EmpLaw Newsletter May 2025

Supreme Court rules ‘sex’ in Equality Act 2010 means biological sex

The Supreme Court has ruled that, for the purposes of the Equality Act 2010 (EA 2010), the term “woman” refers to biological sex – not gender identity. This means that trans women, even those with a Gender Recognition Certificate (GRC), do not fall within the legal definition of “woman” under the Act.

The ruling came in the case of For Women Scotland v The Scottish Ministers, which challenged Scottish Government guidance issued in 2018. That guidance supported a law to improve the representation of women on public boards and stated that trans women with a GRC should be treated as women. For Women Scotland challenged this interpretation, arguing it conflicted with the legal meaning of “sex” in EA 2010.

The Supreme Court agreed. It ruled that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex. Defining sex by reference to gender recognition, the Court said, would create confusion and inconsistency across the statute. It would undermine sex-based provisions – such as those relating to pregnancy, single-sex spaces, and sexual orientation – which all require a clear and consistent biological definition to operate effectively.

Key points from the ruling:

• Statutory coherence: Redefining sex to include GRC-acquired gender would disrupt the Act’s logic and practical application.
• Unfair division among trans people: Giving extra rights to GRC-holders, as the Sco       ttish Minister’s interpretation did, would have created an unfair division among trans people and left service providers unable to lawfully distinguish between them (as they are unable to ask whether a person holds a GRC).
• Sexual orientation protections: The Scottish Ministers’ interpretation could compromise spaces intended for single-sex meetings, such as lesbian-only groups.
• Single sex spaces: Provisions relating to single-sex services, spaces, hostels, and medical spaces required a consistent, biological definition of sex to function properly.
• Trans protections remain: The Court emphasised that trans individuals are protected under the EA 2010 through the separate protected characteristic of gender reassignment. They can also bring claims via discrimination by perception or association, and through indirect discrimination protections under section 19A EA 2010.

Comment

While the ruling is contentious, it reflects a strict approach to statutory interpretation. Section 9(3) of the Gender Recognition Act 2004 allows exceptions to the general principle that GRC-holders are recognised in their acquired gender “for all purposes”, where it would render another statute incoherent. The Supreme Court found that applying this principle to the EA 2010 made it incoherent.

Importantly, the Court reiterated that trans people still have strong legal protections in employment under existing equality law via the protected characteristic of gender reassignment and the extension of protection from harassment, direct and indirect discrimination to include perceived characteristics, and discrimination by association. It is in the area of service provision that the ruling is likely to be most impactful.

The final whistle: No whistleblowing protection for external job applicants

Whistleblowing protection in the UK exists to shield workers from detriment and dismissal when they speak out about wrongdoing. But how far does that protection stretch? According to the Court of Appeal in Sullivan v Isle of Wight Council, not far enough to cover external job applicants - unless they’re applying for a role in the NHS.

Where the line Is drawn

Section 47B of the Employment Rights Act 1996 protects “workers” from being treated unfairly for making protected disclosures. Over the years, this definition has expanded to cover various types of workers, including agency staff, judges, and certain self-employed professionals in the NHS. But it doesn’t stretch to people applying for jobs - except, notably, those applying for NHS roles, where specific whistleblowing protections apply.

In Sullivan v Isle of Wight Council, Ms Sullivan had applied for a role with the Isle of Wight Council and raised concerns during the recruitment process that could have amounted to protected disclosures. After failing to secure the role, she claimed she had been treated detrimentally due to whistleblowing. The Court of Appeal disagreed.

The Human Rights angle

The key consideration in Sullivan was whether, by excluding external job applicants (other than those for NHS roles who are given specific protection), the law protecting whistleblowers from detriment breached Article 14 of the European Convention on Human Rights (ECHR), read with Article 10 (freedom of expression). Article 14 protects individuals from discrimination on listed grounds and also if they belong to an ‘other status’. Judges had successfully argued in Gilham v Ministry of Justice that they were an ‘other status’ who had been discriminated against by not falling within whistleblowing protection and that the legislation should be interpreted to include them so that their right to freedom of expression was protected.  Ms Sullivan was trying to argue something similar as an external job applicant.

The Court acknowledged that being an external job applicant could count as an ‘other status’ under Article 14. But it ultimately found no unlawful discrimination. Applicants are simply not in analogous position to current workers, and the purpose of whistleblowing protection is to support disclosures from people already in a working relationship. The Court also found the exclusion was justified - the aim was to protect public interest, and that aim was met by focusing protections on workers and NHS applicants.

