Monthly Bulletin – March

Christian counsellor wins landmark religion or belief discrimination claim

The Court of Appeal has handed down its highly-anticipated judgment in Higgs v Farmor’s School. The case concerned a Christian Claimant who was a secondary school counsellor. She was sacked for gross misconduct following Facebook posts she had made criticising relationship education in primary schools. Her criticism focused on transgender issues. She claimed that her dismissal was discriminatory on grounds of her religious belief – both a lack of belief that someone could change their biological sex and a belief that marriage is an institution between a man and a woman.

In order to fully understand this case, it’s important to look at the special way in which direct religion or belief discrimination operates. Direct discrimination typically means treating someone unfairly due to a protected characteristic, with no justification possible (except for age discrimination). However, religion or belief differs from other characteristics like race or sex because, if you hold a belief, it doesn’t mean anything unless you are able to tell people about it. It is this (referred to as ‘manifestation’) which puts religion or belief discrimination in a particularly interesting position.

This is how the law sees it:

Employers cannot treat employees unfairly because of their religion or beliefs.
Article 9 of the European Convention on Human Rights protects freedom of religion, including the right to manifest beliefs.
Whether an action counts as a manifestation depends on its connection to the belief.
If an employer penalises an employee for how they manifest their belief (rather than the belief itself), the action must be proportionate and justified.

Essentially, direct discrimination based on manifestation of religion or belief is unlawful unless the manifestation is objectionable, and the employer’s response is justified.

Higgs v Farmor’s School: What happened?

The Court of Appeal held that the Claimant’s Facebook posts were a manifestation of her protected beliefs. The Respondent’s decision to dismiss her in response was discriminatory. The Respondent claimed she was dismissed not for manifesting her beliefs, but for the tone of her posts and reputational concerns. The Court of Appeal held that this position was not proportionate or justified. In particular, the Claimant had not expressed these views at work or discriminated against pupils.

How employers should handle religious expression

The Court of Appeal reinforced principles from the Employment Appeal Tribunal (EAT):

Individuals are entitled to manifest their beliefs, even if controversial or offensive to others.

Employers can restrict manifestations if necessary to protect others’ rights and freedoms.

Justification for such limitations depends on the case, requiring assessment of:

Whether the employer had a good enough reason.

Whether the employer took the least intrusive route to achieve its objective.

Whether the objective outweighed the limitation of the employee’s rights.

To aid employers, the EAT outlined key factors to consider:

Content and tone of the manifestation.

Extent of the manifestation.

Audience awareness: did the employee expect a wide or limited reach?

Impact on others’ rights and the employer’s business.

Representation: was it clear the views were personal, or could they be seen as the employers?

Power imbalance: was there a risk of coercion, especially in positions of influence?

Business nature: was there a risk to vulnerable groups?

Intrusiveness of employer’s response: was the restriction proportionate?

Key takeaways for employers

HR teams must ensure any restrictions on religious expression are justified and minimally intrusive. Employers should document clear, objective reasons if limiting religious manifestations to avoid claims of discrimination.

The role of HR in disciplinary investigations

Where serious allegations of misconduct are raised at work and dismissal is a possible outcome for the employee concerned, it is important that employers follow a fair process. HR has an important supporting role to play in this. Here are five things HR should do to get started when faced with a disciplinary investigation:

The Acas Code of Practice on Disciplinary and Grievances is engaged and should be consulted. This is a useful overall guide to any disciplinary process.
Consult all relevant internal policies. Check that there is evidence that they have been communicated. The disciplinary policy is the most obvious – it can be used to help frame the allegation. If the allegation is one of breach of policy, then that policy must also be consulted.
Consider who the appropriate officers are for each stage of the disciplinary process. This can be particularly important where the individual involved holds a senior position. Ideally, you will have separate and independent personnel lined up to handle the investigation, disciplinary and any appeal.
Consider whether the circumstances warrant the employee’s suspension. Generally, this will only be where the allegation is one of gross misconduct; there is a risk of destruction of evidence or of intimidation of witnesses.
Provide any administrative support that the investigatory officer might require. For example, setting up investigatory meetings, sorting out notetaking, and copying evidence.

As important as it is to know what to do to provide HR support to a disciplinary investigation, it is equally important to know what not to do. It is important that the role of HR remains advisory only on matters of procedure and law. The case of Ramphal v Department for Transport confirmed this principle and made clear that the investigatory report must be the work of the investigating officer, and the conclusions reached must be their own.  In this case, HR had heavily amended the report of the investigating officer and changed its proposed conclusions. The Claimant succeeded in an unfair dismissal claim as a result.

