Employment Law Update – Autumn 2025

In this article we explore some of the recent updates and developments in employment law. Please get in touch if you have any queries in relation to these matters or generally and our employment team will be happy to help.  

Case law

Gender Critical Beliefs

Situations involving the above can be particularly challenging for employers to deal with. There have been several cases in this area, and this is set to continue. What is key for employers is a balancing act between the conflicting beliefs held.

Higgs v Farmor’s School– this case concerned the dismissal of an employee by Farmor’s School due to posts on Facebook expressing gender critical beliefs.

Mrs Higgs claimed she had been directly discriminated against and harassed on the grounds of religion or beliefs.  The Tribunal held her beliefs were protected under the Equality Act 2010, but her dismissal was justified due to the manner of her expression. She appealed and the Employment Appeal Tribunal (EAT) granted the appeal but made no findings and submitted the case back to the Employment Tribunal, rather than ruling in her favour.

Mrs Higgs appealed to the Court of Appeal (CA). The focus of CA was whether the Claimant’s manifestation of her beliefs was protected under the Equality Act and whether the decision to dismiss her was objectively justified. 

The CA held that her belief that gender is binary and that same sex marriage cannot be equated with marriage between a man and a woman was protected under the Equality Act. The CA held the dismissal was not objectively justified and therefore constituted unlawful discrimination.  The court said the language was not grossly offensive and there was no evidence of reputational damage.  They further found no evidence that her beliefs would influence her work and therefore her dismissal was not a proportionate sanction.

There are a couple of other cases on gender critical beliefs which are due to be heard by the EAT towards the end of the year.  These cases are Miller v University of Bristol and Lister v New College Swindon.  We will update you in connection with these cases in due course.

Comment

Employers should not jump to disciplinary action for views expressed.  A careful analysis of all the circumstances is required and there should be a proportionate response.  It is also important for employers to acknowledge both sides. This is a difficult area, and we would recommend that advice is obtained if you are dealing with matters of this nature. 

Whistleblowing

Sullivan v Isle of Wight Council – the Tribunal held that external job applicants cannot benefit from the whistleblowing legislation.  The CA stated that the legislation is aimed at individuals “in work” and the “position of someone seeking work is materially different from someone in work.”

Comment

Employers should welcome this decision.  It provides clarity as to who can bring claims and limits those categories.  Employers should still however ensure they have robust recruitment policies in place.

Constructive Unfair Dismissal

Mr J Marshall v McPherson Limited – this was a case concerning constructive unfair dismissal which provides helpful guidance concerning final straw cases.  The EAT set out the relevant five stage test which is: –

1. What was the employer’s most recent act or omission which the employee says caused or triggered their resignation?
2. Has the employee affirmed the contract since that time?
3. If not, was that act or omission by itself a repudiatory breach of contract?
4. If not, was it part of a course of conduct which, when viewed cumulatively, amounted to a repudiatory breach?
5. Did the employee resign in response to that breach?

The EAT confirmed that these questions are not always easy to answer.  However, depending on the circumstances, a resignation in response to a relatively minor issue may give rise to a successful constructive unfair dismissal claim.

Comment

The Tribunal will take into account all relevant facts in a case when assessing whether an employee resigns in response to an employer’s breaches. Even where the last incident does not appear particularly serious, this does not mean that the claim for constructive unfair dismissal will fail.

Constructive Unfair Dismissal and Disability Discrimination

Wainwright v Lennox– a former senior executive of Lennox was recently awarded over £1.2 million in damages for successful claims for direct disability discrimination and constructive unfair dismissal.

The claimant resigned in response to being permanently replaced whilst on sick leave with cancer.  Her employer had misled her that her cover was temporary.

Comment

Employers should be aware that cancer automatically qualifies as a disability under the Equality Act and act accordingly. Employers should also be aware of the protection under the legislation and manage absence with care, particularly when dealing with cover during absence and should not mislead employees. 

Disclosure of Personal Information

Raine v JD Wetherspoon – an employer was liable for breach of confidence, misuse of private information and breach of data protection laws.

The facts in brief were that an ex-partner of a former employee obtained personal information from the employer by deception, by pretending to be a police officer.  A telephone number was disclosed which resulted in a campaign of harassment against the former employee.

