Case Law Update Feb 2025 – London

London case law update 2025 blog

by Roger Jeary

A BROAD spectrum of trade unionists and legal experts gathered for the Institute’s regular update on employment case law on 25 February and were treated to a comprehensive and informative tour of key current cases.

Chaired by the Institute’s Director, James Harrison, the gathering benefited from the expertise and knowledge of a team of barristers from Old Square Chambers.

Camille Ibbotson began her session on discrimination with a particular focus on religion and beliefs. Highlighting three specific cases, Camille illustrated the dangers of dismissals relating to belief, tribunals’ willingness to embrace a wider view of the protected characteristic, and the importance of how claimants express their beliefs.

The first case was a recent decision from the Court of Appeal in Higgs v Farmor’s School in which the claimant was a teacher and a practising Christian, dismissed as a result of an allegation of homophobic comments.

Whilst the original Employment Tribunal found she was not dismissed because of her beliefs, this decision was overturned by the Employment Appeals Tribunal (EAT) and subsequently confirmed by the Court of Appeal. Camille drew attention to the finding that this was a case of direct discrimination and in this case there was acceptance that such discrimination can be objectively justified.

The original tribunal had determined that her dismissal was due to the language she had used, but the Court of Appeal disagreed. Camille drew attention to the key issues as being whether language is grossly offensive; that reputational damage must be evidenced; the need to distinguish personal views on social media v the working environment and, finally, evidence of risk that the employee’s views are likely to influence their work or interaction with others in the workplace is likely to be a relevant factor.

In Dr David Miller v University of Bristol, the claimant was dismissed for expressing anti-zionist beliefs after students complained about the content of a lecture. The Tribunal held that his beliefs were protected. They were genuinely held; he was a committed anti-zionist and had deeply held beliefs; the beliefs were a weighty and substantial aspect of human life and behaviour; his evidence was coherent and cogent and finally, that his beliefs were worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

This case demonstrated the extent to which tribunals are open to extending beliefs as protected characteristics.

The final case in this context was Thomas v Surrey and Borders Partnership NHS Foundation Trust. The claimant argued that English nationalism was the reason for his dismissal. The Tribunal had to consider whether his belief was a protected characteristic and found that it was not because of the way in which he expressed his belief. The EAT agreed that it could act as a special belief, but not in the manner in which claimants expressed them.

Camille then moved on to the new duty on employers to prevent sexual harassment in the workplace. She explained that employers had to take reasonable steps which can vary according to the employer and the sector in which they operate. The Equality and Human Rights Commission has set out guidance which Camille explained, and looked at the consequences of these new requirements.

Firstly, employees cannot bring a claim for breach of the preventative duty as such. But if an employee brings a successful claim for sexual harassment the tribunal must then also consider whether the employer has complied with the preventative duty, and if not then compensation can be increased by up to 25%.

Camille outlined the findings in five distinct harassment cases which covered aspects of racial and sexual harassment, the issue of whether a trial period can be a reasonable adjustment in cases of disability and why the perception of the person claiming harassment can be so important to the outcome. Details of all of these cases can be found in the speakers’ slides which are available alongside this blog.

During a lively Q&A session Camille said it was likely that the Higgs case could go to the Supreme Court, but that this process was lengthy and probably wouldn’t be known for four or five months.

Karim Pal, also from Old Square Chambers, focussed on dismissal and whistleblowing claims. He started by recapping the key issues a tribunal must consider when determining unfair dismissal claims including period of service, whether a dismissal has taken place and whether the reason was a fair one. Did the dismissal fall into the range of reasonable responses and did the employer apply fair or proper procedures.

In Vaultex UK Ltd v Bialas (2024 EAT) the employer had adopted a zero-tolerance policy towards discriminatory language, including the overhearing of insensitive jokes which an employee may find offensive. This case arose due to the claimant posting a joke on the company intranet which was self-evidently racist, and complaints were made immediately. The claimant was subjected to a disciplinary process and despite apologising and showing contrition, the employer nevertheless felt they had no option but dismiss in accordance with their no tolerance policy.

Whilst a Tribunal had found that the dismissal was outside the band of reasonable responses, the EAT upheld an appeal against this finding on the grounds that another employer might have imposed a lesser sanction and held that the Tribunal had substituted its view in place of the employer’s.

Karim made the point that if an employee apologises this should be taken into account by the employer, but that the employer may still legitimately choose to dismiss.

Turning to the tricky situation of re-engagement or reinstatement, Karim referred to the case of The British Council v Sellers (2025 EAT). The claimant was accused of inappropriate behaviour and the Tribunal found that he was unfairly dismissed due to an inadequate procedure. At the remedy hearing the claimant sought re-engagement and tribunal found it was practicable for re-engagement.