Why it matters

This case confirms that, outside the NHS, people applying for jobs are not covered by whistleblowing protections. Employers and HR professionals should be aware of these limits. While whistleblowing rights are broad, they’re not all-encompassing. The Sullivan decision draws a clear line - and it leaves most external applicants without a whistle to blow.

Things aren’t always as they seem: the need to tread carefully where behaviour may have disability as its root cause

The Equality Act 2010 protects employees from discrimination based on nine protected characteristics. One of these protected characteristics is disability. Disability discrimination can take several different forms. One form of discrimination, which only applies to the protected characteristic of disability, is discrimination arising from a disability. This occurs when you treat someone unfavourably because of something that is a consequence of their disability, not because of the disability itself. It is not always easy to spot and prevent.

For example, in Muir v UK pharmaceutical company, which is a case from last year, Mr Muir’s employer knew he had depression and anxiety. Colleagues said he had a ‘Jekyll and Hyde’ character and his employer dismissed him for gross misconduct after complaints about his aggressive behaviour.

The employment tribunal held that his ‘overly forceful’ manner was something arising from his disability and he was dismissed because of this. It is possible to justify this form of discrimination if the employer can show that its conduct was a proportionate means of achieving a legitimate aim. In this case, the tribunal accepted that having a safe environment where employees behave acceptably was a legitimate business aim. However, sacking Mr Muir was a disproportionate way of achieving that aim. Mr Muir’s claim of discrimination arising from a disability was successful.

In Smith v Alpha Plus Group, Mr Smith, who was a teacher, kept falling asleep at his desk and parents complained that he shouted at pupils for no reason. A tribunal held that this behaviour arose from his mental health disability, and it was disproportionate to dismiss him.

Now, employers are able to take action to address conduct or performance issues arising in consequence of a disability. However, the action taken in response must be justified. Warnings may be more appropriate in the first instance. Adjustments which could alleviate the issue should be considered, in line with the positive duty to make reasonable adjustments for disabled employees.

Employer successfully relies on ‘All Reasonable Steps’ defence in racial harassment case

Under the Equality Act 2010, employers can be held liable for harassment by their employees carried out “in the course of employment.” This can feel like a high bar, especially since employers can’t fully control what employees say or do. However, there is a defence available: if an employer can show it took all reasonable steps to prevent the harassment, it may avoid liability.

This defence is rarely successful. It requires the employer to show they did everything reasonably practicable to prevent the behaviour - in place before the incident occurred. The steps must be proportionate, taking into account the size and resources of the organisation.

Tribunals apply a two-stage test, as confirmed in Canniffe v East Riding of Yorkshire Council:

• Identify the steps taken by the employer.
• Consider whether there were other reasonable steps that could have been taken. If so, the defence fails.

Case spotlight: Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Hammond

The recent case of Campbell is a rare example of this defence being upheld. Mr Hammond, a trade union member, made a racially abusive comment during an argument with Mr Campbell, a Trust employee and union Branch Secretary. The tribunal found the comment had been made but ruled the employer, the NHS Trust, was not liable. The Employment Appeal Tribunal agreed.

The Trust’s proactive steps included:

• Induction sessions on dignity at work, introducing core ‘PROUD’ values
• Annual performance assessments considering EDI compliance
• Posters promoting workplace values
• Mandatory EDI training every three years, which Mr Hammond had recently attended

No additional reasonable steps were identified during the hearing. As a result, the defence succeeded.

Sexual harassment: preventative duty

It should be noted that, for sexual harassment, the law has gone further. A new duty under Section 40A of the Equality Act requires employers to take reasonable steps to prevent it. If breached, tribunals can uplift awards by up to 25%. Although the language differs slightly (the word “all” is missing from the new duty), upcoming changes in the Employment Rights Bill are expected to formally align the two tests.

Practical tips for HR

To rely on the defence:

• Carry out regular harassment risk assessments
• Maintain up-to-date policies and training
• Train managers to recognise and act on concerns
• Ensure policies are followed in practice, not just on paper

As Campbell shows, robust and well-implemented anti-harassment measures can make a real difference.

Referring to non-white colleague by the wrong name found to be race discrimination

It’s a common issue - you come across a colleague in the corridor at work and your mind goes blank – what’s their name again? Your mind is racing through the possible options, trying to place the individual in question. Sometimes you strike lucky, and the name comes to you. Other times, you draw a blank. In the latter case all you can hope is that a nod and smile will suffice. No harm is done, and you both continue about your daily business.

