EmpLaw Newsletter June 2025

Tribunal awards NHS worker nearly £30,000 in compensation for Darth Vader Comparison

Employees and workers have legal protection against being subjected to a “detriment” on the ground that they have made a protected whistleblowing disclosure. The disclosure does not have to be the only reason for the detriment, but it must have had a more than a minor influence on it. Employers should make it absolutely clear, through policy and training, that employees who have made potential protected disclosures should not be treated any differently as a result. The risks of doing so are significant, as the recent tribunal case of Rooke v NHS Blood and Transplant illustrates.

In this case, the Claimant raised a protected disclosure with the Respondent. Some time later, she went on a team-building session which included a Star Wars-themed personality test. The Claimant’s colleague (whose conduct had been, in part, the subject of the protected disclosure the Claimant had made) completed the test on her behalf and announced to the team that the Claimant matched the personality of the villain, Darth Vader.

Although the test described the Darth Vader archetype as a "focused individual who brings the team together," the tribunal found the comparison insulting. The Claimant’s unchallenged evidence was that her colleague had, as a result of her protected disclosure, been told that she was a bad representative of the team. The tribunal found this more than sufficient to satisfy the requirement that the Darth Vader comparison was “on the ground” of the Claimant having made the protected disclosure.

The Claimant brought four separate claims against the Respondent. Only the whistleblowing detriment claim was successful. However, the financial and reputational consequences for the Respondent were significant. Compensation in claims of whistleblowing detriment is uncapped and can include injury to feelings. The Claimant was awarded nearly £30,000.

Employers should set clear expectations of workplace behaviour and interaction. It must be absolutely clear that victimising colleagues who have raised any form of complaint at work is not tolerated.

Remote Work Realities: Legal and operational risk

Remote and hybrid working have reshaped how organisations operate. For HR professionals, they’ve also created new legal and practical responsibilities. From updated legal rights to changing expectations, here’s what you need to know to stay compliant and keep your people supported.

1. Health and Safety still applies at home
The Health and Safety at Work Act 1974 still applies, even when employees work from home. That means assessing whether their home working setup is safe. It can involve consideration of factors as diverse as suitable chairs and screen positioning and mental health risks. HR need to make sure that risk assessments are carried out and wellbeing is regularly monitored.

2. Right to request Flexible Working – Day One entitlement
Since April 2024, all employees can request flexible working from day one. Such requests can include a request to work from home some, or all, of the time. Employers have two months to respond and must consult before refusing. There are 8 statutory grounds of refusal including detrimental impact on quality and detrimental impact on customers. At least one must be cited. HR must manage increasing requests to work from home fairly and consistently.

3. Monitoring & GDPR – don’t cross the line
Home working brings data privacy into sharper focus. Monitoring software must be necessary, proportionate, and transparent. HR needs to work with IT and legal teams to assess risks, complete impact assessments, and communicate clearly to staff.

4. Data Security – managing remote risk
Home networks and shared devices can create cybersecurity vulnerabilities. HR must lead on training, clear remote working policies, and ensuring employees understand expectations - including consequences for breaches.

5. Bridging gaps between employees and leadership
Hybrid working has shifted perceptions. Employees now see flexibility as a norm, while leaders may worry about culture, collaboration, and fairness. HR must bridge that gap - creating hybrid schedules, maintaining morale, and ensuring no team member feels left out.

Tribunal right to conclude it had jurisdiction to hear claims of news reporter who worked in Asia and UK for US news outlet

Where an employee works overseas, it is not always clear whether or not a UK Employment tribunal has territorial jurisdiction to hear any claim which the employee may wish to bring. Territorial jurisdiction for employment tribunals generally hinges on the employee's connection to the UK, especially in cross-border employment cases. The tribunal must determine if there's a "sufficiently strong" connection between the UK and the employment relationship, even if the employee doesn't work physically within UK territory. Where the employee is based abroad and all of their work is for the benefit of his or her UK-based employer, that will be a strong factor pointing towards a sufficiently strong connection. A further relevant factor is the extent to which the employee is able to bring a claim elsewhere; if they have no remedy elsewhere that will be a weighty factor in favour of establishing territorial jurisdiction in the UK.