Karim reminded us of the law distinguishing re-engagement and reinstatement and the issues that tribunals need to take into account when considering such an order. These were: Any wish expressed by the complainant as to the nature of the order to be made; whether it is practicable for the employer to comply with the order; and – where the complainant caused or contributed to some extent to their dismissal – whether it would be just to order reinstatement or re-engagement. The EAT set aside the re-engagement order on the grounds that the Tribunal had misapplied the practicability test.

The next case centred on redundancy selection. In Haycocks v ADP RPO UKMLtd (2024 EWCA) the claim for unfair selection was dismissed by a Tribunal but overturned on appeal to the EAT. However the Court of Appeal restored the Tribunal’s original decision, having determined that a failure to conduct a ‘general workforce consultation’ on smaller redundancies in small companies should not be treated as a requirement.

Finally Karim turned to a whistleblowing case, First Great Western v Moussa (2024 EAT) and reminded the conference of what disclosures qualify for protection. (These are set out in the accompanying slides, as are the detailed facts of the case).

The claim for detriment against the company was allowed but not against named individuals. The case succeeded on the acceptance by the Tribunal that there was ‘collective memory’ within the company which was prejudicial to the claimant. Karim noted that this decision ran contrary to a similar case, William v Lewisham & Greenwich NHS Trust (2024 EAT). which had been decided just two days before this case was heard.

Madeline Stanley outlined developments in the last 12 months on trade-union rights, worker status and other employment issues. Referring to the case of Secretary of State for Business and Trade v Mercer (2024 UKSC) she reminded the conference that if you take part in strike action, whilst it is unlawful to dismiss there is nothing in UK law to protect someone against detriment short of dismissal.

Madeline drew attention to S146 of the 1992 Trade Union and Labour Relations Act which sets out the right not to be subjected to any detriment for trade-union activity, but its wording means that it cannot be used in relation to strike action.

In this case the claimant sought to rely on Article 11 of the European Convention of Human Rights as an international instrument that is designed to give assistance in helping UK courts in interpreting UK legislation. Because Article 11 gives the right to belong to a trade union she argued that the court should take note of this in coming to their decision.

Over a lengthy process a decision from the Supreme Court determined that detriment laws can be permissible in some circumstances when strike action is taken. Despite this finding, S146 could not be interpreted such as to give Ms Mercer a claim, so the claim failed.

But, importantly, the Supreme Court provided a ‘declaration of incompatibility’ and suggested that the current UK legislation was not in line with the convention of Human Rights and that “something needs to change” – although that would be a matter for Parliament and, Madeline suggested, that change may yet take some years to be made.

Madeline then moved to the complex area of worker status. Different categories of workers have different rights, and Madeline gave a number of examples of determining employee status – with gig workers prominent among many cases brought.

An example in the Supreme Court – Professional Game Match Officials v Revenue and Customs Commissioners [2024 UKSC] –  reiterated the basic test for employee status – albeit in a tax case – which turned on the definition of an employee and mutuality of obligation and control.

A further case, Groom v Maritime and Coastguard Agency (2024 EAT), raised an interesting issue involving the claimant, who was a volunteer with the Coastguard. The facts of the case turned on the analysis of the particular arrangements under which he received payments for “any disruption to his personal life”.

Madeline likened this to the normal concept of work, in which your personal life is disrupted in order to turn up to work for an employer. Regardless of being identified and known as a volunteer, a contractual arrangement existed between the Coastguard and the volunteer. He was deemed a worker so enjoyed entitlements of a worker, including holiday pay, national minimum wage etc.

Finally turning to holiday pay, Madeline referred back to the case of Agnew v Chief Constable of the Police Service of NI (2023 UKSC), and its application in the complexities of British Airways plc v Mello and others (2024 EAT).

Agnew had centred on the change in law post 2015 and the ability to claim for holiday pay based on overtime or commission within three months of deduction and any other deductions on previous dates provided they form a ‘series’, and whether a gap of three months or more would break that series and thereby limit the ability to make such claims. In the Agnew case it was established that a three-month gap did not automatically break the ‘series’.

In the more complex Mello case the company had omitted some allowances in calculating holiday pay. In the Mello case a number of allowances hadn’t been included in the company’s calculation of holiday pay, the employer arguing that they each allowance was dealt with separately, but the EAT determined that the deductions were all related to holiday pay and of ‘sufficient similarity’ to the subject matter.

The case has been remitted back to the Tribunal to make a decision, with guidance that the statutory purpose must be kept firmly in mind – that the employee must be protected and that the Tribunal must not assess the tests individually but in the round. Madeline stressed the importance of the case, as it could provide arguments to be used in future cases going back over a longer period.