Frontline UK Employment Law Update Edition 36 2025 - Case Updates

1. For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16
2. Sullivan v Isle of Wight Council [2025] EWCA Civ 379
3. Campbell v Sheffield Teaching Hospitals NHS Foundation Trust (First Respondent) and Hammond (Second Respondent) [2025] EAT 42
4. Gold Panda and Pendeli Ltd v O’Keefe [2025] EAT 47
5. Brake Bros v Hudek [2025] EAT 53

1. For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 [LINK]

In this case, the Supreme Court (“SC”) concluded that the terms “sex”, “man”, and “woman” in the Equality Act 2010 (“EA”) should be interpreted as referring to biological sex, not certificated sex.

The Appellant, a feminist organisation that campaigns to strengthen women’s rights in Scotland, initially challenged statutory guidance issued by Scottish Ministers regarding the Gender Representation on Public Boards (Scotland) Act 2018. That legislation created gender representation targets to increase the proportion of women on public boards in Scotland. Under the legislation, “woman” was defined as including people: (i) with the protected characteristic of gender reassignment, (ii) living as a woman, and (iii) proposing to undergo / undergoing / who have undergone a gender reassignment process. The Inner House of the Scottish Court of Session found this statutory definition unlawful as it related to “equal opportunities” – a matter outside of the Scottish Parliament’s legislative competence as it was an area of law reserved to the UK Parliament.

As a result, the Scottish Ministers updated their statutory guidance to state: (i) that the definition of a “woman” is the same as that in the EA, and (ii) that a person with a Gender Recognition Certificate (“GRC”) recognising their gender as female, is considered a woman. The Appellant challenged the updated statutory guidance, arguing that “woman” refers only to biological sex, and their challenge ultimately ended in the SC.

The SC was required to analyse the legal background to the EA, specifically the meaning of “man” and “woman” under that legislation, and whether a trans woman with a GRC was also a “woman” under the EA. In carrying out this analysis, the SC was required to consider Parliament’s intention regarding the Sex Discrimination Act 1975 (“SDA”) (subsequently replaced by the EA) and the Gender Recognition Act 2004 (“GRA”):

• SDA: The SC recognised that Parliament would have intended “man” and “woman” under the SDA to mean biological sex, as although the trans community existed at the time, their recognition and protection did not. The definition of “gender reassignment” was later added to the SDA by regulations in 1999. The SC concluded that there was no indication that the EA modified these definitions, and therefore the context in which the EA was enacted was that “man” and “woman” referred to biological sex and trans people had the protected characteristic of gender reassignment. The SC also stated that because the EA was a self-contained legislation, it should be interpreted without any further recourse to the SDA.
  
  
• GRA: This legislation provides a framework for recognising a person’s reassigned gender. Someone who successfully applies to change their legal sex/gender via the GRA is issued a GRC. A full GRC allows a person’s gender to become “for all purposes the acquired gender”. However, this position is expressly subject to provision made by any other law. The GRA made limited changes to the SDA, but did not amend the definition of “sex”.

The question for the SC was therefore whether the EA displaces the starting position under the GRA that the gender of a person with a GRC becomes their acquired gender for all purposes.

The SC concluded that the definition of “sex” under the EA is binary and therefore, “woman” means, for the purposes of the EA, a biological woman. It decided that a person’s sex under the EA therefore corresponds to their biological sex. In reaching its decision, the SC concluded that a certificated sex interpretation was not necessary and would make the EA incoherent for the following reasons:

1. Pregnancy and maternity discrimination provisions and no variable definition of “woman”: Since only biological women can become pregnant, the protection is necessarily restricted to biological women. It is unlikely to have been Parliament’s intention to prevent a trans man with a GRC from relying on pregnancy and maternity discrimination protections. However, this would be the effect if a trans man with a GRC was legally recognised as a man under the EA (whereas a trans man without a GRC would automatically benefit both under a certificated sex interpretation and a biological sex interpretation). The SC rejected the suggestion of having a variable definition of “woman” depending on the context, because “by its nature a variable definition is neither clear, constant nor predictable.”
   