Redundancy: the basics

The latest Labour Market Outlook, in which the CIPD polled more than 2,000 employers, found that a third (32%) of businesses planned to reduce their headcount through redundancies or by recruiting fewer staff. Redundancies are going to be a reality for many businesses as we travel through 2025. We have outlined the basics of redundancy as a legal concept below:

Fair reason for dismissal: Redundancy is a potentially fair reason for dismissal under UK employment law, but it must be handled correctly to avoid unfair dismissal claims.

Genuine redundancy situations: A redundancy situation arises when a business closes, relocates, or needs fewer employees to carry out certain work.

Consultation requirements: Employers must engage in meaningful consultation with affected employees. Failure to do so may result in claims for unfair dismissal. Several meetings are generally required.

No legal right to be accompanied: As redundancy dismissals are not concerned with capability or conduct, the legal right to be accompanied by a work colleague or trade union representative at consultation meetings does not arise. However, it is often good practice to allow employees to bring someone with them (and internal redundancy policies often offer this).

Collective consultation obligations: If 20 or more redundancies are proposed within a 90-day period, employers must consult with employee or trade union representatives and notify the government (by submitting an HR1 form). Liability for failure to collectively consult can be up to 90 days’ pay (uncapped).

Selection process: If a selection process is required, employers must use fair selection criteria, such as skills, qualifications, and performance. Discrimination must be avoided.

Alternative employment: As part of efforts to avoid redundancies where possible, employers must make employees aware of any vacancies available within the business. Employees who are pregnant, on family leave or who have recently returned to work following family leave, have a right of first refusal of any suitable alternative employment available.

Statutory redundancy pay: Employees with at least two years of service may be entitled to redundancy pay, calculated based on age, length of service, and weekly pay (subject to a cap). Some employers offer more generous contractual terms.

Notice periods: Employers should give notice in line with contractual and statutory requirements.

Managing redundancies correctly ensures legal compliance and minimises risks while maintaining employee trust and morale.

Handling unauthorised holiday requests: guidance for HR professionals

Employees sometimes take leave without approval, often due to pre-booked trips or misunderstandings. HR professionals should take preventive steps to reduce the risk of such issues arising.

Preventative measures

To avoid unauthorised holiday conflicts, consider:

Clear annual leave policies: Encourage early holiday requests.

Managing expectations: Warn employees not to assume approval and wait for written confirmation before booking trips.

Prompt manager responses: Ensure managers reply swiftly and clearly, particularly to short-notice requests, to avoid confusion.

In Gyftaki v Upton-Hansen Architects, the Claimant, dealing with a family emergency in Greece, mistakenly believed her leave request was approved and booked her travel. The night before departure, her manager denied the request. She responded that she could not postpone and would take unpaid leave. Upon return, she was suspended pending an investigation into unauthorised absence. The Employment Appeal Tribunal (EAT) upheld a constructive unfair dismissal ruling, citing the employer’s failure to promptly respond to her holiday request and the unnecessary suspension.

Key Takeaways for HR

Fair process matters: Disciplining employees for unauthorised leave requires a reasonable and structured approach.

Consider mitigating factors: Not all cases are a blatant disregard for rules; personal emergencies require a measured response.

Avoid hasty actions: Prompt leave decisions and clear communication prevent misunderstandings and potential legal issues.

Taking unauthorised leave can be serious misconduct but handling it fairly and reasonably reduces risks and fosters a positive workplace culture.

5 things all employers ought to know about suspending employees

Suspension can be a useful tool when handling serious misconduct allegations, allowing an employer to preserve evidence and prevent witness intimidation. However, it must be used fairly and reasonably to avoid legal risks. Here are five key points all employers should know:

You cannot usually move a suspended employee onto sick pay
If an employee goes off sick during suspension, the employer cannot switch them to sick pay unless the contract explicitly allows it (Wright v. Seed). HR should review employment contracts to ensure suspension clauses are clear.
Unpaid suspension is likely unlawful
Suspension should usually be on full pay, as it is a neutral act. Suspending without pay prejudges the disciplinary process and could be a fundamental breach of contract, leading to constructive dismissal claims. Even if a contract allows unpaid suspension, it must be exercised reasonably.
Suspension should not be automatic
In Gogay v. Hertfordshire CC, an unjustified suspension breached trust and confidence, leading to constructive dismissal. Employers must ensure suspension is proportionate and necessary, not a default response.
There must be a justifiable reason
Suspension should only be used to protect an investigation, prevent misconduct, or safeguard others. Employers should first consider alternatives like temporary redeployment.
Suspension must be reviewed regularly
The Acas Code states that employers must keep suspension under review and avoid unnecessary delays. A prolonged or unjustified suspension could result in constructive dismissal or breach of contract claims.

