengthened rights are subject to consultation. In the Next Steps to Make Work Pay policy paper published by the Department of Business and Trade, we have been advised that the government “expect to begin consulting on these reforms in 2025, seeking significant input from all stakeholders, and anticipate this meaning that the majority of reforms will take effect no earlier than 2026. Reforms of unfair dismissal will take effect no sooner than autumn 2026.”

Notwithstanding the long runway the Employment Rights Bill has to implementation, it would be prudent for employers to get to grips with the pending legislative changes in order to ensure a safe landing as the bill becomes law.

September 17, 2024November 23, 2024 by Duane Morris

Taking a Proactive Approach to Probationary Periods

The practical details on proposals for employment legislation reform under Labour’s plan within the first 100 days of the new government has yet to be clearly defined, and the reason may be that much of the detail is still to be agreed upon within Whitehall.

“Intense” Conversations

The recent discussions between Deputy Prime Minister Angela Rayner and Business Secretary Jonathan Reynolds regarding probationary periods are a case in point.

Angela Rayner has been a vocal advocate for Day One rights for workers following a short probation period and this remains her position. Jonathan Reynolds however is cognisant of the views of many businesses that Day One rights and a short probationary period could lead to a swift increase in tribunal claims for unfair dismissal which are costly to businesses, both in terms of time and money. As such the Business Secretary is pushing for a minimum nine-month probationary period.

June 28, 2024November 23, 2024 by Duane Morris

Required Holiday Reading ‒ Labour’s Plan to Make Work Pay

The General Election on 4 July is now imminent, and it seems likely that on Wednesday 17 July 2024, Parliament will be opening with a Labour government, meaning more changes to employment legislation in a year that has seen new legislation, and amends to existing legislation, on an almost monthly basis.

The implications of a Labour government could be far reaching and impactful across all organisations, and employers would be advised to read and consider the proposals raised by the Labour party regarding reforms to current employment legislation and practices under their Plan to Make Work Pay.

May 8, 2024November 23, 2024 by Duane Morris

Brighter Days for Care Providers?

As we enter mid-May, with the anticipation of brighter days ahead, we reflect on the many changes to employment legislation so far in 2024, particularly regulations that benefit carers and those taking family leave that became effective in April.

On 6 April 2024, the Carer’s Leave Regulations 2024 brought into effect the rights set out under the Carer’s Leave Act 2023, which provides carers with a statutory right to unpaid leave to assist in their caring responsibilities.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 also came into force on 6 April 2024, as well as amendments to paternity leave ‒ both of which apply to cases where the expected week of childbirth or placement is on or after 6 April 2024.

May 1, 2024November 23, 2024 by Duane Morris

AI in the Workplace ‒ Embrace or Evade?

If 2023 was the year that generative AI entered mainstream consciousness, 2024 will be the year generative AI became part of mainstream establishment following an explosion of growth in users, both commercial and personal.

Full disclosure from the outset: This article is not a product of generative AI and does not discuss the technology and advancements of AI models. Rather this article seeks to highlight some of the workplace issues that may be facing organisations as generative AI becomes an integral part of our working lives.

The discussions of the benefits and pitfalls of generative AI and models such as Google Bard, Microsoft Copilot, Perplexity, ChatGPT and DALL-E have been widespread, and show no sign of abating. The number of organisations expanding or implementing the use of predictive AI and generative AI models is ever increasing, as is the number of employees becoming aware of the benefits of using AI models in their own daily tasks.

Whilst AI is by no means a new concept, the integration of generative AI models into organisations has been exponentially rapid. A survey undertaken by KPMG in March and June 2023 found that 20% of businesses were already using generative AI and 67% of executives confirmed that budget was allocated towards generative AI technology.

March 25, 2024November 23, 2024 by Duane Morris

No Spring Break in Calculating Holiday Pay!

On 1 January 2024, the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 became law, bringing into force a number of amendments to the right to annual leave and the right to holiday pay under the Working Time Regulations 1998.

Further changes will become effective next week, on or after 1 April 2024, regarding holiday pay and entitlement to irregular hours and part-year workers.