2. Two sub-groups of trans people would be produced: A certificated sex interpretation would result in an “odd inequality of status” between trans people who have a GRC and those who do not, despite there being no material difference in their personal characteristics. Practically, it would also be impossible for organisations to determine whether someone has a GRC as this is private information. The SC could identify no good reason why this would have been Parliament’s intent.
   
   
3. Loss of autonomy and dignity to groups with other protected characteristics: The EA allows an association to restrict membership, access to facilities etc to “persons who share a protected characteristic”. The SC considered that a certificated sex interpretation would weaken the protections given to, for instance, lesbians, by interfering with their ability to have lesbian-only spaces and associations.
   
   
4. Biological sex interpretation not disadvantageous to trans people: The SC explained a certificated sex interpretation is not necessary for trans people to have protection from direct discrimination. In particular, it emphasised that a trans woman can still claim sex discrimination on the basis she is perceived as a woman, without the need to declare her biological sex. The SC noted that the same is true for protection from indirect discrimination and harassment. Additionally, trans people can also claim discrimination based on gender reassignment. Although the SC noted difficulties with this interpretation in the context of equal pay, it concluded that this did not compel a different conclusion.

The SC also explored the workability of other provisions such as provision for separate and single-sex services, communal accommodation, women’s fair participation in sport, and the public sector equality duty, stating the proper functioning of such provisions also depends on a biological interpretation of sex.

This is a complex decision that impacts on a complex area of law. Whilst the decision has clarified the meaning of terms under the EA, it has unfortunately created much legal uncertainty. Despite the SC’s aims to try to bring certainty and consistency, the decision has put employers in a difficult position when navigating sensitive and often polarising rights in the workplace.

For employers, the key practical considerations relate to the use of single-sex facilities such as toilets and changing rooms and the judgment has created confusion around what an employer should or should not be doing in light of the decision. Other practical implications that may require consideration include how the decision impacts data collection by employers and gender pay gap reporting obligations.

The Equality and Human Rights Commission (“EHRC”) released an interim (non-statutory) update on the practical implications of the decision which aims to highlight the main consequences of the judgment. However, some commentary has challenged the accuracy of some aspects of the guidance. The EHRC launched a public consultation on 19 May 2025 to seek views on and understand how the practical implications of the judgment may be reflected in its future updated Code of Practice for services, public functions and associations. The consultation closes on 30 June 2025, and it is expected that the updated Code of Practice will be issued this Summer.

In the meantime, and whilst we await the updated EHRC Code of Practice, if you would like to discuss the impact of this decision on your business and the potential legal risks arising from it, please contact your usual member of our team.

2. Sullivan v Isle of Wight Council [2025] EWCA Civ 379 [LINK]

In this case, the Court of Appeal (“CA”) confirmed that whistleblower protection does not extend to external job applicants. Although whistleblower protection does extend to NHS job applicants, the Claimant in this case was not analogous to this position. The CA held that this position was justified with regard to the European Convention on Human Rights (“ECHR”).

The Claimant applied for two roles with the Respondent. She was unsuccessful for both roles and subsequently complained about certain things that had occurred at the interviews, including verbal abuse and alleging that there were financial irregularities at a charitable trust (at which a member of the interview panel was a trustee). Following an investigation by the Respondent, her allegations were found to be unsubstantiated. The Respondent failed to offer a further review of the complaint (despite this being provided for in its complaints policy). As a result, the Claimant issued a claim alleging that her complaint about financial irregularities amounted to a protected disclosure and she had suffered a detriment for having made that disclosure, by being denied the right to a further review of her complaint.

As the Claimant was not a “worker” within the meaning of the Employment Rights Act 1996 (“ERA”) nor an applicant for a post with an NHS employer (a specific category entitled to whistleblowing protection under legislation), she was not entitled to whistleblower protection and the Employment Tribunal dismissed the claim. The Employment Appeal Tribunal agreed, and the Claimant therefore appealed to the CA.

The main question for the CA was whether the differences in treatment between those who are entitled to whistleblower protection (i.e. workers and NHS job applicants) and other job applicants, under ERA are compatible with Article 14 ECHR (prohibition against discrimination on any ground).