This principle was explored by the Employment Appeal Tribunal in the recent case of Cable News International Inc v Bhatti. The Claimant, a news reporter, brought claims of victimisation, unfair dismissal, equal pay and holiday pay against the US-incorporated Respondent. A preliminary issue arose as to whether the claims fell within the jurisdiction of the employment tribunal: whether there was a sufficient “connection” to Great Britain. The Claimant, a British citizen, worked for the Respondent, whose head office was in Atlanta, USA. The Respondent had a London bureau and a Hong Kong bureau. From 2013 to 2017, the Claimant worked under various contracts, mainly covering stories in Asia. Although she split her time between Bangkok and London, from January 2015 to April 2017, she was primarily based in Bangkok, working from a rented apartment. In March 2017, she gave up the apartment and moved back to London, where she began reporting to the London bureau and completed one day of work. On 29 August 2017, she was told by the head of the Hong Kong bureau at the London office that her contract would not be renewed. She was asked to return her pass and was escorted from the premises.

The Claimant brought claims in the employment tribunal. The tribunal concluded that, from 1 March 2017 onwards, but not before, London had displaced the “territorial pull” of Bangkok as the Claimant’s base, such that the tribunal had jurisdiction to hear her claims from this date onwards. The Respondent appealed.

The Employment Appeal Tribunal, dismissing the appeal, held that the sufficiency of connection issue was an evaluative judgment. For the last 10 months of her employment, from 1 March to 31 December 2017, the Claimant was not working out of Bangkok or anywhere else in Asia, and had no work role in Asia. London was the only candidate to be her work base. It was no longer Bangkok, nor was it Hong Kong or Atlanta.

Disabled employee was fairly dismissed for misconduct despite some aspects of his poor behaviour being found to have arisen from his disability

It is very important that employers take account of the needs of disabled employees and the fact that their workplace behaviours may, for a reason related to their disability, sometimes differ from those of their colleagues. The Equality Act 2010 protects disabled employees from discrimination arising from a disability. This occurs where an employee is treated unfavourably because of something arising from their disability, rather than the disability itself. However, this does not mean that employers are required to accept poor conduct from a disabled employee, on the basis that that conduct might flow from a disability. Employers are able to justify this form of discrimination if they can show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

This was illustrated in the recent Employment Appeal Tribunal case of Duncan v  a multinational technology equipment and services company. The Claimant had ADHD and Autistic Spectrum Disorder. The Respondent found inappropriate and highly offensive messages had been exchanged between the Claimant and two colleagues at work on the ‘Slack’ messaging service. The Claimant stated that his disabilities had had an impact on his behaviour although, when asked to provide further details, the Claimant did not engage. The Claimant was summarily dismissed.

The Claimant claimed unfair dismissal and discrimination arising from a disability. The Claimant alleged that he had been treated unfavourably because of his use of offensive and inappropriate language and that this conduct arose from his disability.

The EAT held that dismissal was justified as a proportionate means of achieving the legitimate aims of preventing the use of threatening language about managers and colleagues, preventing harassment and other behaviour that leads to a hostile environment, and preventing threats of violence against colleagues. Important factors included that the behaviour had occurred during work time; that the language used was very strong, foul and abusive and that the Claimant had not provided any assurance that the remarks would not be repeated.

This is a helpful case for employers, illustrating that poor conduct can be sanctioned even where it might arise from a disability – provided the sanction can be objectively justified. If faced with a similar situation, HR should:

• Take account of any medical evidence produced.
• Consider the extent to which the conduct arose from a disability.
• Consider the legitimate aim you are pursuing by taking this action – and clearly document it.

Consider whether the action you are proposing to take is proportionate: could a less draconian measure still achieve the aim?

Vicarious liability for negligence committed towards a third party prior to a TUPE transfer does not pass to the transferee

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) sets out a legal principle that, where an economic entity (often a business) transfers from one business to another, the employees assigned to the economic entity transferring have their employment transferred alongside the business (business transfer). A TUPE transfer can also occur where responsibility for a service is transferred to a new provider – the employment of employees who are part of an organised grouping who deliver a service transfers to the new provider (service provision change).

In either case, Regulation 4 TUPE states that all of the outgoing employer’s “rights, powers, duties and liabilities under or in connection with" the transferring employees' contracts, pass to the transferee. The practical impact of this is often straightforward: contracts of employment transfer and employment claims which the employee has against the employer also transfer. In the recent case of ABC v Huntercombe (No 12) Ltd and others, the High Court considered whether this principle extended to the transfer of liability for an act of negligence (a tort) committed by a transferred employee towards a third party, prior to a transfer.

