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Monthly Bulletin Archive
2nd June 2025
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:
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.
Demotion is a useful but complex tool for managing misconduct, poor performance, or restructuring. Handled incorrectly, it can lead to breach of contract or unfair dismissal claims. Here’s what HR professionals need to know.
Demotion can be an alternative to dismissal for misconduct, but only if there’s an express contractual right to impose it. Without this, an employee agreement is required to avoid legal risks. Even where permitted, it must be a reasonable and proportionate response to avoid constructive unfair dismissal (BBC v Beckett).
If an employee appeals a dismissal, demotion can be offered as a compromise. However, it must still comply with contractual terms or be agreed upon to prevent legal claims.
Demotion can address capability issues, but again, it must be allowed under the employment contract or agreed upon. Even if permitted, employers must follow a fair process, including:
Demotion may result from organisational changes, but significant reductions in responsibility, status, or pay will likely amount to a contractual change. Options include:
If redundancy is the reason for the change, follow redundancy procedures and offer demotion as an alternative employment option where appropriate.
To manage demotion effectively:
Handled well, demotion can retain talent while managing risk, but missteps can be costly.
We have recently marked five years since the start of the COVID-19 pandemic. Whilst COVID-specific memories of shielding, workplace testing, furlough and flexible furlough have faded with the passage of time, one change brought about by the pandemic has had a lasting impact: home working. The order to ‘stay at home’ back in March 2020 precipitated a massive shift in workplace culture. With technological advancements, remote or hybrid working was normalised.
Five years on, there are signs that many employers want to return to the office. Since January, Amazon has required all employees to work in the office five days a week, ending its previous hybrid work model. At the same time, BT required its 50,000 office-based employees across the UK and several other countries to attend three days a week.
The movement towards home or hybrid working was, for most employers, a matter of short-term necessity during the pandemic. An employee’s contractual place of work was not formally changed. Notwithstanding this, employers should not have a blanket rule to get back to the office. To do so gives rise to several areas of legal risk:
Employers can be liable for harassment committed by employees “in the course of employment” under the Equality Act 2010. This may feel unfair, as employers can’t control everything staff say or do. But there’s a key defence: if the employer can show it took all reasonable steps to prevent the harassment from occurring, it may avoid liability.
This defence is rarely successful because it’s a high bar – employers must prove they did everything reasonably possible before the harassment occurred.
Tribunals use a two-part test (from Canniffe v East Riding of Yorkshire Council):
Case spotlight: Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Hammond
This case is a rare success for the defence. During a dispute, a trade union member (Mr Hammond) made a racially abusive comment to Mr Campbell, a union Branch Secretary and Trust employee. While the tribunal found the comment was made, it ruled that the Trust was not liable – and the Employment Appeal Tribunal agreed.
The Trust had taken several proactive steps:
No other reasonable steps were identified during the case, so the defence succeeded.
For sexual harassment, the law now goes further. Section 40A of the Equality Act introduces a proactive duty to take reasonable steps to prevent it. If employers fail, tribunals can increase compensation by up to 25%. While the wording differs slightly, upcoming changes in the Employment Rights Bill are expected to align the two tests.
To strengthen your position:
The Campbell case shows that well-embedded anti-harassment measures can pay off.
Data Subject Access Requests (DSARs) can cause HR headaches. Employees often use them not just to understand how their data is being used, but also to gather information for ongoing grievances or tribunal claims. While the right to access personal data is a cornerstone of data protection law, for HR, a DSAR can signal the start of a highly sensitive and time-consuming process.
The key is not to panic. A DSAR doesn’t mean turning over every document ever created. What it does mean is reviewing any data that personally identifies the requester, including emails, notes, and messages, and making a lawful and timely disclosure. Here are some top tips:
Handled properly, a DSAR is manageable. Mishandled, it can escalate into a legal and reputational issue. A cool head, clear process, and early planning will go a long way.
UK whistleblowing law protects workers from being treated unfairly or dismissed for speaking out about wrongdoing. But how far does that protection go? In Sullivan v Isle of Wight Council, the Court of Appeal confirmed it does not extend to external job applicants – unless they’re applying for NHS roles.
Under s.47B of the Employment Rights Act 1996, whistleblowing protection applies to workers, including employees, agency workers, judges, and some self-employed NHS professionals. However, the law does not cover external candidates- except in the NHS, where specific protections apply during recruitment.