The CA first determined that the Claimant was not in a relevantly similar position to that of an NHS job applicant, and secondly that treating other types of job applicants differently to workers and NHS job applicants was not discrimination on the grounds of some other status. In its assessment of the legislation and Parliament’s intention, the CA concluded that the legislation that extended whistleblower protection to NHS job applicants was intended to address a specific issue to enable a culture where health service staff could make protected disclosures regarding patient safety and treatment. This was held to be a reasonable and proportionate means to achieve a legitimate aim (namely, to ensure that individuals are not deterred from making disclosures due to fear of not being able to move to another NHS body), and as such the ECHR had not been infringed. Arguments that protection could extend to non-NHS job applicants fail to recognise the fact that legislation necessarily has to differentiate between different groups of people.

The whistleblowing charity, Protect, intervened in this case and has called for whistleblower protection for job applicants. However, this case highlights that whistleblower protection is not generally afforded to external job applicants, and they therefore do not have the same protections under law as workers or NHS job applicants.

3. Campbell v Sheffield Teaching Hospitals NHS Foundation Trust (First Respondent) and Hammond (Second Respondent) [2025] EAT 42 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s (“ET”) decision that the first Respondent employer was not liable for racial abuse by the second Respondent (its employee) towards the Claimant as the abuse did not occur “in the course of employment” and the first Respondent had taken all reasonable steps to prevent such conduct from occurring.

The Claimant, a full-time Branch Secretary for the trade union UNISON and employee of the first Respondent, was approached by the second Respondent, a colleague who had left the union but continued to have subscription fees deducted from his salary.

After being advised to speak to UNISON directly, the second Respondent confronted the Claimant. The Claimant refused to reimburse him, and the second Respondent left before returning angrily and repeatedly calling the Claimant abusive names including calling the Claimant a term with racial undertones.

The Claimant claimed racial harassment against both Respondents. The ET decided that the first Respondent was not vicariously liable for the second Respondent’s racial remark as it was not made “in the course of employment”. Although the remark had been made at the first Respondent’s premises and during the second Respondent’s work hours, it happened during a break and was about a personal union-related issue, unrelated to the second Respondent’s employment duties. Additionally, the second Respondent did not have to be a union member to be employed by the first Respondent.

The ET also concluded that the first Respondent had taken “all reasonable steps” to prevent such conduct (i.e. harassment) from occurring. Those steps included induction training on dignity at work and expected behaviour which emphasised the first Respondent’s core values, annual performance reviews which considered compliance with those core values, posters displaying those values in the workplace, and mandatory equality and diversity training every three years — most recently completed by the second Respondent just 11 days prior to the incident. Therefore, even if the remark had been deemed “in the course of employment”, the first Respondent would have a statutory defence and therefore would not have been vicariously liable for the act of harassment carried out by the second Respondent.

The Claimant appealed to the EAT on the basis that the ET had focused too narrowly on what was said and failed to apply the proper legal test for the “all reasonable steps” defence. The EAT dismissed the appeal, deciding that the ET had balanced all relevant factors and had not made an error of law in the way it applied the defence.

This case highlights the limits of employer liability under the Equality Act 2010 and that, whilst always fact and case specific, employers may not be liable for employees’ actions if they are personal and unrelated to their work/duties, despite taking place on work premises. It also demonstrates the importance for employers of taking proactive preventive measures to prevent discrimination as a means of avoiding liability for the unlawful discrimination of their employees. Whilst the “all reasonable steps” defence is a high bar, this case shows that it is possible to rely on the defence and highlights the key steps that employers should consider taking.

4. Gold Panda and Pendeli Ltd v O’Keefe [2025] EAT 47 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) confirmed that the Respondents acted unreasonably by attempting to remove themselves from the register of companies to avoid liability for compensation awarded to the Claimant by the Employment Tribunal (“ET”). The EAT also confirmed that the ET had been correct in concluding that these actions were part of the conduct of the proceedings (and thus relevant to whether costs should be awarded against the Respondents).

In the initial proceedings, the Claimant successfully brought several claims against the Second Respondent, including unfair dismissal, breach of contract and unlawful deductions from wages. The ET awarded her costs of £8370.98 due to the Respondents’ unreasonable conduct of the proceedings, which included attempting to voluntarily remove itself from the register of companies, failing to object to a potential strike off from the register and failing to notify the Claimant and the ET of its imminent strike off and imminent dissolution until after the completion of evidence and submissions in the proceedings.