In this case, the Claimant issued High Court proceedings seeking damages for injuries suffered while she was an in-patient at a hospital owned and operated by Huntercombe (the transferor). The Claimant argued that the transferor was vicariously liable for the acts of two of its employees who, following a subsequent TUPE transfer, had become employed by Active Young People Ltd (the transferee).

Employers are generally liable for torts (such as negligence) carried out by their employees in the course of employment. The High Court held that the automatic transfer principle under Regulation 4 TUPE did not extend to a transferor’s vicarious liability for torts committed by its employees towards a third party, prior to a TUPE transfer. Huntercombe’s vicarious liability for the alleged negligence of its employees towards the Claimant patient did not transfer for Active Young People, even though the employment of the allegedly negligent employees had transferred to them.

The High Court considered that the purpose of TUPE is to safeguard the rights of transferring employees after a transfer. The transferee takes on any rights or liabilities that arise from the employee's contract with the transferor. These can be based on tort or contract, but they must involve direct obligations between the employee and employer. Vicarious liability, which involves responsibility to a third party rather than directly between the contracting parties, is too remote to transfer under TUPE. The earlier County Court decision in Doane v Wimbledon Football Club, which suggested otherwise, should not be followed.

This case provides welcomed clarity for employers who inherit employees under TUPE, confirming that they will not be held liable for any acts committed by those employees towards third parties prior to any transfer.

Top tips for getting redundancy selection criteria right

When managing a redundancy process, fair and objective selection criteria are crucial. Poorly chosen criteria can lead to legal claims, damage staff morale, and undermine the integrity of the process. Here’s how to get it right:

1. Aim for objectivity
Where possible, base criteria on clear, measurable data such as performance records, disciplinary history, or specific skills. These are easier to justify and help avoid disputes about how scores were awarded.

2. Handle subjective criteria with care
If you do use more subjective measures — such as “attitude,” “flexibility,” or “team fit” - ensure they’re clearly defined, free from disguised discrimination, supported by real examples, and assessed by more than one person. Vague or inconsistently applied criteria can result in allegations of bias.

3. Adjust for absence related to disability or pregnancy
If you include attendance as a selection factor, remember to remove any absence related to disability or pregnancy. Failing to do so could result in claims under the Equality Act 2010 for discrimination.

4. Watch for hidden discrimination risks
Be alert to criteria that may unintentionally disadvantage particular groups. In the recent tribunal case of Norman v Lidl, an employee in his 60s succeeded in an indirect age discrimination claim after the company used qualifications as a criterion. The tribunal accepted that older workers were less likely to hold formal qualifications and awarded the claimant over £40,000.

5. Be careful with length of service
While this can be a useful tiebreaker, relying on it as the sole or main factor risks indirect age discrimination. Any such approach needs careful justification.

Always sense-check your scoring matrix through the lens of fairness and inclusivity.

Mistaken belief and dismissal

Dismissals are challenging, and even careful employers can get it wrong. However, if a dismissal is based on a genuine mistaken belief, it can still, in some circumstances, be fair.

1. Conduct

For misconduct dismissals, employers only need a genuine, reasonable belief in the employee’s guilt based on a fair investigation. The classic test from Bhs v Burchell confirms that it’s not about proving guilt but whether the employer reasonably believed in the misconduct after conducting a reasonable investigation.

2. Capability

Employers don’t need absolute certainty that an employee is incapable of performing their job. A reasonable belief based on medical reports or performance assessments can justify a fair dismissal, even if the employer is later proven wrong.

3. Redundancy

To rely on redundancy as the fair reason for dismissal, the employer needs to get it right. The employee’s role must be genuinely redundant at time of dismissal - as a result of the closure of the business or workplace, or due to a reduced need for work of a particular kind. A mistaken belief is less likely to ‘cut it’ where the reason relied upon is redundancy.

4. Illegality

If an employer mistakenly believes continuing employment would be illegal, dismissal for illegality is unlikely to be fair. However, they may still argue SOSR if the belief was genuinely held and reasonable.

5. Some Other Substantial Reason (SOSR)

SOSR is the most forgiving category, allowing employers to rely on genuine but mistaken beliefs. For example, in Impact Recruitment Services Ltd v Korpysa, the employer mistakenly believed the employee had resigned and treated her employment as terminated. The Employment Appeal Tribunal held that a genuine, reasonable belief in resignation could be a fair SOSR reason.

Takeaway

While genuine mistakes can sometimes justify a fair dismissal, employers must still act reasonably and follow fair procedures. Clear communication, thorough investigations, and legal advice can help avoid costly missteps.