Understanding workplace fraud

Fraud in the workplace is a serious offence that can harm businesses financially and damage trust within teams. It involves deliberate deception for financial or personal gain, and while not all fraud is criminally prosecutable, the most severe cases may fall under the Fraud Act 2006.

Understanding workplace fraud is about to become all the more imperative for businesses. From 1 September 2025, large organisations will be required to implement ‘reasonable prevention procedures’ for fraud or face unlimited fines. So now is a good time for HR to get to grips with what ‘fraud’. At the very least, a policy will need to be put in place explaining what fraud is, how to spot it and to encourage reporting. It should be linked to whistleblowing and disciplinary policies.

Fraud is generally listed as an example of gross misconduct in employer disciplinary policies, but it is a term which is not always well understood.

Types of fraud in the workplace

The Fraud Act outlines three key types of fraud:

Fraud by false representation: Providing untrue or misleading information. For example, an employee lying about qualifications to secure a promotion.
Fraud by failing to disclose information: Omitting legally required information, such as hiding an unspent criminal conviction during hiring.
Fraud by abuse of position: Misusing a position of trust, such as embezzling company funds or selling confidential data.

While fraud often involves subtle manipulations, employers should be vigilant for red flags, including unexplained discrepancies in financial records, employees living beyond their means, or secretive behaviour.

What can employers do?

Preventative measures: Regularly update policies, conduct background checks during recruitment, establish strong internal controls and encourage employees to ‘speak up’ by having effective whistleblowing procedures in place.

Act promptly on suspicion: Restrict system access, appoint an investigator, and consider suspension if evidence of fraud emerges.

Take disciplinary action: Make sure that any disciplinary policy includes fraud as an example of gross misconduct and consider summary dismissal if an employee is found, following investigation, to have committed fraud.

Recovery of losses: Fraud is both a civil and criminal offence. If the business has suffered financial loss as a result of employee fraud, then employers can involve the police or pursue civil claims, which have a lower burden of proof than criminal cases.

Taking proactive steps to prevent fraud and responding swiftly to allegations can help protect businesses while maintaining a culture of trust and accountability. It will also be crucially important to place businesses on the front foot in advance of the new duty to prevent fraud which comes into effect in September.

Employee who hid previous gross misconduct dismissal on application form was fairly dismissed

Acts of dishonesty are usually clear for all to see. They do not require much in the way of forensic investigation or nuanced consideration. An employee has either lied, or they haven’t. If they have lied, the employer is then able to take a view as to the appropriate disciplinary sanction flowing from the behaviour.

Where the evidence is not so clear-cut, a recent case highlights that, provided that the employer forms a ‘reasonable’ view on the evidence, any flowing dismissal can still be fair. The test of fairness in misconduct cases is that the employee holds a reasonable belief following a reasonable investigation that the employee has committed an act of gross misconduct. There does not need to be irrefutable proof.

In Easton v Secretary of State for the Home Department (Border Force), the Claimant applied for a job with the Respondent. The application form included a free-text box for ‘Employment History,’ where he listed only years of employment. This concealed a three-month gap after he had been dismissed for gross misconduct from another Home Office role. He did not mention the dismissal or the gap during his interview.

After he was hired, the Respondent discovered his previous dismissal and lack of disclosure. As a result, he was dismissed for gross misconduct. The Claimant brought an unfair dismissal claim.

The employment tribunal held that the dismissal was fair. The Respondent had reasonably concluded, after investigation, that the Claimant had deliberately failed to disclose his previous dismissal and unemployment period. The Claimant appealed, arguing that the Tribunal had not applied sufficient weight to the fact he was being punished for failing to provide information which had not been specifically requested on the form.

The Employment Appeal Tribunal dismissed the appeal, finding that the Respondent had been entitled to conclude that a reasonable applicant would understand that an ‘Employment History’ section required a full and transparent account, including any gaps. It was reasonable for the Respondent to conclude that the Claimant had used years of employment to deliberately conceal the gap.

Decision-makers are able to make findings of fact based on the evidence placed before them. The fact that the employee puts forward an alternative (honest) reason for their behaviour does not mean that the decision-maker is required to accept that reason.