Comment

The case demonstrates the importance of safeguarding employee data.  It also highlights the need for staff to be trained adequately with a view to spotting potential issues and manipulation tactics.

Agency Workers

Lutz v Ryan Air DAC – the CA in this case found that a pilot that had been supplied to an airline on a five-year fixed term contract was covered by the Agency Worker Regulations 2010 (AWR).  

The key question for the court was whether he had been supplied to work “temporarily” to the airline.  This was interpreted as meaning “not permanent” rather than “short term.”

Comment

Employers that engage agency workers should be aware of this case.  Employers should ensure that a full assessment is undertaken to decide whether the Regulations apply or not.  It is recommended that advice is taken due to the complexities in this area. 

Redundancy 

Hendy Group Ltd v Daniel Kennedy 

This case focused on the employer’s failure to consider alternative employment for Mr Kennedy which rendered his dismissal by reason of redundancy unfair. A number of issues were identified in relation to the employer’s approach. There was a lack of support by HR in identifying roles – he was told he could apply for positions advertised on the company website, along with other external candidates and he was required to return his laptop which made things more difficult for him. In addition, several suitable vacancies were ignored, and he was blocked from applying for further interviews when his motivation was questioned in an earlier interview. 

Comment

Consideration of alternative employment is a key part of any fair redundancy process. Positions should be identified and discussed with at risk employees, and they should be provided with appropriate support. They should not be excluded from applying for or being considered for alternative positions. Efforts made to consider and offer alternative employment should be documented.

ADP RPO UK Limited v Joseph de Banks Haycocks

The Claimant in this case was scored and selected for redundancy before he was consulted with. He was not provided with his score until after his dismissal. He raised an appeal about this and claimed his score was too low. 

The tribunal held the redundancy process was fair and any concerns about scoring had been addressed on appeal. On appeal to the EAT by the Claimant, the appeal was allowed as there had been a lack of consultation at a formative stage. It was stated that workforce level consultation was a requirement alongside individual consultation. 

The CA upheld the employer’s appeal and held there is no requirement for general workforce consultation in small scale redundancies. It rejected that “at a formative stage” could only be early in a redundancy process and stated that it simply meant where an employer still has an open mind and the employee can influence the process. It further held that the careful internal appeal rectified any unfairness in the dismissal caused by scoring taking place before consultation. 

Comment

Employers should consult with affected employees on potential pooling, scoring matrix and their actual scoring. However, the case does confirm that lack of general workforce consultation in small scale redundancies will not render a dismissal unfair. It also emphasises the importance of an internal appeal. 

Statutory changes and other guidance 

Employment Rights Bill 

On 15 September 2025 the Bill returned to the House of Commons to consider the proposals of the House of Lords. The proposals of note were as follows: a qualifying period of 6 months for claiming unfair dismissal and the right to guaranteed hours should be a right for the worker to request a guaranteed contract, not an obligation for the company to offer it. These proposals were rejected. The Bill will return to the House of Lords on 28 October, and it is anticipated that it will defer to the Government’s changes. In terms of next steps, it is likely that Royal Assent will follow in early November 2025, with most of the reforms to be phased in from April 2026. 

Gender equality and Neonatal care leave and pay 

The Government published guidance for employers on improving equality at work and Neonatal care leave and pay over the summer. The links for the guidance are below. The changes in relation to Neonatal care were introduced in April 2025. 

https://www.gov.uk/government/publications/how-to-improve-gender-equality-in-the-workplace-actions-for-employers/how-to-improve-gender-equality-in-the-workplace-actions-for-employers#how-you-can-evaluate-actions

https://assets.publishing.service.gov.uk/media/68a8562dbceafd8d0d96a105/neonatal-care-leave-and-pay-employers-technical-guide.pdf

If you require further information in relation to any of these matters and how they might impact your business, please contact:

Vicky Beattie, email: Vicky.Beattie@bbslaw.co.uk, telephone 0161 302 8342

Robert Maddocks email Robert.Maddocks@bbslaw.co.uk, telephone 0161 302 8364

Paul Stedman, email: Paul@bbslaw.co.uk, telephone 0161 302 8380

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