In this case, Ms Sullivan applied for a council job and raised concerns during the hiring process that may have amounted to whistleblowing. After being rejected, she claimed she was treated unfairly because of this. The Court of Appeal dismissed her claim, confirming she had no legal protection under whistleblowing law.
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 the same as 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.
The decision in Sullivan draws a firm line: only current workers and NHS job applicants are protected when they blow the whistle. For HR professionals, this is a reminder that while whistleblowing laws are broad, they don’t cover everyone, and external applicants remain outside the scope.
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:
When an employee is dismissed for gross misconduct, they are generally dismissed without notice or payment in lieu of notice. Their employment ends immediately. Tactical resignations can pose a dilemma for HR where an employee resigns mid-investigation or during a disciplinary process for gross misconduct. Here are five key points:
An employee has the right to resign at any time – even if disciplinary proceedings are ongoing. While frustrating, employers cannot reject a resignation simply because misconduct is being investigated. Resignations can only be rejected where they are viewed as having been given ‘in the heat of the moment’. However, if, following reflection, the employee still wishes to resign then the resignation will be valid.
If the allegations are serious, and especially if they might need to be reported to a regulator or if the employee is in a position of trust, it may be appropriate to complete the disciplinary process even after resignation. This is especially important where a reference may be requested in the future.
Where an employee is serving a long notice period but would have been dismissed summarily if the process had concluded, it might be financially beneficial to complete proceedings. If dismissal for gross misconduct occurs before the notice period ends, you would not need to pay the remainder.
A finding of gross misconduct, even if made after resignation has been validly tendered, might impact on the amount that the employer would otherwise have to pay on exit in relation to benefits such as shares, accrued bonuses and long-term incentive plans. HR should check the wording of each applicable benefit in detail when weighing up whether to continue with an open process.
Be careful how you handle reference requests following a tactical resignation. If you discontinue any disciplinary process, then the allegation cannot usually be referred to in response to any reference request – it has not been subjected to an open process and the employee has not had the opportunity to respond to it. Check your policy on references. You should restrict yourself to a factual reference if you can.
Even the best workplace systems break down sometimes. Employees can, on occasion, end up being overpaid. This might be due to a system error, a miscommunication with payroll or a misunderstanding about whether an employee was off sick or not.
Once an overpayment has been spotted, the employer needs to know its options in terms of recovery. Here is what employers need to know in this area:
The law allows you to recover an overpayment from future pay
If the employee remains in employment, then the Employment Rights Act 1996 specifically allows the employer to recoup the overpayment from later pay packets. This is the case even if the overpayment was the employer’s mistake. There is no legal limit on the amount which can be recovered in each pay period. Employers are allowed to reduce the employee’s pay below National Minimum Wage if necessary.
Although there is no legal limit on what can be deducted each pay period to recoup an overpayment, from an employee relations perspective, employers should consider taking back the overpayment in instalments across a few pay periods. The employee, after all, may not have known that the overpayment was in error and might already have changed their position on the back of it.
Employers who do not take a considered approach risk the employee resigning and claiming constructive unfair dismissal on the basis that the employer’s insensitive handling of the repayment breached the implied term of mutual trust and confidence.
What to do if the employee has left employment
If an overpayment is discovered after an employee has left employment, then it is a lot more difficult to recover any sum due. You have no pay to recover the overpayment from. However, the overpayment still forms a debt owed to the employer. Write to the employee and explain the overpayment, providing evidence as appropriate. Suggest a scheme for agreed repayment of the sum owed. If the employee does not agree to repay then the employer may just decide to leave the matter at that. However, if the sum is substantial or the employer wants to take a clear stand, then they could bring a county court claim for debt recovery. This would involve fixed costs being payable. Employers should seriously consider whether the employee would have the funds to meet the judgment debt if this course of action was pursued.
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.
Here to Help, Not Replace Experts:
The information contained in this blog presented for general informational purposes only. While we strive to provide accurate and up-to-date content, legal and HR practices can evolve rapidly. This blog is not a substitute for professional advice.
For specific questions or concerns regarding your unique situation, we highly recommend taking professional advice and booking a consultation with a Sapphire HR Consultant. Our consultants are experts in the field and can provide tailored guidance to address your specific needs.
We aim to work truly in partnership with our client organisations and to develop a high-quality, competent HR Service for all clients, the HR Provider that they can rely on and who gets to understand the culture and vision of your business.