Neonatal Care Leave

To keep HR departments on their toes as they wait for the Employment Rights Bill to be passed, the government has confirmed that the right to neonatal leave and pay will come into force on 6th April this year. Under the new law, eligible employees have a right to take up to 12 weeks’ leave where their child requires seven (or more) days of continuous neonatal care starting within the first 28 days following their birth.

The government has now published regulations supporting the introduction of this new right. The Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 set out the details of eligibility, notification requirements and entitlement. Separately, The Statutory Neonatal Care Pay (General) Regulations 2025 set out the regime for payment during periods of neonatal leave.

HR will need to prepare policies setting out this new right. Managers will need to be aware and be ready to signpost the new right to their reports. Some key points to note include:

The right only applies to employees. It does not apply to workers.

It will be a “day one” right, i.e. there will be no qualifying period of service required.

Parents will not be required to provide proof of their child receiving neonatal care.

Eligible employees are entitled to one week’s leave for every week their child spends in neonatal care, capped at a maximum of twelve weeks.

The leave may be taken while the child is receiving the care or after, as long as it is taken before the end of 68 weeks beginning with the date of the child’s birth.

Where an employee takes neonatal care leave during a period where the child is receiving neonatal care (or in the seven days immediately following discharge), then the employee is able to take neonatal care leave in non-consecutive weeks. This is known as ‘tier 1’ leave.

Where an employee takes accrued neonatal care leave at any point after seven days has elapsed since the child’s discharge from neonatal care, then the employee must take any accrued leave in consecutive weeks. This is known as ‘tier 2’ leave.

Neonatal care leave does not reduce the length of any other statutory leave entitlement.

Workplace relationships – 5 key considerations for HR professionals

It is a fact of life that employees often meet their romantic partners at work. A blanket ban on workplace relationships is going to be unpopular. It’s also, practically, unworkable. Control of the issue is impossible; risk management must be HR’s goal.

Here are five points for HR to note as they navigate the management of risks posed by workplace relationships:

What happens if the relationship breaks down?

A failed workplace relationship can lead to tension, grievances, or even claims of unfair treatment. Consider putting in place a specific policy on personal relationships at work, setting expectations for professionalism.

If the relationship breakdown is causing significant disruption at work, it might be possible to dismiss an employee on the basis that there has been an irretrievable breakdown in the working relationship, relying on the potentially fair reason of ‘some other substantial reason’. You would need to have good evidence that all other options (including redeployment and mediation) had been explored before taking this step.

What if one partner moves to a competitor?

The implications of this very much depends on the position held by the employees involved. If they are in sales or a strategically important position, then it could cause issues. Conflicts of interest, confidentiality concerns, and restrictive covenants come into play. HR should review non-compete clauses and confidentiality agreements to ensure they are enforceable against the departing employee. If the retained employee is able to work remotely, review any hybrid working and IT policy to check you have appropriate controls of confidential information in place (secure passwords etc).

The risk of harassment claims

A relationship that is welcomed at first can later result in harassment allegations if one party continues unwanted advances after a breakup. Employers should ensure robust harassment policies are in place and that training on appropriate workplace conduct is provided.

Power imbalances and conflict of interest risks

Relationships between managers and subordinates can lead to claims of favouritism, conflicts of interest, and coercion concerns. HR should consider voluntary disclosure requirements for relationships that could impact team dynamics.

Mandatory relationship disclosure and the right to a private life

It is important that employers do not overstep the mark in probing workplace relationships. Employers now have a proactive duty to prevent sexual harassment in the workplace. In complying with this duty, it could be seen as important that the employer has an awareness of any romantic relationship which could impact on workplace dynamics. However, mandating the disclosure of relationships is uncommon and may infringe upon employees’ rights to privacy under Article 8 of the Human Rights Act 1998. A balancing exercise must be undertaken. Employees have a right to privacy. Any disclosure requirement should be limited to current relationships. Arguably it is far better to encourage voluntary disclosure rather than mandating it.

While workplace relationships can be positive, they present risks that HR must actively manage. Clear policies, proactive risk management, and legal awareness help prevent issues before they arise.

And finally, ‘Shhhhh…you’re in a library’

In an ironic twist, the British Library has lost a tribunal claim brought by an employee who claimed that her working environment was too noisy. Lidia Kogut sued the library for failing to make reasonable adjustments, according to the Evening Standard.

The tribunal held that Ms Kogut was a disabled person, meaning that the duty to make reasonable adjustments to the workplace was engaged. The provision of a quieter working environment was found to have been a reasonable adjustment which the library should have made to allow Ms Kogut to perform her duties. The library failed to provide her with a quieter workstation or offer an alternative role. She has reportedly been awarded £7,500 in compensation.