In the next 12 months there are expected to be some significant changes in employment law because of a new government and several high-profile employment tribunal cases.
The recent cases explored below are likely to have an impact on businesses and in particular their HR policies and practices.
Consideration needs to be given to the practical steps an employer can take now to protect their business in light of these recent cases.
Unfair dismissal
In Hewston v Ofsted a school inspector employed by Ofsted was dismissed following a single incident involving physical contact with a pupil during a school visit.
The dismissal was challenged by the inspector as there was no clear policy or training addressing such conduct.
The Court of Appeal found that the employment tribunal had erred in upholding his dismissal as fair. The court highlighted the absence of a clear written policy or training on the matter meant that the dismissal was not justified in the circumstances.
This case demonstrates the importance of employers ensuring that their disciplinary policies are clear and that employees receive appropriate training on expected conduct. Taking proactive steps now to review policies and ensure suitable training is in place for employees will support the fairness of any disciplinary action taken later.
Legal definition of a “woman”
In the case of Women Scotland Ltd v The Scottish Ministers the UK Supreme Court held that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex.
The court reasoned that including in the definition of “woman” transgender women holding a gender recognition certificate would disrupt the statute’s coherence, particularly in areas like pregnancy, maternity and sex-based protections.
The court emphasised that this interpretation does not deprive transgender individuals of legal protection. The Equality Act 2010 separately protects those with the characteristic of gender reassignment. Transgender individuals retain protection against direct discrimination, indirect discrimination and harassment.
The practical implications of this case for UK employers will be in relation to workplace policies and equality and diversity training materials.
Employers should review their workplace policies and make any necessary updates to ensure they reflect the legal definition of “man”, “woman” and “sex” as meaning biological sex under the Equality Act 2010.
Care should always be taken by employers to follow the legal framework set out in the Equality Act 2010 when developing equality and diversity policies. Any actions taken to support inclusion should not conflict with the legal definitions around sex.
Any employee training materials should be updated to explain the legal position, including the distinction between biological sex and the protected characteristic of gender reassignment.
It is also important that employees are made aware of the rights and protections afforded to transgender individuals under the law.
Given the legal complexities and importance of compliance in this area, employers will likely find it helpful to seek advice to ensure that policies are inclusive and legally compliant.
Race and sex discrimination
In the case of Ms A Pereira v Wellington Antiques Ltd and JM Wellington, Ms Pereira brought claims against her employer, Wellington Antiques Ltd, and Mr JM Wellington. The claims alleged harassment related to race and sex. The tribunal examined the remarks made that were deemed to be “inherently sexist” and linked to outdated notions of men being primary breadwinners.
The tribunal upheld Pereira’s claims, finding the remarks constituted harassment related to sex. The tribunal’s findings emphasised that such comments perpetuate discriminatory stereotypes and contributed to a hostile working environment.
All employers need to actively challenge discriminatory behaviours in the workplace and take any appropriate disciplinary action necessary. Employers should ensure that their policies are up to date and are enforced. Regular training should be delivered to address and prevent harassment.
Whistleblowing
The Court of Appeal held in the case of Sullivan v Isle of Wight Council that whistleblowing protections do not extend to external job applicants. The reason for this was because an individual seeking employment was in a materially different position from that of an existing employee.
Ms Sullivan therefore was not entitled to whistleblowing protection under the relevant legislation in relation to the concerns raised about potential wrongdoing within the council during the application process.
Under the current UK law, the position is that whistleblowing protections apply to employees and certain workers but not external job applicants. Employers should have a whistleblowing policy in place which confirms the current legal position.
Employers should still follow fair recruitment practices that encourage transparency and address any concerns raised during the hiring process so they can ensure that any allegations raised at a later stage by a job applicant can be successfully defended should an unsubstantiated employment tribunal claim be brought.
Employment law can be complex and an ever-evolving landscape. Employers must keep up to date with the latest case law to ensure they remain compliant with any changes.
Contact an Employment Law Solicitor
Seeking legal advice can help employers stay informed on a wide range of employment law areas, including unfair dismissal, discrimination, whistleblowing, and any changes to be made to associated policies and procedures.
Farleys Solicitors specialise in employment law and HR for businesses and employees. If you or your business requires HR & employment law advice and support in relation to any of the matters mentioned above, please contact us on 0845 287 0939 or contact us by email.