But what if you’d reached for a name and come up with the wrong one? Embarrassing – yes. An act of discrimination? You’d perhaps think not. But that is exactly how a recent Employment tribunal viewed the actions of an employee who referred to a non-white colleague by the wrong name. In Sharma v car manufacturer, the Claimant, an Indian engineer, accused his white colleague, of race discrimination when she called him the name of another employee of Indian descent. The tribunal agreed and concluded that, given that the individuals had different looks and accents, the mistake had happened because of the Claimant’s race. The Claimant’s direct race discrimination claim succeeded. The tribunal held that such treatment was “unlikely to have taken place with the Claimant’s white colleagues”.

This case seems, on the face of it, to be setting a very high bar for employee behaviour and seems to leave very little room for even genuine error. After all, the employee in question only used the wrong name once. However, it is perhaps important to view the ruling in the context of this particular case: the Respondent gave no alternative explanation for the error and the employee who had mixed the names up did not give evidence before the tribunal. There was nothing put forward by the Respondent to rebut the inference, raised on the facts, that this was race discrimination.

Employers should make sure that anti-harassment training includes a reminder of the importance of referring to colleagues by the correct name. It’s arguably better to use no name at all than to reach for the wrong one.

The quirky rules surrounding notice pay when an employee is on sick leave during their notice period

When an employee is off sick during their notice period, calculating what they’re owed in notice pay isn’t always straightforward – it can depend on something as quirky as who gave notice, and how much notice was required.

The amount of pay due to an employee during sickness depends largely on their contractual terms and how long they have been off work. Generally:

• If the employer has a policy of paying enhanced sick pay, then the employee may be entitled to full pay (or a percentage of full pay) during their absence. Such enhancements are generally limited to a certain period of time (for example, only being payable for three months of absence in any twelve-month period). Enhanced sick pay is rarely open-ended.
• If no enhanced provisions are in place, the employee (if eligible) is entitled to receive Statutory Sick Pay (SSP) for up to 28 weeks of sickness absence. SSP is currently set at £118.75 per week.

This can all be turned on its head where the employee is given or receives notice to terminate their employment during a period of sickness. In these circumstances, the quirky provisions of sections 87-89 Employment Rights Act 1996 dictate what pay the employee is entitled to. There is no point trying to apply any logic to these provisions. There isn’t any. But employers need to be aware of them in order that the correct payments are made to a departing employee. Here’s a step-by-step guide:

1. The statutory minimum notice requirements are important background information. Section 89 ERA provides that employees are entitled to receive a minimum of one week’s notice from their employer after one month of employment, rising by one week for each year of continuous from two years, up to a maximum of 12 weeks’ notice after 12 years.
2. If an employer gives notice of termination of employment to an employee on sick leave and the notice period applicable is the statutory minimum detailed in 1. (or not more than a week more than this), then the employee is entitled to receive full pay during their notice period.
3. If the employer gives notice of termination of employment and the notice period is at least one week more than the statutory minimum, then the employee is only entitled to receive their sick pay entitlement during their notice period (either SSP, no pay if SSP is already exhausted or employer sick pay if this is applicable).
4. These same rules apply where it is the employee who has given notice. The actual notice period here might be different – the statutory minimum is just one week. However, to work out how much you need to pay for this period, you have to check what the employer notice period would have been – if it would have been statutory minimum or less than one week more, then full pay is payable. If it would have been more, then payment should be at the applicable sick pay rate.

Right to Work: What to do when you’re unsure

If you suspect an employee may not have the right to work in the UK, it’s vital to tread carefully. Continuing to employ someone without the correct immigration status is a serious offence under the Immigration, Asylum and Nationality Act 2006. It could result in civil penalties of up to £20,000 per illegal worker - or even criminal prosecution if the breach was intentional. But while the risk is real, employers must avoid knee-jerk dismissals that could lead to unfair dismissal claims.

Suspension?
Suspension may seem like a safe option, but it’s unlikely to help in right-to-work cases. It doesn’t remove the individual from employment, so the immigration risk remains. It should only be used in cases of serious misconduct or to enable a fair investigation.

Frustration?
Frustration occurs when it’s impossible to perform the employment contract. But a lack of immigration status doesn’t meet this threshold—work can still be performed, it’s just illegal. Frustration will rarely apply.

Illegality?
Illegality is a potentially fair reason for dismissal, but only if you can show that continuing employment would actually breach immigration law—not just that you suspect it might. Lack of documentation alone won’t suffice (as confirmed in Baker v Abellio). Even if you have solid evidence, a fair procedure is still required.

Some Other Substantial Reason (SOSR)?
Where you reasonably believe—mistakenly or not—that an employee may not have the right to work, SOSR could provide a fair reason to dismiss. It’s a useful option where there’s genuine uncertainty, so long as a fair process is followed. This includes investigation, providing the employee with an opportunity to respond, and holding a formal dismissal meeting.