Tribunal should have taken a contextual approach when considering whether Claimant had done a ‘protected act’

Victimisation is a form of discrimination. It occurs whenever an employee suffers a detriment because they have done or intend to do a ‘protected act’. A 'protected act' means taking action related to discrimination law. This includes:

• making a complaint of discrimination or harassment
• supporting someone else's complaint
• gathering information that might lead to a complaint
• acting as a witness in a complaint
• saying something or giving evidence that does not support someone else's complaint

The law also protects a person from victimisation when someone else thinks the person has done or intends to do any of the things above.

It is sometimes easy to see that an employee has done a protected act – for example, if they expressly claim discrimination or act as a witness in someone else’s clear discrimination complaint. However, it is not always that clear-cut. In the recent case of Kokomane v Boots Management Services, the Employment Appeal Tribunal held that, when considering whether a ‘protected act’ has occurred in a victimisation claim, tribunals should always consider the wider context.

The Claimant, who was black, brought a claim of victimisation against the Respondent. The alleged ‘protected acts’ were an initial grievance where she alleged that she had been treated differently to her colleagues related to an allegation of shouting, and a later grievance where she had complained that the original grievance had not been acted on and where she had also alleged bullying. She did not expressly state that she felt that the difference in treatment was due to her race.

The EAT held that the allegation relied on as a ‘protected act’ need not state explicitly that an act of discrimination has occurred. All that is required is that facts should be asserted which are capable in law of amounting to an act of discrimination. When faced with a situation where the protected act is not a straightforward expressed discrimination allegation, tribunals should ask the question: What would the Respondent have understood the complaint to mean from the information provided by the Claimant as part of her complaint? That understanding would include the factors which were known to the Respondent. Those factors would, in this case, have included the fact that the Claimant was the only black employee, the content of the grievance letter alleging difference in treatment, and the discussions at the grievance meeting where the fact that shouting may be connected to black women in a negative way was raised.

Bonuses and Maternity Leave: What HR Needs to Know

When an employee is on maternity leave, their contract continues, and they remain entitled to most benefits - except for “wages or salary” (as defined by Regulation 9 of the Maternity and Parental Leave Regulations 1999). Bonuses, which often fall into this category, need careful handling.

What’s the general rule?

Under the Equality Act 2010, treating someone unfairly because of pregnancy or maternity is unlawful. But employers can reduce bonus payments to reflect time taken on non-compulsory maternity leave.

Employers must pay:

• Bonus due for the period before maternity leave started
• Bonus for the two weeks of compulsory leave immediately after birth
• Bonus for the period after maternity leave ends

The rest of the bonus period can be reduced proportionately to reflect time off.

What types of bonuses are covered?

Most performance-related bonuses, including team and company targets, and regular bonuses, like Christmas bonuses, are treated as deferred pay and fall under this rule.

Even discretionary bonuses are likely to be covered. If they’re paid regularly, they may be seen as a contractual entitlement, regardless of how they are labelled. The same pro rata principle applies.

Be prepared to adjust targets

If performance targets are used to calculate bonuses, clearly explain how these will be adjusted to reflect any period of maternity leave. For example, by pro-rating targets or applying average performance measures. Failure to do this could risk a claim of discrimination.

Don’t forget share schemes

Other long-term incentive plans (like share awards) should also follow the same approach, with awards reduced in line with time spent on maternity leave.

What should HR do?

• Make sure bonus schemes clearly state the rules on maternity leave
• Define the bonus period (e.g. calendar year or financial year)
• Be transparent on how performance targets will be adjusted if an employee has been on leave

And finally,

Bloomberg reports that large American corporates, struggling to enthuse their employees with ‘back to the office’ rhetoric, are employing ever more contrived job requirements and monitoring to inject ‘joy’ into their workplaces. Examples cited include Tiffany & Co., where executives required staffers to post and engage more with “Tiffany Joy”, an internal app designed to boost morale. Employees mockingly gave the app a new nickname “Forced Joy’”. Starbucks have introduced a requirement that employees add a handwritten note or emoji to each takeaway cup. Ideas were circulated by memo for employees who were unsure what to say. It seems that Starbucks cannot rely on employees being motivated to enhance customer experience and pass-on their own ‘joie de vivre’ organically, so are having to make it a job requirement.

 As the Bloomberg article concludes, happy and engaged employees are good for business. But so is creating an environment where workers can effectively do their jobs and find their own sources of workplace joy. Companies might find if they invest in the latter, the former will organically follow - no faking it required.