Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Transgender Participation and the Equality Act
Haynes v English Blackball Pool Association
The claimant, a professional pool player and transgender woman with a Gender Recognition Certificate, had previously played for the Kent women’s team. In August 2023, the English Blackball Pool Federation amended its rules to restrict female competitions to biological women only. As a result, the claimant could no longer compete in the women’s category, though participation remained open in men’s or open competitions.
She brought a county court claim alleging direct discrimination on the basis of gender reassignment under the Equality Act 2010.
The claim was dismissed. The court held that following the Supreme Court’s ruling in For Women Scotland v Scottish Ministers, the terms “sex” and “woman” in the Equality Act 2010 refer only to biological sex. The correct comparator for the claimant was a biological man who was not transgender, and such a person would also have been excluded from the female category. As a result, there was no less favourable treatment and no discrimination on the ground of gender reassignment.
Although unnecessary to dispose of the claim, the court also considered the sports exception (s.195 EqA) and the single-sex services exception (Schedule 3, para 28 EqA). It held that pool qualifies as a “gender-affected activity” because, on average, men have sex-related advantages in the game, and that excluding biological men was necessary to secure fair competition and proportionate to the legitimate aim of promoting fairness and female participation. Arguments under the Human Rights Act were also rejected, with the court signalling that an appeal would have little prospect of success.
Employer Takeaways
Although outside the employment context, this is the first decision on transgender participation since the For Women Scotland ruling. It reinforces the principle that “sex” under the EqA means biological sex, regardless of a Gender Recognition Certificate. For service providers, sports bodies and potentially employers offering single-sex spaces or activities, the case signals that exclusions based on biological sex may be justified where fairness, safety or legitimate aims are engaged. It also lowers the threshold for what may be deemed a “gender-affected activity”, which could have wide-ranging implications beyond high-contact sports.
Late Amendments and Disability Claims
CX v Secretary of State for Justice – Late Amendments and Disability Claims
The claimant, a probationary prison officer, was dismissed for failing her probation. She brought claims of sex and religion or belief discrimination, harassment, victimisation and whistleblowing-related detriment and dismissal. An unfair dismissal claim was not possible due to her lack of two years’ qualifying service.
After disclosure, she saw an Occupational Health report and an HR note indicating that her depression and anxiety might amount to a disability under the Equality Act 2010. In March 2024, with her case already prepared for hearing, she applied to amend her claim to add new complaints of discrimination arising from disability (s.15 EqA) and failure to make reasonable adjustments (ss.20–21 EqA).
The employment tribunal refused the amendment. It found the proposed new claims raised substantially different issues, including whether the claimant was disabled, what the employer knew or should have known, and how disability related to her absence and performance. These would require fresh disclosure, additional witnesses and extended hearing time, causing hardship to the respondent.
On appeal, the EAT upheld the refusal. It rejected arguments that the amendment was merely a “relabelling” of existing facts. It also found the tribunal had considered, but reasonably rejected, the claimant’s explanation for delay. Importantly, the EAT held that the tribunal had not overlooked the non-financial value of a declaration of disability discrimination but was entitled to conclude that existing claims already allowed remedies, including uncapped compensation and injury to feelings awards.
Employer Takeaways
The decision illustrates the Selkent principles in action: tribunals must balance fairness to both sides when late amendments are sought. Even for litigants in person, a lack of awareness that mental health can amount to a disability will not guarantee permission to add new claims once proceedings are well advanced.
For employers, the ruling underlines that tribunals will resist amendments which would materially expand the scope of litigation and disrupt established timetables.
Post-Employment Whistleblowing Detriment
Day v Lewisham & Greenwich NHS Trust
Dr Day, a junior doctor, raised concerns about patient safety and brought whistleblowing and unfair dismissal claims against his NHS Trust. Those proceedings were settled. Following settlement, the Trust issued statements to the media and other organisations about the case and its outcome. Dr Day brought fresh proceedings, alleging that these public statements were detriments suffered as a result of his protected disclosures.
The employment tribunal accepted that one statement was a detriment but found no causation, ruling instead that the Trust acted on legal advice to mitigate negative press. It also concluded that the claims fell outside s.47B of the Employment Rights Act 1996, as the detriments arose after employment ended.
The Employment Appeal Tribunal dismissed the appeal but clarified important points:
- Scope of s.47B ERA 1996: The tribunal was wrong to hold that post-employment detriments automatically fall outside the whistleblowing protections. Section 47B applies where the detriment is closely connected to employment, such as statements made in the context of tribunal proceedings about disclosures during employment.
- Failure to consider detriment: The ET had not determined whether refusal to withdraw or amend public statements was itself a detriment. However, this error did not affect the outcome.
- Causation: The key issue was causation. The EAT upheld the tribunal’s finding that the Trust’s statements were not materially influenced by Dr Day’s protected disclosures. They were instead motivated by reputational concerns and recruitment pressures.
- Costs: The claimant’s appeal on costs also failed. The EAT agreed that, taken in the round, neither party’s conduct warranted an adverse costs order.
Employer Takeaways
The ruling is significant because it confirms that whistleblowing detriment protections under s.47B ERA 1996 can extend to acts occurring after employment ends. However, claimants must still show a causal link between the detriment and their disclosures. For employers, the case underlines the importance of carefully handling post-employment communications, especially where reputational management intersects with past whistleblowing disputes. For workers, the judgment is a reminder that proving causation remains the decisive hurdle, even where detriment is established.
Travel Time and the NMW
Taylor Services Ltd v HMRC – Travel Time and the NMW
Taylor Services Ltd employed poultry technicians who travelled directly from their homes to farms across the UK, sometimes for journeys lasting many hours. HMRC investigated whether travel to and from these farms should count as “time work” under the National Minimum Wage Regulations 2015. HMRC issued enforcement and penalty notices for underpayment.
The Employment Tribunal initially sided with HMRC, finding that workers were under the employer’s control and so their travel should count as working time. However, the Employment Appeal Tribunal overturned that ruling. HMRC appealed further to the Court of Appeal.
The Court of Appeal dismissed HMRC’s appeal, upholding the EAT decision. It held that travel was not time work, and commuting from home to the first workplace and back again was not “time work” under Regulation 30 of the NMW Regulations. Even though the employer dictated the destination, the workers were not performing duties during travel and could use the time as they wished, subject only to being present in the vehicle.
Under Regulation 34, travel only counts as time work if it takes place when the worker would otherwise be working. These conditions were not met.
Employer Takeaways
The judgment confirms that ordinary commuting, even if lengthy or burdensome, does not need to be paid at the NMW unless it falls within Regulation 34. The Court acknowledged HMRC’s concerns about potential gaps in protection for workers who spend long hours travelling but stressed that only Parliament could change the law.
For employers, the decision provides clarity: unless travel occurs during working hours or meets Regulation 34 conditions, it is not payable as time work. For low-paid or itinerant workers, the case highlights the risk of unpaid travel consuming a substantial part of the working day.
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Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