Notice Pay?
If the employee definitely lacks the right to work, you may be able to dismiss without notice. But if there’s any uncertainty, it’s usually safer to provide notice (or pay in lieu) to reduce legal risk.

Key Takeaways for HR:

• Lack of documents does not equal a lack of right to work
• SOSR may be the safest route where legality is unclear
• Always follow a fair process - immigration concerns don’t override employment law

When in doubt, seek legal advice early and balance compliance with fairness.

Interim relief in Employment Tribunal cases: What employers need to know

In most employment tribunal cases, any remedy comes only after liability has been decided. But in certain limited circumstances, a claimant can apply for what's known as interim relief - a fast-tracked remedy designed to preserve their position until the final outcome of their case is known.

What is Interim Relief?

Interim relief allows a tribunal to order temporary reinstatement or re-engagement of a dismissed employee, or - if the employer refuses - to continue their contract (including pay and benefits) until the final hearing. With long delays in the tribunal system, this can leave an employer paying a salary to someone they’ve already dismissed for months or even years. Crucially, there is no mechanism to reclaim those payments if the employee ultimately loses their case.

When is Interim Relief available?

Interim relief is only available in a narrow band of claims, including dismissal for:

• Making a protected disclosure (whistleblowing)
• Trade union membership or activities
• Health and safety representation
• Acting as a trustee of an occupational pension scheme
• Serving as a representative for TUPE or collective redundancy consultation
• Being blacklisted for union activity

The test is stringent: the tribunal must be satisfied that the claimant is likely to succeed in proving unfair dismissal- setting the bar higher than the standard balance of probabilities.

Applications must be made within seven days of dismissal, and employees can bypass Acas Early Conciliation. Often, the first the employer hears of it is when a claim lands directly from the tribunal.

Why it matters

Although the majority of applications fail, the financial and strategic implications of a successful one can be significant. Employers should stay alert to the risk in relevant cases- particularly whistleblowing and union-related dismissals.

Recent developments

The Government recently consulted on extending interim relief to claims involving failure to inform and consult over collective redundancy. However, it has decided not to introduce such an extension, keeping the scope of interim relief tightly restricted.

Takeaway for HR

• Know the red flags: Watch for claims involving whistleblowing or union activity.
• Be prepared: If dismissal is being considered in a high-risk case, line up your evidence early ready to respond to any incoming interim relief application.
• Be strategic: If settlement is on the cards, explore it before an interim relief hearing adds cost and complexity.

Interim relief is rare - but when it hits, it hits hard. Know the risks and prepare.

Vento bands updated

The Vento bands are a tiered system used by Employment Tribunals in England and Wales to determine compensation for "injury to feelings" in discrimination and whistleblowing cases. These bands, named after the case of Vento v Chief Constable of West Yorkshire Police, provide a framework for assessing damages beyond financial losses, acknowledging the emotional distress caused by such incidents. They are updated annually. The 2025 update has now taken effect. In respect of claims presented on or after 6th April 2025, the Vento bands are:

• a lower band of £1,200 to £12,100 (less serious cases);
• a middle band of £12,100 to £36,400 (cases that do not merit an award in the upper band); and,
• an upper band of £36,400 to £60,700 (the most serious cases), with the most exceptional cases capable of exceeding £60,700.

‘Where’s everyone gone’ – the importance of communicating with absent employees

And finally, in the recent Employment tribunal case of Munkevics v Echo Personnel, the Claimant was awarded over £25,000 for claims including constructive dismissal and pregnancy discrimination after the office she worked at was shut down and no-one bothered to tell her. The Claimant was employed by the Respondent as a trainee recruitment consultant. During a period of maternity leave she was initially informed, verbally, that she would be able to return to work on a part-time basis. This offer was later rescinded at short notice and the Claimant resigned. When she turned up at the office to work her notice period, she found it deserted. The Respondent had failed to inform the Claimant that the office had been vacated and cleared out.

The Employment tribunal found that this was pregnancy discrimination. Although this is an extreme example, this case serves as a reminder to employers of the importance of maintaining good communication with employees who are away from the workplace. This is especially important where their absence relates to a protected characteristic such as, as was the situation in this case, pregnancy. Even if no protected characteristic is potentially in play, treating an employee with a lack of respect by not bothering to tell them that their office has shut down leaves the employer exposed to a significant risk that its behaviour will be found to have breached the implied term of mutual trust and confidence, giving the employee the right to resign and, provided they have 2 years’ service, claim constructive dismissal.