Both Respondents conceded that their conduct had been unreasonable but refuted the ET’s conclusion that their actions formed part of the conduct of proceedings. The EAT confirmed that the ET was right to consider the likely effect of the Respondents’ behaviour and their intention behind such behaviour. The EAT concluded that “conduct by a respondent intended to influence the course or outcome of such proceedings by making continuance of them impossible for a claimant” certainly could amount to an act falling within the conduct of tribunal proceedings. The EAT further concluded that the Respondents had intended to frustrate the Claimant’s ability to establish liability. As a result of this, the ET had been correct to treat that as unreasonable conduct and to make a costs order. The appeal was therefore dismissed.

This case demonstrates the importance of fair conduct from parties during tribunal proceedings. Attempts to avoid liability through unreasonable conduct may leave a party at risk of legal consequences, in particular, costs. It demonstrates that any intention to influence the outcome of legal proceedings by unreasonably obstructing a claimant’s ability to establish liability (i.e. to make a judgment unenforceable as in this case) can be treated as misconduct in the way proceedings have been conducted.

5. Brake Bros v Hudek [2025] EAT 53 [LINK]

In this case, the Employment Appeal Tribunal ("EAT") dismissed a finding by the Employment Tribunal ("ET") that there was an implied term in the Claimant’s employment contract that he would be paid for all additional hours worked above the average number of hours intended in the employment contract.

The Claimant was employed by the Respondent as a lorry driver. The employment contract required 5 shifts per week, with an average of 9 hours per shift (later varied to 9.4 hours). However, the contract also provided that the Claimant was required to work such hours as were necessary for the proper performance of his duties. Overtime was contractually payable to drivers only if an additional half shift (of 4.5 hours) or full shift was worked. On occasion, however, ad hoc payments were provided for additional delivery rounds during regular shifts, and on one occasion, time off in lieu had been given. If the Claimant's allocated delivery rounds simply took longer than expected, no additional payment was made. The latter scenario formed the basis of the Claimant's claim.

The Claimant claimed unpaid wages on the basis that he had worked for more than his contracted weekly hours and was entitled to pro rata payments based upon his annual salary for those additional hours (rather than overtime payments).

The ET decided that the contract was silent as to what would happen if the Claimant's average working week ended up being longer than 47 hours (excluding additional shifts) or if his average shift ended up being in excess of 9.4 hours. The ET concluded that the contract provided for an "averaging out" of the Claimant's working hours, and that this implied a term into the contract that if no such averaging out took place within a reasonable period, the Claimant would be paid for all additional hours worked above the intended average. Additional time worked as a normal shift was not overtime for the purposes of the contract, which expressly provided that overtime rates did not apply when normal shifts were extended. Consequently, the ET decided that the additional work undertaken was properly payable at the Claimant’s basic pay rate and ordered the Respondent to pay the Claimant that amount. The Respondent appealed.

The EAT upheld the appeal. It assessed the tests for implied terms, which require that the implication of the term must be necessary to give: (i) business efficacy to the contract and/or (ii) effect to the obvious but unexpressed intention of the parties and concluded that neither principle was satisfied in this case. The contract did not explain over what period of time weekly hours would be averaged, and the effect of the contractual provisions was that weekly hours for drivers were not fixed and might fluctuate from week to week. The EAT therefore decided that whilst the ET correctly concluded that the contract provided a mechanism for flexibility, it was not correct to elevate that flexibility into an enforceable contractual obligation which gave rise to an entitlement to additional pay. The "averaging out" approach did not necessitate an implied term. In any event, neither business efficacy nor the unexpressed intention of the parties justified implying a term that the Claimant would be paid for hours worked in excess of his intended normal working hours, other than when the express overtime provisions applicable to drivers were engaged.

This case highlights the high threshold to imply a term into a contract and the need for clear drafting in employment contracts, particularly for roles that are more likely to have variable working hours and overtime entitlements. It is important therefore to ensure that contracts clearly state whether additional payment is due when employees consistently work beyond their average hours and where fluctuation of hours is common.